State Practice of Asian Countries in International Law

in Asian Yearbook of International Law
Open Access

Bangladesh

Sumaiya Khair*

Legislation

Bilateral Or Multilateral Treaty – Money-Laundering – Mutual Legal Assistance – Anti-Corruption—Asset Freezing

The Money Laundering Prevention (Amendment) Act 2015 (Act 25 of 2015)

an Act that imbues the spirit and standards articulated in international instruments namely, the International Convention for the Suppression of the Financing of Terrorism 1999, the United Nations Convention against Transnational Organized Crime 2000, and the United Nations Convention Against Corruption 2003.

The Bangladesh Parliament passed the Money Laundering Prevention (Amendment) Act 2015 on 26 November 2015 with immediate effect. This Act amends some provisions of the Money Laundering Prevention Act 2012 in order to strengthen the effectiveness of the latter. While the amending law does not make direct reference to any international instrument, its enactment reflects attempts at alignment of national legislation with related international law instruments.

Definitions

“Definitions” articulated in Section 2 of the Act of 2012 have undergone some changes. ‘Bangladesh Financial Intelligence Unit’ has replaced ‘Bangladesh Bank’. While the 2012 law primarily vested investigative functions on the Anti-Corruption Commission and officers of any other investigating agency, the term ‘investigating agency’ in the amending Act signifies any agency authorized to investigate ‘predicate offences’ listed in this Act. However, the Criminal Investigation Department of Bangladesh Police shall investigate offences that are subject to investigation by the Bangladesh Police. The Bangladesh Financial Intelligence Unit, in consultation with the Government, can also authorize other investigating agencies to conduct investigations. Whereas the 2012 law included the laundering of or attempt to launder money or property derived from “human trafficking” in the list of offences, the amending Act has extended the ambit by adding to the offence of human trafficking the receipt of or attempting to receive money or any valuable object from anyone with false promises of overseas employment.

Monetary Punishment

The amending Act changed the monetary punishment structure prescribed in Section 4 of the 2012 Act by increasing the amount of the fine and permitting the Court to extend the period of imprisonment in the event of non-payment of the fine within the stipulated time.

Investigation and Trial of Offences

Section 9 of the 2012 Act regarding investigation and trial of predicate offences has been replaced. Now officials of the Investigating Agencies or joint investigating forces constituted by the Bangladesh Financial Intelligence Unit in consultation with the Government may investigate the offences under this Act. In addition to this law, investigating officials will be entitled to exercise their authority provided by other laws in force to investigate and identify property of the accused individual or entity. In undertaking investigation, the Investigating Agency shall be entitled to obtain information on client accounts from banks or financial institutions or from Bangladesh Financial Intelligence Unit.

A Special Judge appointed under Section 3 of the Criminal Law (Amendment) Act (Act xl of 1958) 1958 shall try offences under this Act. By changing Section 12 of the 2012 Act, the amending law enables the Court to freeze or issue croak order against property situated in or outside Bangladesh linked to money laundering or illegally obtained income or property based on a written application of the Investigating Agency. Where it is not possible to identify such property or income, the Court may freeze income or issue croak order against property of equivalent value from other resources belonging to the accused individual or entity.

Consumer Protection—Food Safety – Right To Life – Protection Against Particular Hazards

The Formalin Control Act 2015 [Act 5 of 2015]

an Act enacted to protect the health and well-being of the public by preventing the misuse of preservative substances.

The right to food is explicitly mentioned in different international instruments, namely, the International Covenant on Economic, Social and Cultural Rights 1966; the Convention on the Elimination of All Forms of Discrimination against Women 1979; the Convention on the Rights of the Child 1989; the Convention Relating to the Status of Refugees 1951; and the Convention on the Rights of Persons with Disabilities 2006. The United Nations Guidelines for Consumer Protection (as expanded in 1999) encourages “high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers” for the protection of populations.

The unrestricted use of formalin to preserve and increase the shelf life of fruits, vegetables, fish, meat and other food items by unscrupulous traders has become pervasive in Bangladesh, which poses grave threats to the life, health and well-being of consumers. Recognizing the seriousness of the matter, the Government has enacted The Formalin Control Act, 2015 for containing the misuse of formalin and bringing its production, import, sale and use under a regulatory framework. The law shall be applicable to formalin, formaldehyde and any other government-approved chemicals used for the manufacture of formalin.

The Act introduces a licensing system under which anyone who wishes to import, produce, ship, stock, sell, or use formalin will require a license from the Government (Sections 4–5). The licensing authority or an official duly authorized by it shall have the power to enter into any premises that produce or stock the substance and any shop that sells it for inspection. The authority can confiscate the preservative on the discovery of errors in the books of account and/or faults in the equipment, or if the amount of formalin is found to exceed the permissible limit (Section 7). If deemed necessary, the Authority may close down the stores engaged in trade or transport of the substance for a maximum of 15 days (Section 8). The Act provides for the formation of Formalin Control Committees in every district and sub-district for overseeing the implementation of the law at the local level (Section 9).

Based on the nature of the offence, the Act provides penalties of varying degrees ranging from fines to life imprisonment. Penalties shall apply if someone is found to possess, import, produce, stock, sell, use, and transport formalin without a proper (Section 23). Anyone breaching the conditions of the license shall be liable for a maximum of 7 years imprisonment but not less than 3 years or a fine of Taka 5,00,000 but not less than Taka 2,00,000 or with both (Section 21). The Act also imposes penalties against anyone who is in possession of equipment and raw material or who permits the use of property and equipment for formalin production (Sections 24–25) without proper authorization.

Worker’s Rights—Service Rules – Working Conditions—Health And Safety—Non-Discrimination – Collective Bargaining—Employment Of Adolescents

The Bangladesh Labor Rules 2015

rules formulated by dint of the powers given in Section 351 of the Bangladesh Labor Act, 2006 (Act No. 42 of 2006).

Long after the enactment of the Bangladesh Labor Act in 2006 and following lengthy consultations with employers and workers groups, the Government of Bangladesh introduced the Bangladesh Labor Rules in September 2015 through an official gazette. The Rules encapsulate a wide range of operational matters starting from the introduction of service rules and disciplinary actions to health and safety. The Rules are intended to better conform to the fundamental rights at work as envisaged in the Covenant on Social, Economic and Cultural Rights 1966 and international labor standards on workers’ welfare, health and safety underpinned in various International Labor Organisation (ilo) conventions on freedom of association; collective bargaining; abolition of forced or compulsory labor; non-discrimination and equality of opportunity and treatment in employment and occupation; elimination of child labor; and conditions of employment of young persons. The Labor Rules comprise 367 sections. The key provisions are highlighted below.

Service Rules

The Rules lay out comprehensive conditions of appointment and services in Chapter 2. If any owner of any establishment wishes to introduce Service Rules, he must furnish the Inspector General with a draft copy for approval (Section 3). The provisions in the Service Rules must correspond to the rights of the workers envisaged in The Labor Act 2006. The Service Rules must go through an elaborate vetting process before formal approval (Section 4).

Contracting Firms

Contracting firms that wish to supply workers to any firm or establishment require registration and a formal license in the due process (Section 7). Each contracting firm must deposit security money in order to get the license (Section 11). The Rules impose certain restrictions on licensees and receivers of services. For example, conditions, which are less favorable as described in the law, must not be inserted in the appointment letter executed between the contracting organization and the worker (Section 8).

Conditions of Work

The Labor Rules expound a wide range of issues that are essential for strengthening good governance in the workplace and ensuring workers’ rights. These include inter alia an organogram on workers (Section 18); appointment letters containing necessary information including wages/salary and other financial benefits (Section 19); photo identity cards (Sections 20–24); measures for lay-off, curtailment and discharge from service (Sections 25–28) and procedures for investigating misconduct by workers and related punishments (Sections 29–33).

Employment of Adolescents

Certification of age and competence is essential for employment of adolescents. In the absence of birth and school certificates, a registered physician (Section 34) shall give such certification. The Inspector shall approve working hours for adolescents (Section 35). Adolescents are prohibited from engaging in dangerous and hazardous work (Section 36).

Pregnant Workers

Special provisions are in place for pregnant workers. A pregnant worker shall not be subjected to any behavior or comment that may be construed as derogatory or humiliating; shall not be engaged in any hazardous work or work which potentially constitutes a threat to her health; shall be given priority in terms of using the elevator at work; and shall be provided with congenial facilities for breast-feeding after delivery (Section 37).

Health and Safety

The Rules cover workers’ health protection and security issues in Sections 40–67. Workers must use prescribed safety gears while undertaking dangerous works (Section 67). The Rules also provide elaborate welfare measures for first aid and treatment of workers, cleaning and washing facilities, canteen, and children’s crèche (Sections 76–98). Sections 40–53 focus on healthy working conditions that include issues that range from waste removal, washing, dust and smoke, ventilation, temperature, drinking water, toilet and washroom to building structures, emergency exits, adequate supply of water to fire extinguishers.

Working Hours

The Rules permit adult workers to work for 8 (eight) hours daily (excluding the time for having meals and break period) and maximum of 10 hours provided the workers agree to work overtime on payment (Section 99). Workers employed in construction, re-rolling, steel mills, ship-breaking industry and hazardous works shall be entitled to half an hour’s break after every two hours of work against which the owner cannot deduct any wage (Section 99). Night work for female workers from 10.00 pm to 6.00 am is permissible only if they consent to it (Section 103).

Leave

Workers are entitled to different categories of leave—weekly, casual, sick, festival and annual leave (Sections 100–101, 106–110). Festival leave shall be fixed in consultation with the Joint Bargaining Representative (if any). In the absence of a Joint Bargaining Representative, the owner shall fix the festival leave by discussing the matter with the workers to the extent possible.

Wages

A Wage Board, constituted by representatives of workers, the owner, owner associations, trade union federations or highest representative unions in the absence of federations (Section 121), shall recommend the rate of minimum wage by way of a Government Gazette. Workers must be informed about their wages before they are formally employed (Section 111[4]). A worker who resigns or is laid off, discharged, terminated, or expelled must be paid his/her wages within 7 (seven) working days after his/her separation from the job; compensation and other dues must be paid within a maximum 30 (thirty) working days from the date of separation (Section 112).

Public Sector Procurement—Concession Law-Partnering Contracts—Competition—Market Access—Trade and Service—Anti-Corruption

The Bangladesh Public-Private Partnership Act, 2015 (Act 18 of 2015)

a law enacted with the objective of fulfilling the fundamental needs of citizens and improving their standard of living by accelerating socio-economic development through increased investment in public sector infrastructure for sustainable economic growth. The law provides a robust legal framework to attract national and international private sector investors to partner with the Government and help create opportunities for Bangladesh to successfully participate in the world economy.

The Act reinforces select provisions of the uncitral Guidance on Public-Private Partnership/ Concession Laws (2000), uncitral – Legislative Guide on Privately Finance Infrastructure Projects, 2001, Guidance on PPP/ Concession Laws, oecd Principles for Public Governance of Public-Private Partnerships, the wto Agreement, the General Agreement on Tariffs and Trade (gatt), and the General Agreement on Trade in Services (gats).

The Act provides for the establishment of a Public-Private Partnership Authority (ppp Authority) (Section4 [1]), to be chaired by the Prime Minister (Section 7[1][a]) and overseen by a Board of Governors (Section 6). The ppp Authority, an entity that can sue and be sued in its name, shall be neutral and independent in terms of its financial and administrative activities (Section 4[3]). Section 9 spells out the powers and functions of the pppAuthority at length. Among other things, the ppp Authority is empowered to promulgate and implement ppp related policies, regulations, directives and guidelines; provide decisions on the financial participation and provision of incentives for ppp projects by the Government; frame technical and best practice requirements, pre-qualification and bid documents; develop and vet model ppp contracts; determine the process for selecting private partners; approve the selected bidder for ppp projects; approve the termination of ppp projects; frame the Terms of Reference (ToR) for the appointment of consultants and experts; determine and approve the organogram and salary structure of officers and employees; and oversee and monitor ppp activities.

Chapter 3 sets out the provisions for the identification and approval of ppp projects. The contracting authority or the ppp Authority may take up a project for implementation on a ppp basis by identifying any project from within or outside the Annual Development program of the Government (Section 13). It may declare any project as a national priority for socio-economic development of the country or for urgently mitigating effects of a major adversity faced by the general public (Section 15). The Cabinet Committee has the mandate to grant the in-principle and final approval for ppp projects (Section 14). Under the Act, the Government can provide financing in respect of technical assistance and viability gap, against equity and loan, against linked component and any other activities as may be determined by the ppp Authority (Section 16). Besides, the Government may by general or special order, declare incentives to encourage private sector investment in ppp projects (Section 17).

Chapter 4 highlights the selection process of a private partner for ppp projects in accordance with the regulations as approved by the Board of Governors (Section 20). Any private organization may, in accordance with the prescribed regulations, submit to the contracting authority or the ppp Authority, a ppp project proposal for the construction and operation of new infrastructure or the reconstruction and operation of existing infrastructure of the public sector (Section 20[1]). Unsolicited proposals shall be evaluated in accordance with the said regulations (Section 20[2]). Once finally selected, the private partner shall, either prior to or after the execution of the ppp contract, incorporate a limited company in accordance with provisions of existing laws pertaining to formation of companies (Section 22 [1]).

The Act contains clear provisions to guard against corruption and conflict of interest. The law makes any person found directly or indirectly engaging in any corrupt, fraudulent, coercive or collusive practice in the selection process of a private partner or implementation of a ppp project, liable for corruption or misconduct, or both. The penalty in such cases is prosecution including departmental disciplinary action in line with service rules (Section 24[1]). Furthermore, if any organization is found to be involved in corrupt activities, its pre-qualification, bid or ppp contract, shall be cancelled and declared ineligible, either permanently or temporarily (Section 24[2]). If a person involved in the evaluation of bids for selecting a private partner finds that he has a direct or indirect conflict of interest with any person or organization associated with any concerned project, he shall voluntarily withdraw from such process, failing which he will be held liable for collusive practice (Section 25).

The Act provides a comprehensive checklist of the key issues that must be incorporated in a ppp contract (Section 26). The terms and conditions of partnerships includes the granting the private partner the right to access the land of the project and to impose levy on users in consideration of the supply of public goods and services (Section 28). The law envisages dispute resolution mechanisms to settle differences between contracting parties, which include amicable settlement, mediation and arbitration (Section 30).

Judicial Decisions

War Crimes—Crimes Against Humanity—Genocide—Persecution On Religious & Political Grounds

Salahuddin Qader Chowdhury v. The Chief Prosecutor, International Crimes Tribunal,

8 alr (ad) 2016(2)[Criminal Appeal No. 122 of 2013, Judgement on 29 July, 2015, Appellate Division of the Supreme Court of Bangladesh]

In October 2013, the International Crimes Tribunal (hereafter ict) convicted the appellant, Salahuddin Qader Chowdhury, on charges of crimes against humanity and war crimes committed in 1971 during the Bangladesh war of liberation. The Tribunal sentenced him to death. The appellant took a plea of alibi claiming that he was not present at the scene in Chittagong during the alleged incidents, as he had left for erstwhile West Pakistan for studies at the beginning of the liberation struggle and subsequently went to London where he stayed until 1974.

Considering the materials on record and testimonies of the witnesses, the Court was convinced that the plea of alibi taken by the appellant was concocted and had no basis and that the ict had rightly found the accused guilty of the charges with the exception of one charge. In view of the appellant’s complicity in the incidents of torture and murder, the Court considered the award of death sentence by the ict as appropriate and observed:

[The accused] persecuted civilian and unarmed people, tortured them to death, caused disappearance of innocent people … solely on religious and political grounds … he had [committed] all these brutal offences with [the] specific intention to exterminate the Hindu religious community and his political opponents from that locality. And he eventually accomplished his killing mission of mass people, … [the] rarest of atrocities so far committed with the collaboration of occupying [armed] forces and local allies. Accordingly, it is one of the fittest cases to award such sentences. We find no cogent ground to interfere with the sentences of death.

The verdict clearly resonates with the core principles of international humanitarian laws, human rights against torture and non-discrimination based on religion.
War Crimes—Genocide—Judicial Notice

Ali Ahsan Muhammad Mujahid v. The Chief Prosecutor, International Crimes Tribunal,

24 blt (ad) 2016 [Criminal Appeal No. 103 of 2013, judgement on 16 June, 2015, Appellate Division of the Supreme Court of Bangladesh]

The International Crimes Tribunal (hereafter ict) convicted the appellant, Ali Ahsan Muhammad Mujahid, on charges of crimes against humanity during the Bangladesh war of liberation in 1971. The Tribunal sentenced him to 5 year imprisonment and to life imprisonment on some charges and to death on charges of killing intellectuals. On appeal, the Court considered the oral and documentary evidence together with the appellant’s activities and conduct prior to, during and after the war of liberation. It found the appellant liable for the instigation, abetment and commission of the crime of genocide by planning, proposing and provoking the Al Badr Bahini to kidnap and kill the intellectuals of the country only days before Bangladesh achieved victory in the war of liberation.

Recognizing that this case carried the burden of establishing the historical context in which the alleged crimes occurred, the Court acknowledged the necessity of taking judicial notice of adjudicated facts. By way of reference, the Court drew upon observations of the International Criminal Tribunal for Rwanda (hereafter ictr) in Prosecutor v. Semanza (ICTR-97-20-A, Appeal Judgement on 20th May, 2005) where it was held that taking judicial notice of the facts of common knowledge is a matter of an obligation and not discretionary. In determining what constitutes common knowledge, the ictr stated that these are facts that are so notorious or clearly established or susceptible to determination by references to readily obtainable or authoritative sources, and as such, evidence of their existence is unnecessary. The ictrmaintained that common knowledge concerns facts that are generally known in the Tribunal’s jurisdiction and are reasonably undisputable.

Alluding to the brutality with which Al Badr Bahini committed the killings at the instigation of the appellant, the Court observed that such acts were “comparable with Hitler’s gas chamber genocide”. Upholding the death sentence awarded by the ict, the Court commented:

[The] motive of the killings of intellectuals was cold-blooded with the deliberate design … to cripple the future of this newborn country. It is the duty of the Court to award proper sentence having regard to the nature of the offence, … the degree of criminality, the manner in which it was committed and all attend[ing] circumstances. The occurrences of [the] killing of intellectuals were committed [in an] extremely cruel and beastly manner which demonstrated … the depraved character of the perpetrators. It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts…. The sentence awarded by the Tribunal for [the killing of] intellectuals is not disproportionate in view of the nature of [the] charge and [the] evidence adduced. The people of this earth did not forget Hiroshima and Nagasaki. This Nation did not and shall never forget 1971.

Indemnity—Human Rights Violation—Torture—Custodial Deaths—Equality before Law—Non-Discrimination—Reparation

Z. I. Khan Panna v. Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs and others [Writ Petition No. 7650 of 2012, judgement on 13-09-2015, High Court Division of the Supreme Court of Bangladesh (Special Original Jurisdiction)]

The petitioner filed an application challenging an impugned Act that was promulgated in 2003 which provided indemnity for all disciplined forces and public functionaries for the detention, arrest, search, interrogation and such other actions taken against the citizens between 16th October, 2002 and 9th January, 2003 pursuant to an order dated 16 October 2002. The Government issued the order on the pretext of maintaining law and order in the country, curbing terrorism and recovering illegal arms from miscreants pursuant to which drives under “Operation Clean Heart” was conducted all over the country until 9th January, 2003.

The said Act provided that no legal proceeding shall lie in any Court due to any harm to one’s life, liberty or property or any mental or physical damage stemming therefrom, if such injury was caused by the actions taken by the disciplined forces pursuant to the order dated 16th October, 2002 and other subsequent orders made by the Government. The Act further stipulated that any proceeding initiated in any Court relating to the actions taken pursuant to the above-mentioned orders within the said period and any decision rendered by such Court shall be considered void, ineffective and abated.

Allegations of human rights violations and unlawful acts during the drives by the joint forces during the said period were rife. Both electronic and print media at the time widely reported these crimes, which included harassment, illegal arrests, trespass, illegal seizure of property, torture, mutilation and custodial killings.

The petitioner maintained that the law should be scrapped as being ultra vires the Constitution and the losses suffered by the victims of the so-called ‘Operation Clean Heart’ be redressed by offering compensation to their families.

In arriving at its decision, the Court referred to international law standards on human rights and fundamental freedoms and various case law of the Indian Supreme Court. The Court emphasised that “no one is above law and everybody is subject to law…. In this respect, we are reminded of an oft quoted legal dictum─ ‘Be you ever so high, the law is above you.” Reiterating Bangladesh’s commitment under international law, the Court stated:

Indisputably Bangladesh is a signatory to the United Nations Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights, 1976 and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1987. Apart from the provisions of our Constitution [.....], as a State Party […] Bangladesh is committed to translate into reality the provisions of those international instruments and to see that no one is subjected to torture, intimidation, coercion, degrading treatment, brutality or custodial death save in accordance with law.

Drawing on the above, the Court found the indemnity law to be void ab initio and ultra vires the Constitution and observed:

Any sort of deliberate torture on the victims in the custody of the joint forces or law-enforcing agencies is ex-facie illegal, unconstitutional and condemnable. In that event, they have the right to seek the protection of the law in any independent and impartial Court or Tribunal, as the case may be.… The law-enforcing agencies or the joint forces cannot take the law into their own hands and by doing so, they have infringed the relevant provisions of the Constitution…. By providing blanket indemnity ... to the members of the joint forces and all their actions during the period under reference, a clear discriminatory situation has been created amongst the citizenry which is violative of their fundamental rights as embodied and guaranteed in the Constitution.

On the issue of compensation, the Court observed that the assessment of the quantum of compensation would vary from case to case depending on the facts and circumstances; therefore, no hard and fast rule could be laid down. Since this is a Public Interest Litigation and no affected individual or victim has personally invoked the writ jurisdiction of the High Court Division claiming compensation, the Court refrained from passing any wholesale order of payment of compensation to the victims or their families. However, the Court ruled that they would be entitled to “call in aid the writ jurisdiction of the High Court Division for reparations by way of pecuniary compensation to be paid to them by the State for the unlawful and unconstitutional State actions during the ‘Operation Clean Heart’.” Accordingly, the affected persons/victims of brutalities or torture or the dependents/family members of the deceased in case of custodial deaths during the ‘Operation Clean Heart’ may file cases against concerned members of the joint forces/law-enforcing agencies both under civil and criminal laws of the land. They may also invoke the writ jurisdiction of the High Court Division for compensation, in addition to the reliefs sought for under prevalent civil as well as criminal laws of Bangladesh.

In conclusion, the Court recommended that the State may consider enacting enact a law like the Philippines Human Rights Victims’ Reparation and Recognition Act of 2013 in order to compensate victims/affected persons of human rights violations during Operation Clean Heart.

International Agreements

Promotion and Reciprocal Protection of Investments between the Government of the People’s Republic of Bangladesh and the Government of the Kingdom of Bahrain, 22 December, Manama, Bahrain

The Government of Bangladesh entered into a bilateral agreement with the Government of Bahrain on 22nd December, 2015 in Manama, Bahrain. The purpose of the Agreement is to “expand and deepen economic cooperation on a long-term basis” and “create and maintain favourable conditions for investments” by both countries in each other’s territories.

The Agreement emphasises that investment objectives must be achieved without harming the environment and public health of either state [Article 4]. The Agreement also stipulates that neither of the Contracting Parties shall take any measures for expropriation, nationalization or dispossession against investors of the other party except where such measures (i) are necessary to protect public interest and are taken in due process of the law; (ii) are non-discriminatory; and (iii) are accompanied by payment of prompt, adequate and effective compensation in line with internationally recognized principles of valuation on the basis of the fair market value at the time when the action was taken [Article 6].

According to Article 8 of the Agreement, disputes between a Contracting Party and the investor of the other Contracting Party shall be resolved amicably failing which the matter may be submitted to (i) a competent court in the territory of the Contracting Party where the investment was made; or (ii) the International Center for Settlement of Investment Disputes (icsid); or (iii) an ad hoc tribunal established under the arbitration rules of the United Nations Commission On International Trade Law (uncitral). The arbitral decisions shall be final and binding on the Parties to be executed in accordance to their laws and United Nations Conventions on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) 1955.

In the event of a dispute between the Contracting Parties, the matter should be settled through diplomatic channels failing which the matter shall be referred to an arbitral tribunal [Article 9 (1)(2)]. If any problem arises with regard to the appointment of members of the tribunal, the President of the International Court of Justice shall make the necessary arrangements [Article 9(4)].

Promoting Social Dialogue and Harmonious Industrial Relations in the Bangladesh Ready-Made Garment Industry—Initiative Signed by ilo, Sweden and Bangladesh in New York on 26 September 2015

An agreement to launch a project to enhance rights in the workplace and industrial relations in the Bangladesh ready-made garment sector in line with relevant international labor standards was signed in New York on the margins of the United Nations General Assembly meeting on 26 September 2015. The signatories were the Swedish Minister for International Development Cooperation, the ilo Director General and the Bangladesh Minister of Labor and employment.

The initiative, which will run from November 2015 to December 2020, will receive US$5.4 million from Sweden. In addition to improving dialogue between workers and employers, the initiative seeks to strengthen conciliation and arbitration mechanisms to enhance the capacity of employers and workers to engage in collective bargaining and social dialogue to effectively prevent and resolve workplace disputes. Given that nearly 80% of the workers in this sector are women, this initiative will focus on empowerment of women workers by incorporating their rights and interests in the workplace.

The 1974 India-Bangladesh Land Boundary Agreement Enters into Force on 6 June 2015

Bangladesh and India have resolved a decades-old border dispute through a land exchange agreement that started with a physical exchange of enclaves on July 31, 2015. The exchange of instruments of ratification by Prime Minister Narendra Modi of India and Prime Minister Sheikh Hasina of Bangladesh finally paved the way for the long-standing India-Bangladesh Land Boundary Agreement to enter into force on 6 June 2015 during the Indian Prime Minister’s State visit to Bangladesh.

India and Bangladesh have a land boundary of approximately 4,100 km, which was determined by the 1947 Radcliffe Award as the India-East Pakistan land boundary. However, disputes arose regarding some border issues. Following the independence of Bangladesh in 1971, India and Bangladesh signed the Land Boundary Agreement in 1974 in an attempt to settle the outstanding issues. This Agreement was amended in 2011 by an additional Protocol. The Agreement provides for the exchange of pockets of Indian and Bangladeshi territories and the clarification of the India-Bangladesh border, which remained unresolved following partition in 1947. The implementation of the Land Boundary Agreement deals with three major border issues pertaining to (a) adverse possessions, (b) enclaves, and (c) an un-demarcated land boundary of approximately 6.1 km. The implementation of the Agreement was on hold for various reasons primarily on the part of India.

In October 2009, Bangladesh initiated arbitration proceedings under Annex vii of the of the United Nations Convention on the Law of the Sea 1982. It requested the Tribunal to identify the land boundary between Bangladesh and India and delimit each State’s territorial sea, exclusive economic zone (eez) and continental shelf within and beyond 200 nautical miles, where both States had competing claims. On 7 July 2014, the Arbitral Tribunal issued an award granting approximately 106,613km to Bangladesh and 300,220 km to India, out of a total relevant area of 406,833km. Both India and Bangladesh accepted the decision.

While lending a much-needed clarity in terms of maritime entitlements of both countries, this development is an exemplary example of how States can amicably resolve sovereignty issues and convert them into opportunities for economic and political cooperation.

Agreement between the European Union and the People’s Republic of Bangladesh on Certain Aspects of Air Services, February 2015

An agreement was initiated in February 2015 to strengthen aviation relations between the eu and Bangladesh and to restore bilateral air services agreements between Bangladesh and eu Member States.

The Agreement aims to modernise the legal framework for air services between the Parties and allow any eu airline to operate flights between Bangladesh and any eu Member State where it is established and where a bilateral agreement with Bangladesh exists. The Agreement shall enter into force when the Parties have notified each other in writing that their respective internal procedures necessary for its entry into force have been completed (Article 8). Both Parties are committed to completing the necessary formalities as soon as possible.

Memorandum of Understanding on Education the People’s Republic of Bangladesh and the People’s Republic of China Signed on 24 May 2015

Bangladesh and China signed an mou to promote and strengthen exchanges and cooperation in the field of education, research, and intellectual development between the two countries. Such exchanges will take place at both basic and higher education levels and will extend to technical and vocational training. Under the mou, opportunities will be available for staff learning, research, and scholarships for under-graduate and post-graduate students. The mou also provides for refresher programmes and seminars, conferences and symposiums for capacity development through cross learning.

Agreement between the Government of the Kingdom of Bahrain and the Government of the People’s Republic of Bangladesh for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income Signed in Manama on 22 December 2015

According to this Agreement, where a resident of a Contracting State earns an income in accordance with the provisions of this Agreement, may be taxed in the other Contracting State, the first-mentioned Contracting State shall allow as deduction from the tax on the income of that resident, an amount equal to the income tax paid in that other Contracting State. However, such deduction shall not exceed that part of the income tax as computed before the deduction is made, which is attributable, as the case may be, to the income, which may be taxed in that Contracting State.

Bilateral Agreements, Protocols and mous between the Governments of Indian and Bangladesh Signed on 6 June 2015

India and Bangladesh signed several bilateral agreements, protocols and mous to promote mutual cooperation in the fields of trade, communication, energy, tourism and education and culture on 6 June 2015 during the Indian Prime Minister’s State visit to Bangladesh.

The two nations signed an Agreement on coastal shipping to promote 2-way trade and commerce through ports of both countries; a Protocol on inland water transit and trade (renewal) for mutual use of waterways for trade and passage of goods; an Agreement between Bangladesh Standards and Testing Institution (bsti) and Bureau of Indian Standards (bis) on cooperation in the field of standardisation to eliminate technical barriers to trade and enhance reciprocal market access of products to each other’s countries.; Agreements and Protocols on bus service through Dhaka-Shillong-Guwahati and Kolkata-Dhaka-Agartala for facilitate passenger services; an Agreement between Submarine Cable Company Limited (bsccl) and Bharat Sanchar Nigam Limited (bsnl) for leasing of international bandwidth to boost signal strength of the internet in the North-East of India.

Both countries signed mous between coast guards of both countries to ensure joint marine security and prevent crimes at sea; on the prevention of human trafficking and ensuring speedy rescue, recovery, prosecution and re-integration; on the prevention of smuggling and circulation of fake currency notes; the extending of a new line of credit (LoC) of usd 2 billion by the Indian Government to the Government of Bangladesh for social and infrastructure development; on blue economy and maritime cooperation in the Bay of Bengal and the Indian Ocean for capacity building, training and joint research collaborations; on the use of Chittagong and Mongla ports for the movement of goods to and from India; for a project under iecc (India Endowment for Climate Change of saarc) for supplying efficient and improved cook stoves to 70000 rural households in Bangladesh; on the establishment of Indian special economic zone in Bangladesh to encourage investment; on cultural exchange programme for the years 2015–17; for joint research by the University of Dhaka, Bangladesh and Council of Scientific and Industrial Research, India on Oceanography of the Bay of Bengal; for education and cultural exchange between the University of Rajshahi, Bangladesh and the University of Jamia Millia Islamia, India.

A statement of intent on Bangladesh-India Education Cooperation (adoption) was made which envisages a broad framework to enhance bilateral cooperation in the field of education. A letter of consent was handed over by the Insurance Development and Regulatory Authority (idra), Bangladesh to Life Insurance Corporation (lic) of India to start commercial business operations in Bangladesh through joint ventures.

State Practice of Asian Countries in International LawJapan

Kanami Ishibashi*

Environment

Act on Preventing Environmental Pollution on Mercury and the Amendment to the Air Pollution Control Act

Since 2009, Japan had taken significant leadership as one of the countries which had a bitter experience from toxicity of mercury (well known as Minamata disease which cause methylmercury (MeHg) poisoning to those who ingest fish or shellfish contaminated by the waste discharge of Chisso Co. Ltd. chemical plant). As a result, the text of the Minamata Convention on Mercury was adopted at the Conference in Kumamoto, Japan on 10 October 2013 and opened for signature for one year. It will enter into force on 16 August 2017.

To implement this convention, Japan enacted the Act on Preventing Environmental Pollution on Mercury (Act No. 42 of 2015) and the amendment of the Air Pollution Control Act (Act No. 97 of 1968; Amendment Act No. 41 of 2015). The Convention obliges the parties “to protect the human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds” (Article 1) and requires the parties to prohibit, phase out and control, uses, mining, manufacturing, trades, release and storage of mercury and mercury added products (including wastes). Therefore, the Act on Preventing Environmental Pollution on Mercury prohibits mining of mercury itself (Article 4) and mining and extracting gold using mercury (Article 20). The Act prohibits uses of “designated mercury added products” such as battery, lamp, medical and industrial measuring equipment including thermometer and blood-pressure meter and dental amalgam unless it accords with the usages defined in the Convention (Articles 5–11). Moreover, the Act provides to expand the scope of “designated mercury added product” to include the products which have less mercury rather than the Convention requires or to phase out such use itself by providing deadlines. After such deadlines, the trade of those will also be strictly regulated. Besides, the Act requires the person or the enterprise to assess risks of new mercury added products which is not designated by the Convention if he/she manufactures or sells such products (Articles 13–15).

To ensure the safe and proper storage of mercury, the Act requires the person or enterprise that possesses mercury to report the status of its storage to the Authority periodically (Article 22). And, the Act requires the manufacturing enterprises to indicate voluntarily if products are mercury added product (Article 18) to facilitate the reuse or recycle of such products. The Act provides the reuse or recycle of mercury added products should be subject to environmentally sound control guidelines and should be reported to the Authority periodically (Articles 23–24).

Furthermore, the Air Pollution Act is amended and ensures to implement the part of emission of mercury in the air. Since mercury is liquid at normal temperature and is highly volatile, the regulation of emission to air is very important. Such emission occurs, for example, in coal combustion and incineration of mercury added products as wastes.

Concerning the air pollution caused by mercury, the Convention draws special attention to five “point sources of emissions of mercury and mercury compounds to the atmosphere” as follows: coal-fired power plants; coal-fired industrial boilers; smelting and roasting processes used in the production of non-ferrous metals; waste incineration facilities; cement clinker production facilities (Annex D). Therefore, the Act firstly provides the enterprise to report in advance about new establishment of such facilities (Article 18 (23, 24)), secondly to regulate concentrations of emissions at the outlet of such emissions by using standard set up with best available technology (Article 18 (22)) and the Act even requires the facilities which are not designated by the Convention to make voluntary framework to reduce emissions of mercury, by setting up the standard, measuring concentrations, keeping record and cooperating with the Authority to join the national policy (Article 18 (32, 33)).

Security

Significant Reform of Security Acts: The Role of the Japanese sdf (Self Defense Forces) is Expanded

There were comprehensive reforms of the Japanese Security System and International Peace Support Act (Law Concerning Cooperation and Support Activities to Armed Forces of Foreign Countries, etc. in Situations where the International Community is Collectively Addressing for International Peace and Security (Act No. 77 of 2015)). The Act is newly legislated and major amendments to the security issues are carried out in the ten Acts, the amendment part of which are bundled and named as Peace and Security Legislation Development Act (Act No. 76 of 2015).

The International Peace Support Act includes amendments to existing laws as follows (Act No. of all amendment to the original Acts is No. 76 of 2015):

  1. Self-Defense Forces Act (Act No. 165 of 1954);

  2. International Peace Cooperation Act (Act on Cooperation with United Nations Peacekeeping Operations and Other Operations) (Act No. 79 of 1992);

  3. Act Concerning Measures to Ensure Peace and Security of Japan in Situations that Will Have an Important Influence on Japan’s Peace and Security (Act. No. 60 of 1999);

  4. Ship Inspection Operations Act (Law Concerning Ship Inspection Operations in Situations that Will Have an Important Influence on Japan’s Peace and Security and Other Situations) (Act No. 145 of 2000);

  5. Armed Attack Situations Response Act (Law for Ensuring Peace and Independence of Japan and Security of the State and the People in Armed Attack Situations, etc., and Survived-Threatening Situation) (Act No. 79 of 2003);

  6. The us and Others’ Military Actions Related Measures Act (Law Concerning the Measures Conducted by the Government in Line with us and Other Countries’ Military Actions in Armed Attack Situations, etc., and Survival-Threatening Situation) (Act. No. 113 of 2004);

  7. Act Regarding the Use of Specific Public Facilities (Law Concerning the Use of Specific Public Facilities and Others in Situations including Where an Armed Attack against Japan Occurs) (Act No. 114 of 2004);

  8. Maritime Transportation Restriction Act (Law Concerning the Restriction of Maritime Transportation of Foreign Military Supplies and Others in Armed Attack Situations, etc., and Survived-Threatening Situation) (Act No. 116 of 2004);

  9. Prisoners of War Act (Law Concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, etc., and Survived-Threatening Situation) (Act No. 117 of 2004); and

  10. Act for Establishment of the National Security Council (Act No. 71 of 1986).

In the above legislation, Japan changed its interpretation of Article 9 of the Constitution and adopted new conditions which allow Japan to invoke the use of force as follows:

  1. When an armed attack against Japan has occurred, or when an armed attack against a foreign country that is in a close relationship with Japan occurs and as a result threatens Japan’s survival and poses a clear danger to fundamentally overturn people’s right to life, liberty, and pursuit of happiness;

  2. When there is no appropriate means available to repel the attack, and ensure Japan’s survival and protect its people; and

  3. Use of force to the minimum extent necessary.

Firstly, the new Act, International Peace Support Act (Law Concerning Cooperation and Support Activities to Armed Forces of Foreign Countries, etc. in Situations where the International Community is Collectively Addressing for International Peace and Security) established the permanent system for dispatch of the sdf to support the armed forces operating in conflict areas. This Act brings important differences as follows: Japan does not need any special legislation to dispatch the sdf to the to the conflict areas anymore (which was needed in the past), the Act allows to dispatch the sdf not only under the traditional un resolution (resolutions that decide, call upon, recommend or authorize foreign countries to respond to the situation that threatens the peace and security of the international community) but also under the resolution that regard the situations as a threat to peace or a breach of the peace and call on un member States to respond to the situation concerned. While the dispatch of the sdf needs “resolution” of either unsc or unga, it expands the possibility for the sdf to be dispatched.

Since the Japanese Constitution in principle prohibits the use of force (Article 9 provides “the Japanese people forever renounce … the threat or use of force as a means of settling international disputes”), the use of force had been permitted only as a self-defense measure. However, the Act admits rescue activities such as “Kaketsuke-Keigo” (coming to protection of individuals related to operations in response to urgent request) of the sdf to be commenced by the commanding officers on site and thereby allows the sdf dispatched to use force not only for self-defense but also for accomplishing its mission. The Act cautions that such use of force is not merged with the normal “use of force” and, to avoid any risk for Japan to be dragged into war, provides that such activities are only allowed in the area where combat operations are not actually being conducted.

Secondly, the bundled amendments to the existing laws, named as Peace and Security Legislation Development Act is established.

The key amendments are follows:

  1. Revision of the Self-Defense Forces Law: Rescue missions and use of force not for self defense

    The sdf can operate rescue activities to Japanese nationals overseas involving the use of weapons on the condition that (a) the competent authorities of the country concerned are maintaining public safety and order at the time; (b) no act of combat will be conducted in that area; (c) the country concerned consents to the sdf; (d) there are expected coordination and cooperation between the units of the sdf and the competent authority of the country concerned (Article 84-3); and (e) the sdf personnel are permitted to use weapons, depending on the situation when there are adequate grounds to use weapons to protect the lives and bodies of Japanese nationals and others (Article 94-5).

  2. Revision of the Law Concerning Measures to Ensure the Peace and Security of Japan in Situations in Areas Surrounding Japan

    The amendment to this Act deletes the limits of the previous law related to the area as “in areas surrounding Japan.” The sdf will be operated to respond to such situation and to carry out logistics support activities, search and rescue activities, ship inspection operations, and other measures necessary to respond to situations that will have an important influence on Japan’s peace and security. In addition, one of the significant changes from the previous act is added mission: the New Act allows the “provision of ammunition” and “refueling and maintenance of aircraft ready to takeoff for combat operations.”

  3. Revision of the Ship Inspection Operations Law

    The previous law limits the place as to be conducted only in situations in areas surrounding Japan, but the new Act allows ship inspection in situations threatening international peace and security that the international community is collectively addressing (discussed below) set forth in the International Peace Support Act.

  4. Amendment to the International Peace Cooperation Act

    The previous International Peace Cooperation Act requires five conditions to be met in order to authorize the dispatch of the sdf to the un peacekeeping operations and its task should be limited only to the logistical aspects of pko such as surveillance of election and protection of refugees.

    The above five conditions are:

    • a cease-fire must be in place;

    • the parties to the conflict must have given their consent to the operation;

    • the activities must be conducted in a strictly impartial manner;

    • participation may be suspended or terminated if any of the above conditions ceases to be satisfied; and

    • the use of weapons shall be limited to the minimum necessary to protect life or person of the personnel.

  5. The new Act expands the scope of the sdf’s mission to include so-called “safety-ensuring” operations including “Kaketsuke-Keigo” (coming to protection of individuals related to operations in response to urgent request) and allows the sdf personnel to use force to accomplish such missions. On the other hand, the Act adds extra conditions to be fulfilled. These are, (f) based on resolutions of the General Assembly, the Security Council or the Economic and Social Council of the un; (g) at the request by any international organizations including the un Organs established by the un General Assembly and regional organizations; and (h) at the request of the countries to which the area where those operations are to be conducted belongs.

  6. Revision of Legislation for Responses to Armed Attack Situations

    In addition to the armed attack situations, etc., (an armed attack situation and an anticipated armed attack situation), the Act introduces “Survival-Threatening Situation” (“a situation where an armed attack against a foreign country that is in a close relationship with Japan occurs and as a result threatens Japan’s survival and poses a clear danger to fundamentally overturn people’s right to life, liberty and pursuit of happiness”) and provides a necessary response to such situations.

    Consequently, the relevant acts are also amended to introduce new articles concerning “Survival-Threatening Situation,” such as the Act Related to the Actions of the us Forces and Others, Maritime Transportation Restriction Act, Prisoners of War Act, and Act Regarding the Use of Specific Public Facilities.

State Practice of Asian Countries in International LawKorea

Buhm-Suk Baek*

Municipal Law

Treaties – Jurisdiction Civil

Decision of Supreme Court Decision on the ‘Revocation of Disposition Imposing Corporate Tax’

Supreme Court Decision 2013Du7711 (decided on 26 March 2015)

Issues

One of the main legal issues in this case is the applicability of the Korea–Germany Tax Treaty and the tax rate applicable towards dividend income accrued in the source country (Korea), in the event a German based corporation is not liable for tax in the residence country (Germany).

Judgment

The Court ruled as follows:

A tax treaty is purported to apply to any person who is generally liable to pay tax in the country of domicile by reason of his/her address, residence, place of headquarters or main office, or any other criterion of a similar nature, and as such, any person who is not generally liable to pay tax in the country of residence is not subject to the application of the treaty with respect to income that he/she earned in the source country, as a matter of principle …. [E]ven if the fiscally transparent entity falls under a “foreign corporation” in accordance with Korean corporate tax law but is not subject to general taxation, such as corporate income tax according to German tax law, it cannot be deemed as a corporation under the Korea–Germany Tax Treaty. Thus, with respect to dividend income earned in Korea (the source country), the limited tax rate of 15% is only applicable in accordance with Article 10(2) Item b under the Korea–Germany.

Comment

The Korea–Germany Tax Treaty states that a tax treaty is applicable to any person who is generally liable to pay tax in the country of residence. But this treaty does not stipulate provisions on the applicability as a resident in the case of the so-called fiscally transparent entity, in which its constituent partner rather than the entity itself pays taxes on income deriving from the entity’s activity. Therefore, the Court confirmed in this case that the Korea–Germany Tax Treaty is not applicable to the entity to the extent that its constituent partner does not pay German tax on income earned in the source country.

State Responsibility

Treaties – Jurisdiction – Human Rights

Decision of Supreme Court concerning ‘Damages’

Supreme Court Decision 2013Da208388 (decided on 11 June 2015)

Facts

The plaintiff, who was born in Japan in 1943 as a national of Korea, became a naturalized Japanese citizen and lost Korean nationality in 2006. In 1975, when he/she was a college student, the plaintiff was arrested without a warrant and was detained by the investigators of the Korean Central Intelligence Agency, an institution affiliated with Korean government (Defendant). His/her trial ran for three years on charges of espionage under the National Security Act, and during this trial he/she was detained for one and a half years. The Supreme Court finally remanded the case on grounds of insufficient evidence other than the plaintiff’s confession, and the plaintiff was released. In 2010, the Truth and Reconciliation Commission of Korea confirmed that the Korean Central Intelligence Agency unlawfully detained the plaintiff for a prolonged period subjected to cruel and inhumane treatment. But as the defendant failed to take any affirmative action in spite of the Commission’s finding, the plaintiff brought a lawsuit for State compensation. The defendant responded that such an action was unlawful because the plaintiff is an alien and State compensation was only applicable in cases where a mutual guarantee with a corresponding nation existed. In addition, the defendant argued that in any event, the statute of limitations had run.

Issues

One of the main legal issues was the standard for determining whether a mutual guarantee exists as stipulated in Article 7 of the State Compensation Act, and whether such a mutual guarantee exists between Korea and Japan.

Judgment

The Supreme Court decided as follows:

With a view to preventing any disadvantages to which the Republic of Korea may be unilaterally put and promoting equity in international relations, Article 7 of the State Compensation Act sets out as a prerequisite for an alien’s claim for State compensation…. Demanding that the corresponding nation’s prerequisites for an alien’s claim for State compensation be identical with, or even more lenient than, those of the Republic of Korea would result in an excessive restriction of an alien’s claim for State compensation. It might even have the irrational effect of making foreign countries refuse to protect Korean nationals. Nor would it sit well with today’s realities featuring frequent international exchanges. In this regard, it is reasonable to deem foreign prerequisites to have met the mutual guarantee requirement under Article 7 of the State Compensation Act, so long as: (a) the respective prerequisites for a State compensation claim in Korea and the foreign country are not manifestly disproportionate; (b) the foreign prerequisites are not excessively onerous overall than those of Korea; and thus (c) the foreign prerequisites hardly entail any substantive difference in major aspects. It is sufficient to recognize mutual guarantee by comparison of pertinent prerequisites based on such sources as foreign statutes, precedents, and custom…. [A] treaty does not necessarily have to be in place with the corresponding nation. Even in the absence of a concrete case in which the corresponding nation has recognized the State compensation claim of a Korean national, it is sufficient to have the expectation of recognition of such a claim.

Comment

As the plaintiff was a Japanese national who claimed for State compensation for damages inflicted through the unlawful performance of official duties by a public official of Korea, the court should first review whether a mutual guarantee exists between the Republic of Korea and Japan. And the Court held that such a mutual guarantee exists between the two States.

International Agreements

Free Trade Agreement between the Republic of Korea and Canada

  • Signed on 22 September 2014 in Ottawa, Canada

  • Entered into force on 1 January 2015 (Treaty No. 2216)

Brief Description

  • Consistent with Article xxiv of gatt 1994 and Article v of gats, the Parties agree to establish a free trade zone in accordance with the provisions of this Agreement.

  • Article 2.3-2, Tariff Elimination except as otherwise provided in this Agreement, each Party shall progressively eliminate its customs duties on originating goods in accordance with its Schedule to Annex 2-D and notwithstanding Article 2.3, a Party may impose an agricultural safeguard measure in the form of a higher import duty.

  • Each Party shall accord to service, service providers, investment and investors of the other Party with national treatment and treatment no less favorable than that it accords.Agreement for Cooperation on Climate Change between the Government of the Republic of Korea and the Government of the People’s Republic of China

  • Signed on 29 January 2015 in Beijing, China

  • Entered into force on 28 February 2015 (Treaty No. 2223)

Brief Description of the Purpose and Content of the Agreement

It is adopted with a purpose to strengthen bilateral dialogue and cooperation regarding international negotiations on climate change, and promote joint cooperative projects to combat climate change.

  • To strengthen bilateral dialogue and cooperation on climate change negotiations including implementation of the un Framework Convention on Climate Change.

  • To facilitate and coordinate the implementation of this Agreement, the Parties shall establish a Joint Committee on Climate Change Cooperation.

  • The Parties shall bear the expenses to be incurred in conjunction with the implementation of the cooperative programs and projects between government agencies or institutes under this Agreement on the basis of equality, subject to the availability of resources and in accordance with the applicable national laws and regulations of each Party.

Maritime Labor Convention 2006

  • Signed on 23 February 2006 in Geneva, Switzerland

  • Entered into force on 20 August, 2013

  • Entered into force on 9 January 2015 (in Republic of Korea)

Brief Description of the Purpose and Content of the Agreement

  • This convention applies to ships, whether publicly or privately owned, ordinarily engaged in commercial activities, other than one which navigate exclusively in inland waters or waters within or closely adjacent to, sheltered waters or areas where port regulations apply.

  • Each member shall satisfy itself that the provisions of its laws and regulations respect, in the context of this Convention, the fundamental rights of freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labor, the effective abolition of child labor and the elimination of discrimination in respect of employment and occupation.

  • Every seafarer has the right to a safe and secure workplace that complies with safety standards, right to fair terms of employment and right to decent working and living conditions on board ship.

  • The employment, engagement or work of seafarers under the age of 18 shall be prohibited where the work is likely to jeopardize their health or safety. The types of work in concern shall be determined by national laws or regulations or by the competent authority, after consultation with the ship owners’ and seafarers’ organizations concerned, in accordance with relevant international standards.

  • The terms and conditions for employment of a seafarer shall be set out or referred to in a clear written legally enforceable agreement and shall be consistent with the standards set out in the code and each member shall ensure that seafarers are paid for their services, the hours of work or hours of rest for seafarers are regulated, adequate leave, right to be repatriated.Exchange of Notes between the Government of the Republic of Korea and the Office of the High Commissioner for Human Rights Permitting the Operation of the Field-Based Structure of the Office of the High Commissioner for Human Rights in the Republic of Korea

  • Signed on 22 May 2015 and exchange of notes in Geneva, Switzerland

  • Entered into force 22 May 2015 (Treaty No. 2241)

Brief Description of the Purpose and Content of the Agreement

  • The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall be applicable to the ohchr’s Field-based Structure, as part of the United Nations.

  • The relevant authorities of the Government shall take all appropriate measures to ensure the security and protection of the premises of the Field-based Structure.

  • The Government, in accordance with the relevant United Nations principles and practices and the present exchange of notes, shall respect the freedom of expression of all participants of meetings, seminars, training courses, symposiums, and workshops organized by the Field-based Structure, to which the Convention shall be applicable.

  • The Government shall take all necessary measures, without undue delay, to facilitate the entry into and exit from, and movement.

  • Without prejudice to the privileges, immunities, and facilities accorded by the present exchange of notes, it is the duty of all persons enjoying such privileges, immunities, and facilities to observe the laws and regulations of the Host Country.

Agreement for Cooperation between the Government of the Republic of Korea and the Government of the United States of America concerning Peaceful Uses of Nuclear Energy

  • Signed on 15 June 2015 at Washington, d.c., usa

  • Entered into force on 25 November 2015 (Treaty No. 2262)

Brief Description of the Purpose and Content of the Agreement

  • It is confirmed that the Treaty on the Non-Proliferation of Nuclear Weapons, done on 1 July 1968, to which the Republic of Korea and the United States of America are parties, is the cornerstone of the global nuclear nonproliferation regime and reaffirming their desire to promote universal adherence to the npt.

  • The Parties shall confirm related cooperation process and facilitating routes to enhance cooperation in the areas of reliable nuclear fuel supply, spent fuel management, and storage and retransfers.

  • The Parties shall form a High Level Bilateral Commission to facilitate the Parties’ strategic cooperation and dialogue regarding areas of mutual interest in peaceful nuclear cooperation.

  • The 1972 Agreement shall terminate on the date this Agreement enters into force and nuclear material, moderator material, equipment and components subject to the 1972 Agreement shall become subject to this Agreement upon its entry into force and shall be considered to have been transferred pursuant to this Agreement.

Free Trade Agreement between the Government of the Republic of Korea and the Government of the People’s Republic of China

  • Signed on 1 June 2015 in Seoul

  • Entered into force on 20 December 2015 (Treaty No. 2269)

Brief Description of the Purpose and Content of the Agreement

  • Consistent with Article xxiv of gatt 1994 and Article v of gats, the Parties hereby establish a free trade zone.

  • Each Party shall facilitate and liberalize by progressively reducing or eliminating its customs duties on originating goods of the other Party in accordance with its Schedule to Annex 2-A.

  • Each Party shall accord to service, service providers, investment and investors of the other Party with national treatment and treatment no less favorable than that it accords.

  • The Parties shall enhance cooperation in agriculture, forestry, steel industry, smes, telecommunication, government supply, energy, resources, etc.

Free Trade Agreement between the Government of the Republic of Korea and the Government of the Socialist Republic of Viet Nam

  • Signed on 5 May 2015 at Hanoi

  • Entered into force on 20 December 2015 (Treaty No. 2270)

Brief Description of the Purpose and Content of the Agreement

  • Except as otherwise provided for in this Agreement, each Party shall progressively reduce or eliminate its customs duties on originating goods in accordance with its Schedule.

  • Each Party shall accord to service, service providers, investment and investors of the other Party with national treatment and treatment no less favorable than that it accords.

United Nations Convention against Transnational Organized Crime

  • Adopted on 15 November 2000 in New York, usa

  • Entered into force on 29 September 2003

  • (in Republic of Korea) Entered into force on 5 December 2015

Brief Description of the Purpose and Content of the Agreement

  • This Convention shall apply, except as otherwise herein, to the prevention, investigation and prosecution of transnational organized criminal groups.

  • Each State party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when involved in an organized criminal group, money-laundering, corruption, illicit trafficking are committed intentionally.

  • State Parties shall adopt, to the greatest extent possible within their domestic legal system, such measures as may be necessary to enable confiscation of proceeds of crime derived from offences covered by thins Convention or property the value of which corresponds to that of such proceeds and property, equipment or other instrumentalities used in or destined for use in offences covered by this Convention.

  • States Parties shall afford one another the widest measure of mutual legal assistance in jurisdiction, extradition, mutual legal assistance, joint investigations.

  • Each State Party shall take appropriate measures within its means to provide assistance and protection to victims of offences covered by this Convention, in particular in cases of threat of retaliation or intimidation and shall establish appropriate procedures to provide access to compensation and restitution for victims of offences covered by this Convention.

Free Trade Agreement between the Republic of Korea, of the One Part, and the European Union and Its Member States, of the Other Part

  • Signed on 6 October 2010 in Brussels, Belgium

  • Entered into force on 13 December 2015 (Treaty No. 2263)

Brief Description of the Purpose and Content of the Agreement

  • This agreement is to establish a free trade area in accordance with Article xxiv of the General Agreement on Tariffs and Trade 1994 and Article v of the General Agreement on Trade in Services to liberalize and facilitate trade in goods, services and investment between Parties.

  • Each Party shall eliminate its customs duties on originating goods of the other Party in accordance with its Schedule and enhance cooperation in the non-tariff measures on goods from the application of a Party’s regulation in the areas of electronics, motor vehicles and parts, pharmaceutical products and medical devices and chemicals.

  • Each Party shall accord to service, service providers, investment and investors of the other Party with national treatment and treatment no less favorable than that it accords and prohibit market restricted access.

  • The parties shall achieve an adequate and effective level of protection and enforcement of intellectual property rights particularly in copyright, the rights related to patents, trademarks, service marks, designs, layout- designs (topographies) of integrated circuits, geographical indications, plant varieties and protection of undisclosed information.

  • Recognizing the right of each Party to establish its own levels of environmental and labor protection, and to adopt or modify accordingly its relevant laws and policies, each Party shall seek to ensure that those laws and policies provide for and encourage high levels of environmental and labor protection, consistent with the internationally recognized standards or agreements and shall strive to continue to improve those laws and policies.

  • Establishing the Committee on Outward Processing Zones (opz) on the Korean Peninsula in accordance with Annex iv of the Protocol concerning the Definition of ‘Originating Products’ and Methods of Administrative Cooperation and at the request of the applicant authority, the requested authority shall inform to it whether good imported or exported from the territory of one of the Parties have been properly imported or exported into the territory specifying the customs procedure applied to the goods.

Articles of Agreement of the Asian Infrastructure Investment Bank

  • Adopted on 22 May 2015 in Singapore/People’s Republic of China

  • Entered into force on 25 December 2015

  • Entered into force on 25 December 2015 (Treaty No. 2274) (in Republic of Korea)

Brief Description of the Purpose and Content of the Agreement

  • The purpose of the Bank is to create wealth and improve infrastructure connectivity in Asia by investing in infrastructure and other productive sectors.

  • Membership in the Bank shall be open to members of the International Bank for Reconstruction and Development or the Asian Development Bank.

  • The Bank will be conducted through loan, capital stock, guarantee, and technical assistance.

  • The principle office of the Bank shall be located in Beijing, People’s Republic of China.

  • This Agreement shall enter into force when instruments of ratification acceptance or approval have been deposited by at least ten (10) Signatories whose initial subscriptions in the aggregate comprise not less than fifty (50) per cent of total of such subscription.

State Practice of Asian Countries in International LawMalaysia

Shaun Kang*

Human Rights
Human Rights – Peaceful Assembly – Prior Notice – European Convention on Human Rights – European Court of Human Rights – osce Guidelines on Freedom of Peaceful Assembly
Public Prosecutor v. Yuneswaran a/l Ramaraj

Court: Court of Appeal

Date: 1 October 2015

Published: Malaysian Law Journal, 2015, Volume 6, p. 47.

Facts

The Respondent Mr. Yuneswaran Ramaraj was prosecuted in his capacity as organizer of an unlawful assembly under the Peaceful Assembly Act 2012 (paa). The paa required inter alia, for the organizer of an assembly to notify the police of an intended assembly, 10 days before the taking place of such an assembly. In this appeal, the issue before the Court of Appeal included the question of, whether the 10 days advance notice was a restriction of the constitutional right of assembly, which is provided for by Article 10(1) (b) of the Malaysian Federal Constitution and is a well-recognized right, internationally.

Decision

The Court of Appeal examined whether the requirement of 10 days advance notice was in consonant with international standards. Firstly, the Court expressly recognized the freedom of assembly as an established right under international human rights law. The Court then turned to examine the status of advance notices for peaceful assembly in the European Union. In particular, the Court underlined that Article 11 of the European Convention of Human Rights and Fundamental Freedoms protects the right to assembly, albeit not in an absolute manner. The Convention imposes certain restrictions on the exercise of this right. That said, the Convention does not provide for any requirement of advance notice. The Court then examined the position in several other European countries, and found that the requirement of advance notice was present in all surveyed countries, except in Sweden.

Having accepted that advance notice was consistent with international standards, the Court turned to examine whether the 10-day advance notice was acceptable. The Court examined the legislative intent, and found guidance from the Malaysian Parliament Hansard, where the Minister during the debate of the paa bill underlined that the osce, Guidelines on Freedom of Peaceable Assembly, Europe allows respective States to decide on a reasonable period of advance notice. The purpose of this is to allow adequate time for the relevant State authorities to make the necessary plan and preparation to satisfy their positive obligation.

The Court proceeded to examine three European Court of Human Rights (echr) decisions, a European Commission of Human Rights case, and a communication examined by the un Human Rights Committee (unhrc).

The European Commission on Human Rights, in the case of Reassemblement Jurassien and Unite Jurassienne v. Switzerland found that the giving of a prior or advance notice is consistent with Article 11 of the European Convention on Human Rights. Similarly, in the three echr cases examined, Bukta & Other v. Hungary, echr Application No 25691/04, Eva Molnar v. Hungary, echr Application No. 10346/05 and Sikba Polan, echr Application No. 10659/03 (Dec), the respective courts concluded that even though there is a possibility for spontaneous demonstrations, that is, a demonstration without prior notice, this is only acceptable in exceptional cases. The requirement of prior notice is consistent with the right to freedom of peaceful assembly under Article 11 of the European Convention on Human Rights.

In the unhrc’s examination of the communication of Kivenmaa v Finland, Communication No 412/1990, the Committee found that a requirement to notify the police of a demonstration, 6 hours prior to the demonstration may be compatible with the limitations laid down in Article 21 of the International Convention on Civil and Political Rights (iccpr). In all, the Court held that the imposition of the 10 days prior notice by the paa was in accordance with international norms and that it was constitutional.

Amendment to the Malaysian Child Act in compliance with the 1989 Convention on the Rights of the Child
Human Rights – un Convention on the Rights of the Child – Corporal Punishment – Child Protection

The 1989 Convention on the Rights of the Child (crc) prohibits the use of corporal punishment against a child. In 2006, the Committee on the Rights of the Child in General Comment No.8 (2006), called upon States Parties to take “all appropriate legislative, administrative, social and educational measures to eliminate …” the corporal punishment against children.

Malaysia enacted the Child Act 2001 (Act 611) giving effect to its treaty obligations under the crc, which was ratified in 1995. On 2 December 2015, in line with its obligations under the crc, the Malaysian Government introduced an amendment bill to the Child Act 2001. The amendment inter alia, proposes to abolish whipping of a child offender, focusing on enforcing community service for child offenders and improving child protection through the National Council for Children and Child Welfare Teams. Further, the amendments called for an increase in fine from rm 20,000 to rm 50,000 for child abuse and neglect cases. The amendment was passed by the Malaysian Parliament on 4 May 2016.

Criminal Law
Human Rights – Extradition Treaty between the United States and Malaysia – Dual Criminality – Writ of Habeas Corpus
Amin Ravan v. Menteri Dalam Negeri & Ors.

Court: Federal Court

Date: 14 September 2015

Published: Malaysian Law Journal, 2015, Volume 5, p. 577.

Facts

The appellant is an Iranian national who travelled to Malaysia on 1 October 2012, on a tourist visa. On 5 October 2012, the United States Government requested the Malaysian Government to issue a provisional warrant against the appellant pursuant to Article 11 of the Extradition Treaty between the Government of Malaysia and the Government of the United States of America (“Treaty”). The appellant is wanted by the us authorities for allegedly committing the following offences extraterritorially: smuggling, illegal export and attempted illegal exports as well as for conspiracy to defraud the us Government. The Malaysian authorities acted on this request and obtained a court order to arrest the appellant. The appellant applied for inter alia, a writ of habeas corpus, on the grounds that the dual criminality requirement as provided for by both Article 2 of the Treaty and Section 6 of the Extradition Act was not met. The issue before the Federal Court was whether the requirement of dual criminality was fulfilled, allowing for the committal and extradition of the appellant. The appellant argued that in order to fulfil this requirement, the offences which are extraterritorial in the us must also be offences which are extraterritorial in Malaysia. Both the Sessions Court and High Court disagreed with the appellant, leading to an appeal before the Federal Court.

Decision

The Court examined Article 2(5) of the Treaty which states: “If the offence has been committed outside the territory of the requesting State, extradition shall be granted if the laws of the requested State provided for punishment of an offence committed outside its territory in similar circumstances …”. The prosecutor advanced the argument that by applying the effect approach, the broad conduct approach and the continuing approach, Article 2(5) was inapplicable in the present case, as the appellant was charged within the jurisdiction of the us District Court for the District of Columbia.

Disagreeing with the prosecutor’s argument, the Court found that the central issue was whether the corresponding offences in Malaysia had extraterritorial effect. The Court underlined that in Malaysia, extraterritorial offences are limited to offences committed under the Official Secrets Act, Sedition Act, and to offences under certain chapters of the Penal Code. The Court found that the offences in which the appellant allegedly committed were extraterritorial offences in the us, but not in Malaysia. Article 2(5) of the Treaty, also provides for a requested State to refuse an extradition request in situations where there is no corresponding extraterritorial jurisdiction in that State. On that basis, the Court allowed the appeal and granted the appellant a writ of habeas corpus.

UN SECURITY COUNCIL
Draft un Security Resolution to establish an Ad Hoc International Criminal Tribunal in relation to the downing of Malaysian Airlines Flight mh 17
International Criminal Law – International Criminal Tribunal- International Criminal Law – un Security Council- Air Crash

Malaysia Airlines Flight mh 17 was a scheduled international civilian flight from Amsterdam, the Netherlands to Kuala Lumpur, Malaysia. On 17 July 2014, the aircraft was shot down by a buk surface-to-air missile while flying over Eastern Ukraine.

Following this, on 29 July 2015, Malaysia, a non-permanent member of the Security Council, introduced a draft resolution (S/2015/562), alongside Australia, Belgium, the Netherlands and Ukraine. In presenting the draft resolution, the Malaysian delegate (Transport Minister) recalled the resolve of the Security Council in demanding accountability for the downing of the flight in an earlier resolution, 2166 (2014). He continued by underlining that the establishment of this tribunal will “… send a clear message to the growing number of non-State actors with the ability to target civilian aircraft that such attacks are unacceptable …”. He cautioned that the failure to hold the perpetrators to account would place those who travel by air at greater risk.

In essence, the draft resolution proposes inter alia, for the Security Council to act under Chapter vii of the Charter of the United Nations to establish an International Criminal Tribunal which has jurisdiction over individuals involved in the downing of flight mh 17. The draft resolution also attached a comprehensive statute of the tribunal.

Angola, China and Venezuela abstained from the vote, while all remaining members of the Security Council, with the exception of Russia voted for the adoption of the draft resolution. The Russian Federation exercised its veto as permanent member of the Security Council, resulting in the failure of the Security Council to adopt the resolution.

Terrorism
Report of the Government of Malaysia to the United Nations in Fulfilment of Its Obligations under unsc Resolution 2140 (2014)

Terrorism – un Security Council – Chapter vii un Charter – Yemen – Travel Bans – Assets Freezing

In 2014, the unsc responded to the ongoing political, security, economic and humanitarian challenges in Yemen, adopting un Security Council Resolution 2140 under Chapter viii of the Charter of the United Nations. In that regard, the unsc adopted a further resolution, 2204 (2015). The resolution requires States to ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or individuals or entities within their territories to or for the benefit of identified individuals who were involved in acts threatening the peace, security, or stability of Yemen. Further, the obligation extends to States preventing entry into or transit through their territories. The resolution established the Sanctions Committee which exercises monitoring functions including, to monitor the implementation of measures proscribed by the Resolution and to examine any violations and non-compliance of such measures.

On 8 July 2015, pursuant to this unsc Resolution, Malaysia through its Permanent Mission presented its report to the Chair of the Sanctions Committee. In its report, Malaysia underlined that it had imposed travel bans under the Immigration Act 1959/63, preventing the entry of identified persons from entering, leaving and transiting Malaysia. Pursuant to Section 82 of the Central Bank of Malaysia Act 2009, Malaysia had also instructed relevant financial institutes to freeze assets owned directly or indirectly by individuals identified by the Committee. Malaysia confirmed that it had undertaken investigations into the allegation that there might be assets disguised in Malaysia, related to the designated individuals. The investigation found no such evidence.

Shipping
Implementation of the 2007 Nairobi Convention

Shipping – Treaties – Nairobi Convention – Wrecks Removal – Liability – Financial Security – Insurance – Imo

The 2007 Nairobi International Convention on the Removal of Wrecks (Nairobi Convention) aims to provide the first set of uniform international rules for the prompt and effective removal of wrecks located beyond the territorial sea. The Convention provides the legal basis for coastal States to remove, or have removed, from their coastlines, wrecks which pose a hazard to the safety of navigation or to the marine and coastal environments, or both.

Malaysia ratified the Convention on 28 November 2013. On 14 April 2015, the Convention entered into force and was implemented in Malaysia on the same date. To implement the provisions of this Convention, Malaysia amended the Merchant Shipping Ordinance 1952, inserting Section 381A. The provision requires all ships measuring above 300GT entering or leaving port in Malaysia or any part of Malaysia waters to maintain a contract of insurance or other financial security to cover liability under the Convention. The penalty for failing to comply with the provisions of this section is a minimum fine of 2,000 Malaysian Ringgit, and not exceeding 500,000 Malaysian Ringgit.

Aviation Law
Proclamation of Malaysia Airlines mh 370 as an Accident According to the 1944 Chicago Convention on International Civil Aviation

Aviation – accident investigation – search and rescue – 1944 Chicago convention – Declaration

Malaysian Airlines Flight mh 370 was a scheduled international civilian flight from Kuala Lumpur, Malaysia to Beijing, China. On 8 March 2014, the flight lost contact with air traffic control. Investigations in to the fate and location of the wreckage begun on the same date. Following this, on 29 January 2015, the Malaysian Department for Civil Aviation (dca) officially declared the loss of the aircraft as an accident. The dca made the declaration according to standards set out by Annex 12 and 13 to the Convention on International Civil Aviation 1944 (Chicago Convention), in which Malaysia acceded to on 7 April 1958.

An accident is defined in Annex 13, to include a situation where the aircraft is missing and that, the official search has been terminated. Search is defined in Annex 12 as an operation to locate persons in distress. According to the dca, the search and rescue operations were terminated on 13 April 2014, marking an end to the official search. Accordingly, given that the aircraft remains missing, the definition of an accident for the purposes of Annex 13 to the Chicago Convention, were met.

State Practice of Asian Countries in International LawPhilippines

Jay L. Batongbacal*

Jurisprudence

Environmental Law – Biosafety – Precautionary Principle

International Service for the Acquisition of Agri-Biotech Applications v Greenpeace [g.r. Nos. 209271, 209276, 209301 & 209430. 8 December 2015]

Greenpeace Southeast Asia and a coalition of farmers, scientists, and non-government organizations filed a petition for the issuance of a writ of kalikasan against the International Service for the Acquisition of Agri-Biotech Applications (isaaa), various regulatory agencies of the Philippine government, and the University of the Philippines to stop and prevent the field testing of Bt talong, a genetically modified type of eggplant. The field trials were made pursuant to Administrative Order (dao) 08 – 2002 which prescribed guidelines for the import and release of genetically modified organisms (gmos) in the Philippines. The Court issued a temporary environmental protection order and referred the case to the Court of Appeals for hearing, reception of evidence, and judgment.

The Court of Appeals invalidated dao 08-2002 and permanently enjoined the conduct of field trials after finding that the government’s regulations were insufficient to guarantee the safety of the environment and the health of the people. It invoked the precautionary principle in environmental law and incorporated into the Rules of Procedure in Environmental Cases, noting that the overall safety of Bt talong was not guaranteed, found the introduction of gmos to be an “ecologically imbalancing act” that may cause irreparable and irreversible damage, and considered it a clear and present danger to the people’s right to healthful and balanced ecology. isaaa, as well as several intervenors, sought judicial review of the Court of Appeal’s decision on numerous procedural and substantive grounds. Among the latter, they argued that the Court of Appeals misapplied the precautionary principle.

After reviewing studies and expert testimonies, and summarizing the global debate over gmo crops, the Supreme Court upheld the validity of the injunction until the government took concrete action to perform its regulatory mandates. The Court found that dao 08-2002 only provided the permitting process for gmo field testing and use, and merely supplemented the National Biosafety Framework (previously enacted in Executive Order 514) which in turn required the conduct of detailed risk assessment in accordance with the Cartagena Protocol on Biosafety signed and ratified by the Philippines. The Court determined that while the government adhered to the procedure, it did not properly comply with the requirements for risk assessment necessary to protect against possible environmental damage from gmo crops. Notably, the procedures were not sufficiently transparent, meaningful and participatory, in light of the finding that the government lacked mechanisms to ensure that applicants for gmo testing complied with international biosafety protocols, and yet also previously allowed the entry and use of all gmos as requested by multinational companies. The Court also required the conduct of an environmental impact assessment since gmo testing and use involved new and emerging technologies subject to the Environment Impact Statement System.

The Court also detailed the application of the precautionary principle in the Philippine context. It cited Articles 10 and 11, and Annex iii of the Cartagena Protocol on Biosafety in relation to Rule 20 of the Philippines’ Rules of Procedure in Environmental Cases. It considered the precautionary principle as a principle of last resort for purposes of evidence where application of the regular rules would cause inequity for an environmental plaintiff. These cases include those in which (a) the risks of harm are uncertain, (b) the harm might be irreversible and what is lost is irreplaceable, and (c) the harm that might result would be serious. The case for application of the precautionary principle was deemed strongest when all three features coincide, and in case of doubt, it must be resolved in favor of the constitutional right to a balanced and healthful ecology. This also justified the Court’s decision to affirm the Court of Appeals’ decision.

Criminal Jurisdiction – Immunity from Jurisdiction – Human Rights – International Covenant on Civil and Political Rights

Laude v Ginez-Jabelde [g.r. No. 217456. 24 November 2015]

On 15 December 2014, us Marine Lance Corporal Joseph Scott Pemberton was charged with the crime of murder of Jennifer Laude in Olongapo City. He was detained in Camp Aguinaldo, the general headquarters of the Armed Forces of the Philippines, in accordance with the terms of the Visiting Forces Agreement (vfa) in force between the Philippines and the United States. Marilou Laude, sister of the victim Jennifer, filed a motion for the Armed Forces to surrender custody of Pemberton to the Olongapo City Jail and to allow media coverage of the trial. Judge Ginez-Jabelde denied the motion on procedural grounds, having been filed less than three days before the date of hearing and without the approval of the Public Prosecutor. Laude then brought the matter before the Supreme Court on the argument that the procedural obstacles should be dispensed with, invoking the International Covenant on Civil and Political Rights (iccpr) to which the Philippines is a State party. She also argued that the vfa should be declared unconstitutional for impairing the Court’s power to promulgate rules of procedure because its contains provisions concerning the custody and detention of military personnel undergoing criminal prosecution.

The Court denied the petition, stating that compliance with the procedural due process cannot be justified by general exhortations of human rights. It clarified that the obligations in Article 2 of the iccpr pertain to the establishment of accessible and effective remedies through judicial and administrative mechanisms. Since the existence of the trial itself affirmed a legal system for redress, the petitioner could not use the iccpr to excuse its failure to adhere to simple procedural rules intended to protect the rights of the accused, which are likewise human rights. With respect to the vfa, the Court noted that the issue had previously been adjudicated in the case of Nicolas v. Secretary Romulo et al., [g.r. No. 175888, 11 February 2009], where it declared that international law recognized that foreign armed forces permitted to enter another State’s territory are immune from local jurisdiction except to the extent agreed upon by the parties. Thus, the provisions for custody and detention of visiting military personnel did not impair the Court’s power to promulgate rules of procedure but were normally encountered under similar arrangements around the world. Nothing in the Philippine Constitution prevented such arrangements, and in fact it expressly adopts the generally accepted principles of international law as part of the law of the land.

Nationality – Naturalization – Refugees

Republic v Karbasi [g.r. Nos. 210412. 29 July, 2015]

Kamran Karbasi was born in Iran but fled the country after the fall of the Shah of Iran and during the Iran-Iraq War in 1986. After spending three years in Pakistan, in 1990 he arrived in the Philippines where he was recognized as a person of concern by the United Nations High Commissioner for Refugees. Thereafter he settled, finished college, set up a small business, got married to a Philippine citizen, and applied for and was granted naturalization as a Philippine citizen. His naturalization was opposed by the Office of the Solicitor General (osg) on several grounds, one of them being the lack of reciprocity between the Philippines and Iran in the grant of citizenship through naturalization.

In deciding the case, the Court agreed that the Naturalization Law disqualified subjects from countries who do not give reciprocal rights of naturalization, but also noted that Karbasi successfully established refugee status upon arriving in the Philippines. The country’s obligations as a signatory of the 1951 Convention Relating to the Status of Refugees therefore apply. The Court concluded that since Article 7 of the Convention expressly provides for exemption from reciprocity, while Articles 6 and 34 state a duty to facilitate the assimilation and naturalization of refugees, Karbasi’s status as a refugee must end with the attainment of citizenship. It also stated that the Naturalization Law should be read in light of developments in international human rights law, especially with respect to the status of refugees and stateless persons.

Human Rights – International Covenant on Civil and Political Rights – Right to Run for Public Office

Risos-Vidal v Commission on Elections [g.r. No. 206666, 21 January 2015]

On 12 September 2007, former-President Joseph Ejercito Estrada was convicted of the crime of “plunder,” an offense committed by public officials under Philippine criminal law. The penalties for the crime included life imprisonment, civil interdiction, forfeiture, and a perpetual absolute disqualification from public office. A little more than a month later on 25 October, his successor former-President Gloria Macapagal Arroyo granted a pardon to Estrada. The full text of the pardon stated that Estrada “has publicly committed to no longer seek any elective position or office” and was granted executive clemency and “restored to all his civil and political rights.” Subsequently, he re-entered local politics and ran for the Office of the Mayor of the City of Manila. Petitioner Risos-Vidal filed a case to disqualify Estrada from the election on the ground of his previous conviction for plunder, arguing that the pardon was a conditional pardon that did not remove his disqualification to vote and be voted for public office under the Local Government Code, and that the restoration of such rights needed to be stated in explicit and positive language rather than a simple general statement of restoration to unspecified “civil and political rights”.

The issue in this case is whether the unqualified grant of pardon restored Estrada’s right to vote and be voted for public office. The Court dismissed the petition, viewing the pardon issued by former-President Arroyo to be an absolute pardon that was complete, unqualified, and unambiguous. It rejected the argument that restoration of the right to vote and be voted for public officer needed to be expressly stated on grounds that the power to grant executive clemency could not be limited by legislative action. In support of its conclusion, the Court noted that the International Covenant on Civil and Political Rights, to which the Philippines is a signatory, acknowledges the existence of the right to seek public office as a civil and political right. Hence, the pardon extended to Estrada conferred upon him the ability to again seek an elective position.

International Agreements

Treaties – Agreements Concurred by the Philippine Senate in 2015

25 May 2015

The Philippines issued Resolution No. 85 concurring with the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. The Protocol supplements the Convention on Biological Diversity by providing a framework for the equitable distribution of benefits from genetic resources. In the concurring resolution, the Philippines affirms the role of the Protocol in allowing biodiversity to contribute to development, particularly by promoting incentives for sustainable use.

10 Aug 2015

The Philippines issued Resolution No. 94 concurring with a Protocol Relating to an Amendment to the Convention on International Civil Aviation, which was ratified by the Philippines on 5 May 2014. The Protocol inserts an Article 3 bis to the original Convention, enjoining States from using weapons against civil aircraft. It also enjoins Contracting Parties to take measures to prevent aircraft from flying into its territory without authority.

On the same day, Resolution No. 95 was issued concurring with the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, acceded to by the Philippines on 26 May 2014. The Convention modifies the liability regime for accidental death or injury to passengers of aircraft, and for destruction, loss, damage or delay of baggage or cargo, as well as the jurisdiction for bringing claims therein. The concurring resolution emphasizes the need to ratify the Convention particularly in light of asean integration.

14 December 2015

The Philippines issued three resolutions to concur with agreements for the avoidance of double taxation with respect to taxes on income and capital. The said agreements were made with Turkey (concurred via Resolution No. 107), Italy (Resolution No. 108), and Germany (Resolution No. 109). Among other effects, the agreements allocate taxing jurisdiction between the contracting parties.

Legislative and Administrative Regulations

Human Rights – Rights of the Child – An Act Declaring November of Every Year as National Children’s Month

On 29 May 2015, an Act Declaring November of Every Year as National Children’s Month was enacted. The declaration in the said statute commemorates the adoption of the Convention on the Rights of the Child by the United Nations General Assembly, and seeks to instill its significance in the Philippine consciousness.

Towards that end, several agencies, including the Department of Social Welfare and Development and the Council for the Welfare of Children are tasked to prepare and implement activities to implement and observe National Children’s Month. Local government units and private organizations are similarly encouraged to participate in the commemorative activities.

International Economic Law – Nomenclature and Rates of Duty on Certain Articles – Asia Pacific Economic Cooperation – wto Decision on Waiver Relating to Special Treatment for Rice of the Philippines

On 26 June 2015, the Philippines enacted Executive Order No. 185, titled ‘Modifying the Nomenclature and Rates of Duty on Certain Imported Articles as Provided for Under the Tariff and Customs Code of the Philippines, as Amended, in Order to Implement the Philippine Tariff Commitments on Certain Products Included in the Environmental Goods List under the Asia – Pacific Economic Cooperation’. The Order amended the Tariff and Customs Code of the Philippines by subjecting imported articles to reduced Most Favored Nation rates of duty. It covers articles included in the apec List of Environmental Goods, as endorsed under the 2012 Vladivostok Declaration.

This was followed on 5 November by Executive Order No. 190, an Order ‘Modifying the Most Favored Nation Rates of Duty on Certain Agricultural Products under the Tariff and Customs Code of the Philippines, as Amended, in Order to Implement the Philippine Tariff Commitments under the wto Decision on Waiver Relating to Special Treatment for Rice of the Philippines’. Under the Order, certain rates of duty as listed in the Tariff and Customs Code were amended to apply Most Favored Nation rates. Similarly, on the same date Executive Order No. 191 was issued ‘Modifying the Rates of Duty on Certain Agricultural Products under eo No. 851 (s. 2009) in Order to Implement the Philippines’ asean – Australia – New Zealand Free Trade Area (aanzfta) Tariff Commitments Relating to the wto Decision on Waiver Relating to Special Treatment for Rice of the Philippines’. eo No. 191 adjusts the rates of duty on selected agricultural products to comply with the aanzfta rates on import duty. Both Orders were issued in compliance with a wto decision reinstating special treatment for rice, which allowed the Philippines to impose restrictions on rice importation.

State Practice of Asian Countries in International LawSingapore

Jaclyn Neo* and Rachel Tan Xi’En13

Dispute Resolution Clause in the fidic 1999 Conditions Of Contract (“The Red Book”) – International Arbitration Act

pt Perusahaan Gas Negara (Persero) tbk v crw Joint Operation [2015] 4 slr 364 [27 May 2015]

Facts

The dispute between the parties arose in respect to claims made by crw. The contract between the parties adopted the standard provisions of the 1999 edition of the Conditions of Contract for Construction: For Building and Engineering Works Designed by the Employer (“the Red Book”) published by the International Federation of Consulting Engineers (“fidic”), including the Dispute Resolution Clause.

The Red Book’s Dispute Resolution Clause provides for the following steps:

  • A dispute arising out of the contract must first be referred to a Dispute Adjudication Board (“dab”) for resolution by any party.

  • The dab must issue a decision within 84 days from the referral of the dispute. This decision would be binding on both parties who shall promptly give effect to it, unless and until it shall be revised in an amicable settlement or an arbitral award.

  • Any party unsatisfied with the decision can issue a Notice of Dissatisfaction. If no Notice of Dissatisfaction is issued within 28 days, the decision is final and binding.

  • If a Notice of Dissatisfaction is issued, the parties have up to 56 days to reach an amicable settlement, failing which, parties may commence arbitration pursuant to the parties’ arbitration agreement set out at clause 20.6 of the Dispute Resolution Clause.

  • The arbitration agreement provides that any dispute in respect of which the dab’s decision is not final and binding shall be resolved by arbitration. Additionally, clause 20.7 provides that the failure to comply with a decision, if it becomes final and binding, may be referred to arbitration directly without first being referred to the dab or amicable settlement attempts.

After the dab rendered several decisions on crw’s claims to payment, pt Perusahaan Gas Negara (“pgn”) accepted all the decisions except a decision ordering it to pay crwUS$17,298,834.57 (“the US$17 million award”). pgn issued a notice of dissatisfaction against this award and did not comply with payment.

crw thus commenced arbitration (“the 2009 arbitration”) against pgn in respect of the US$17 million award, seeking a declaration that pgn had an immediate obligation to pay crw. The Arbitral Tribunal found that pgn was required to comply. On appeal, the Singapore High Court set aside the Tribunal’s award. This was upheld by the Court of Appeal, which held that the Tribunal should not have granted a final award requiring compliance without revisiting the merits of the Dispute Resolution Board’s US$17 million award. It further held that compliance with the DAB’s decision should have been dealt with by an interim or partial award after which, in the same arbitration, the merits of the US$17 million award should have been dealt with by way of a final award.

In 2011, crw commenced a second arbitration against pgn (“the 2011 arbitration”) seeking a final determination that pgn was liable to (a) pay crw the US$17 million award, and (b) pending that final determination, a partial or interim award for the same sum with interest. The majority of the Tribunal in the 2011 arbitration found in favour of crw and decided that pgn was obliged to comply with the US$17 million award notwithstanding the issuance of the notice of dissatisfaction and the pending resolution of the primary dispute (the merits of the US$17 million award). The majority also found that compliance with the US$17 million award could be enforced by way of an “interim award” ordering immediate payment of the sum and issued an award in those terms. The dissenting arbitrator in the 2011 arbitration reached the opposite conclusion and viewed that such an award would be provisional in nature and could not be enforced in Singapore.

crw then applied to enforce the 2011 interim award in the Singapore courts and was granted leave to do so by an enforcement order. pgn applied to set aside both the enforcement order and the 2011 interim award. The High Court dismissed pgn’s applications and this dismissal was the subject of appeal in pt Perusahaan.

Judgment

The Court of Appeal unanimously held that once a dab decision was issued, the parties were contractually obliged to give effect to the decision by making timely payments of money notwithstanding the notice of dissatisfaction.

The Court of Appeal had to further decide on whether a dab decision could be enforced by way of an arbitral award notwithstanding that the merits of the decision would be reviewed in an arbitration. First, the majority of the Court of Appeal found that the enforcement of the US$17 million award fell within the scope of the Dispute Resolution Clause, while the minority’s view was that the enforceability dispute was not referable to arbitration. Second, the majority of the Court of Appeal also found that the 2011 interim award was a final award within the meaning of s19B(1) of the International Arbitration Act and was enforceable. The Dispute Resolution Clause imposed an obligation on the parties to comply with a decision of the dab regardless of whether a notice of dissatisfaction was issued and whether the decision would eventually be reversed in part or whole. Further, the 2011 interim award would not be revised by any future awards pertaining to the primary dispute, which was a separate question on the state of final accounts between the parties. Hence, the enforceability dispute was a dispute in its own right, which was capable of being settled by international arbitration.

Prima Facie Standard for Obtaining a Stay Of Court Proceedings in Favour of Arbitration – Whether Minority Oppression Claims are Arbitrable – International Arbitration Act

Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals [2015] 1 slr 373 [26 October 2015]

Facts

The dispute arose out of a share sale agreement entered into by Silica Investors Limited and Lionsgate Holdings Pte Ltd (the second defendant) to purchase approximately 4.2% of the shareholding in Auzminerals Resource Group Limited (the eighth defendant). The share sale agreement contained an arbitration clause. Silica Investors Limited alleged that it had been oppressed as a minority shareholder and sought various reliefs. Some of the defendants applied to stay the proceedings under Section 6 of the International Arbitration Act and/or the inherent jurisdiction of the court. The matter was heard by an Assistant Registrar, who refused to stay the proceedings. The defendants appealed to the High Court, which dismissed their appeal. The defendants appealed again to the Singapore Court of Appeal.

Judgment

The Singapore Court of Appeal held that a court should adopt a prima facie standard of review when hearing an application for a stay under s6 of the International Arbitration Act. The court hearing such a stay application should grant it in favour of arbitration, if the applicant was able to establish prima facie that:

  • there was a valid arbitration agreement;

  • the dispute in the court proceedings (or any part thereof) fell within the scope of the arbitration agreement; and

  • the arbitration agreement was not null and void, inoperative, or incapable of being performed.

The Court of Appeal then dealt with the question of whether minority oppression claims were arbitrable. It referenced English decisions that held that oppressive or unfairly prejudicial conduct were arbitrable. It decided that Silica Investors Limited’s claims were arbitrable and, with reference to decisions from England and Hong Kong, found that there was nothing in principle precluding a Tribunal from resolving the underlying dispute with parties subsequently applying to court for relief that the Tribunal could not award. Furthermore, the Court opined that procedural complexity was not sufficient reason to preclude a dispute from being arbitrable.

Whether Caning Unconstitutional because it Violates Prohibition against Torture at International Law – Whether Torture is Jus Cogens – Dualist And Monist Systems of International Law

Yong Vui Kong v Public Prosecutor [2015] sgca 11 [4 March 2015]

Facts

The Appellant, Yong Vui Kong, had been charged with trafficking in 47.27g of diamorphine, which is an offence under the Misuse of Drugs Act (“mda”). He was convicted after trial and sentenced to death on 14 November 2008. Yong’s sentence of death was held in abeyance as he brought a series of legal challenges against the constitutionality of the mandatory death penalty, the integrity of the clemency process, and the decision to prosecute him for a capital offence while applying for a discontinuance not amounting to an acquittal of various charges under the mda against Yong’s alleged principal and supplier. While these proceedings were ongoing, the Government began a review of the mandatory death penalty and all executions were suspended from July 2011 pending its completion. The review culminated in various pieces of legislation including the amended mda. Under the new s33B of the mda, a person convicted of a drug trafficking offence punishable with death could instead be sentenced to imprisonment for life with caning, or imprisonment for life if the person was only a courier and was suffering from abnormality of mind which substantially impaired his mental responsibility.

Judgment

The Singapore Court of Appeal, in response to submissions made by Yong’s counsel, dealt with the following questions:

  • whether caning constituted a form of torture that was jus cogens;

  • whether international law obligations undertaken either by custom or treaty would automatically be incorporated into domestic law;

  • whether caning was indeed a form of torture at all.

In relation to the first question, the Court accepted that there was strong evidence that the prohibition against torture was jus cogens, noting that there were 155 State parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“cat), and that numerous international courts and tribunals had held that the prohibition of torture was jus cogens.

In relation to the second question, the Court found that there was no automatic incorporation of an international obligation into the domestic sphere. It endorsed a strict dualist approach to the relationship between international and domestic law. As per the dualist theory, the domestic and international law systems were separate and a norm under one system did not automatically cause it to exist and take precedence over laws that existed in another legal system. Hence, a jus cogens norm only admitted of no derogation in the international sphere and did not dictate the position in the domestic sphere.

The Court also endorsed the transformation doctrine in international law, noting that it was logically consistent with the dualist system of international law. Customary international law rules did not have effect domestically until specifically adopted by the legislature or domestic courts. The court also held that even treaty obligations, which arguably possessed greater force than custom, could not be “interpretively incorporated” into domestic law without express adoption by legislation or the domestic courts. Hence, there was essentially no distinction between treaty law and customary international law for the purposes of incorporation into domestic law – both were insufficient to automatically trump a domestic law that was clear and unambiguous on its face.

In any event, the Court’s position was that caning in Singapore did not constitute torture. It noted that the definition of torture in the cat drew a distinction between torture and inhuman punishment. In line with jurisprudence from the European Court of Human Rights, the key difference was in the intensity of the suffering inflicted. Hence, while caning inflicted a considerable level of pain and suffering, it was not of “severe and indiscriminate brutality” which would amount to torture in international law.

International Agreements – Avoidance of Double Taxation

Singapore signed several bilateral treaties concerning double taxation in 2015:

  • 15 January 2015: Singapore and Uruguay signed an Agreement for the Avoidance of Double Taxation, which clarifies the taxing rights of both countries on all forms of income flows arising from cross-border business activities, and minimizes the double taxation of such income. This aims to lower barriers to cross-border investment and boost trade and economic flows between the two countries.

  • 16 January 2015: Singapore and France signed a revised Agreement for the Avoidance of Double Taxation, which offers improved terms for businesses, such as lower withholding tax rates for dividends and includes anti-abuse provisions.

  • 11 June 2015: Singapore and Thailand signed a new Avoidance of Double Taxation Agreement to replace an existing one that has been in force since 15 September 1975. The new Agreement lengthens the threshold period for determining the presence of a permanent establishment and lowers the withholding tax rates for dividends, interest and royalties. It will enter into force after ratification by both countries.

  • 17 November 2015: Singapore and Russia signed a Protocol on 17 November 2015 to amend the existing Singapore-Russia Avoidance of Double Taxation Agreement. The Protocol lengthens the threshold period for determining the presence of a permanent establishment and lowers the withholding tax rates for dividends, interest and royalties, amongst other changes.

  • 18 December 2015: Singapore’s respective bilateral agreements with Ecuador, San Marino and Seychelles for the avoidance of double taxation entered into force on 18 December 2015. The dtas provide clarity on tax matters and eliminate double taxation relating to cross-border transactions between Singapore and the respective contracting jurisdictions.

  • 28 December 2015: The Agreement between the Government of the Republic of Singapore and Government of the Grand Duchy of Luxembourg for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital entered into force on 28 December 2015.

International Agreements – Free Trade Agreement

On 14 November 2015, Turkey and Singapore signed a comprehensive Free Trade Agreement on the sidelines of the G20 Summit in Antalya, Turkey. This is Turkey’s first comprehensive agreement in a single undertaking and comprises Turkey’s first treaty commitments in government procurement and newer elements such as intellectual property rights, e-commerce, competition and transparency.

International Agreements – Strategic Partnerships

On 29 June 2015, Singapore and Australia signed a Joint Declaration on the Comprehensive Strategic Partnership. The partnership will, inter alia, enhance relations in the following ways:

  • Review the Singapore-Australia Free Trade Agreement;

  • Establish a Closer Economic Relationship (cer) that will remove regulatory obstacles and enhance an enabling environment for businesses;

  • Increase consultation and cooperation on regional and global issues including those relating to the asean Regional Forum (arf) and East Asia Summit (eas);

  • Strengthen the defence and security partnership through military and civilian exchanges and postings, access to training areas, and collaboration on transnational crime including on foreign terrorist fighters and de-radicalisation; and

  • Enhance people-to-people ties through collaboration in the arts, culture, heritage, sports, and education.

Further, on 24 November 2015, Singapore and India concluded a Joint Declaration establishing a “Strategic Partnership” between India and Singapore to elevate bilateral relations to a higher level. This was against the backdrop of the 50th anniversary of diplomatic relations between India and Singapore, in conjunction with Prime Minister Narendra Modi’s Official Visit to Singapore from 23 to 24 November 2015. Amongst other aims, the “Strategic Partnership” seeks to increase political exchanges between Singapore and India, enhance defence and security cooperation through regular consultations, scale up trade and investment, strengthen air transport and maritime cooperation, and strengthen legal and judicial cooperation.

International Treaties – International Convention on the Elimination of All Forms of Racial Discrimination

On 19 October 2015, Singapore signed the International Convention on the Elimination of All Forms of Racial Discrimination (“icerd”) in New York and is expected to ratify it in 2017. The government views the signing of the icerd as further entrenching its commitment to eliminate racial discrimination in the country, which it sees as necessary for racial and religious harmony. Under the Singapore constitution, racial discrimination is specifically prohibited under article 12(2).

United Nations Convention on the Law of the Sea – Domestic Incorporation – Deep Seabed Mining Act

The Singapore Parliament passed the Deep Seabed Mining Act 2015 on 12 February 2015, which came into force on 1 April 2015. The purpose of the Act is to fulfil Singapore’s obligations under the United Nations Convention on the Law of the Sea (“unclos”) in relation to deep seabed mining activities. It establishes a licensing regime to ensure that Singaporean companies undertake exploration and exploitation activities in a responsible manner to protect the marine environment.

International Agreement – Hague Convention on Choice of Court Agreements

Singapore signed the Hague Convention on Choice of Court Agreements on 25 March 2015. The Convention aims to ensure that exclusive choice of court agreements in favour of Contracting States are effectively enforced, and that judgments rendered by the chosen courts are recognized and enforced in Contracting States. This enhances Singapore’s position as a dispute resolution hub in Asia as a dispute must be heard in Singapore if a Singapore court is the chosen court of an exclusive choice of court agreement covered by the Convention. Further, courts of other Contracting States will be obliged to recognize and enforce Singapore court judgments on that dispute, enhancing the enforceability of Singapore court judgments, including those of the Singapore International Commercial Court.

Asian Infrastructure Investment Bank Act 2015

The Singapore Parliament passed the Asian Infrastructure Investment Bank Act 2015 on 17 August 2015, and the Act came into force on 22 August 2015. The Act is to implement the International Agreement for the establishment and operation of the Asian Infrastructure Investment Bank (“aiib”), to enable Singapore to become a member of the Bank and for connected purposes. The aiib is an initiative by the Chinese government to set up a multilateral development bank that aims to support the building of infrastructure in the Asia-Pacific region. Singapore is one of the first few countries to be involved in the establishment of the aiib and will subscribe US$250 million to the bank. Other countries that have signed the aiib Articles of Agreement include other asean member States and major European economies such as France, Germany and the uk.

Regional Organizations – Asean Economic Community

As a Member State of the Association of Southeast Asian Nations, Singapore became part of the asean Economic Community (“aec”) that was established on 31 December 2015. In a press statement issued on the formation of the Community, Singapore’s Minister for Foreign Affairs noted that the aec was a significant milestone in asean’s history and was aimed at enhancing the region’s growth and developmental opportunities, as well as to expand the operations of businesses beyond national boundaries to the wider region to serve asean’s growing middle class. The aec is one of asean’s three Community Pillars, the other two being the asean Political-Security Community (apsc) and the asean Socio-Cultural Community (ascc).

State Practice of Asian Countries in International LawSri Lanka

Danushka S. Medawatte*

Freedom to seek, receive, and impart information

19th Amendment – 1978 Constitution of the Democratic Socialist Republic of Sri Lanka

The 19th Amendment to the 1978 Constitution of the Democratic Socialist Republic of Sri Lanka was adopted on 15 May 2015. By virtue of Article 14A (1) of the Amendment, right of access to information was incorporated into the Fundamental Rights Chapter of the Constitution. The enforceability of this right is dependent on whether the right of access to information is provided for by law, and whether such access paves way for the protection of a citizen’s right.

Providing the right to access information is consistent with the obligations that Sri Lanka has undertaken under Article 19(2) of the International Convention on Civil and Political Rights (iccpr) which requires State parties to grant inter alia the freedom to seek, receive and impart information as an integral component of the freedom of expression.

Commitment to the Purposes and Principles of the Charter of the United Nations and International Law

President’s Duty to Act in Accordance with International Law

Section 5 of the 19th Amendment reiterates that the President should exercise his powers and functions inter alia in accordance with the international law. This obligations is stated in Article 33 (2) (h) of the Constitution and is a continuation of the constitutional guarantee that was embodied in Article 33(f) of the Constitution pre-19th Amendment. This is consistent with General Assembly Resolution 66/102 (2012) which reaffirmed the commitment of the members of the United Nations General Assembly to guarantee the protection of the rule of law at national and international levels.

United Nations Convention against Corruption and United Nations Convention against Transnational Organized Crime

Chapter xixa of the Constitution of Sri Lanka

Chapter xixa of the Constitution that was introduced by the 19th Amendment provides the legal framework for the establishment of a Commission to Investigate Allegations of Bribery or Corruption. Article 156A(c) of Chapter xixa states that the Parliamentary law establishing such a Commission shall provide for ‘measures to implement the United Nations Convention Against Corruption and any other international Convention relating to the prevention of corruption, to which Sri Lanka is a party’. Sri Lanka has ratified un Convention against Corruption and un Convention against Transnational Organized Crime

United Nations Convention against Transnational Organized Crime

Assistance to and Protection of Victims of Crime and Witnesses Act, No 4 of 2015

By virtue of Articles 24 and 25, the un Convention against Transnational Organized Crime requires State parties to provide assistance and protection to witnesses and victims of crime. The Assistance to and Protection of Victims of Crime and Witnesses Act No. 4 of 2015 was certified on 7 March 2015 to give effect to obligations undertaken under the aforementioned un Convention which was ratified by Sri Lanka on 22 September 2006.

The preamble to the Assistance to and Protection of Victims of Crime and Witnesses Act provides as follows:

An Act to provide for the setting out of rights and entitlements of victims of crime and witnesses and the protection and promotion of such rights and entitlements; to give effect to appropriate international norms, standards and best practices relating to the protection of victims of crime and witnesses; the establishment of the National Authority for the Protection of Victims of Crime and Witnesses; constitution of a Board of Management, the Victims of Crime and Witnesses Assistance and Protection Division of the Sri Lanka Police Department; payment of compensation to victims of crime; establishment of the Victims of Crime and Witnesses Assistance and Protection Fund and for matters connected therewith or incidental thereto. [emphasis added]

Arbitrary Deprivation of Life, Torture, Ill Treatment, Lack of Proper Investigation, Right to an Effective Remedy, Right to Liberty and Security of Person, Respect for the Inherent Dignity of the Human Person

Misilin Nona Guneththige and Piyawathie Guneththige (represented by the Asian Legal Resource Centre and Redress) v. Sri Lanka. Communication No. 2087/2011, Human Rights Committee, 113th Session, 16 March – 2 April 2015, CCPR/C/113/D/2087/2011, 7 May 2015.

The communication was submitted on behalf of Thissera Sunil Hemachandra who was the son of Misilin Nona and nephew of Piyawathie. The authors of the communication alleged that the following provisions of the International Covenant on Civil and Political Rights were violated by the State party: Articles 2(3),1 6,2 7,3 9(1),4 9(2),5 9(4),6 and 10 (1).7

The facts of the case indicate that the victim – Sunil had won a lottery worth over three million Sri Lankan rupees. A lottery sales agent and a policeman had visited Sunil’s house on the following day and had attempted to compel him to visit the police. On 21July 2003, Sunil had been requested to visit Moragahahena Police Station even though no reasons necessitating such a visit had been explained to him. Sunil had then been compelled to pay Rs.25,000 to cover the expenses of a procession of a temple. Although Sunil was initially released upon agreeing to make the payment, he was taken into police custody on the following day, i.e., 22 of July 2003.

Sunil had been beaten in police custody and been deprived of medical attention claiming that he was merely suffering from an epileptic fit. After this was brought to the attention of the police by the second author, Sunil had been admitted to hospital. Two police officers had recorded a statement from Sunil while he was in hospital. During this time, Sunil had only been able to utter his name and place his thumb print on the alleged ‘statement’ that was recorded by the police. His thumb print had so been obtained even though he was capable of placing his signature.

On 24 July, Sunil had been transferred to the National Hospital in Colombo where he was subject to brain surgery and was treated in the Intensive Care Unit. Sunil succumbed to the injuries on the 26July 2003. There were inconsistencies in the Judicial Medical Officer’s Report. The authors of the communication filed a petition to move the Supreme Court (sc) concerning the violated fundamental rights in September 2003. Simultaneously, the possibility of raising criminal charges against alleged perpetrators were considered by the Attorney General (ag), and on 29April 2004, the ag decided that no charges can be filed as there was no evidence of an assault against the victim. This decision was made even though the Magistrate had noted that the circumstances surrounding the victim’s death were suspicious.

The authors had also filed a petition at the Human Rights Commission of Sri Lanka (hrcsl) soon after the death of the victim. This remained unanswered until 21August 2008 and the authors were later informed that the proceedings were suspended. On the 6tAugust 2010, the sc dismissed the fundamental rights application on the ground that Sunil’s fall was due to a fit arising from alcohol withdrawal. The sc abstained from assessing whether the victim was subject to assault in custody. The authors therefore claim that domestic remedies have been exhausted and that the State party is liable for the violation of Articles 2(3), 6(1), 7, 9 (1, 2, and 4), and 10.

The Human Rights Committee requested information from the State party in four different instances regarding the admissibility of the case. However, the committee noted with regret that the State has not cooperated and the requested information was not received. The Committee noted that Sri Lanka is obliged by virtue of Article 4(2) of the Optional Protocol to the iccpr to examine in good faith all allegations levelled against the State party, and to make available to the Committee all information at the disposal of the State party. The Committee decided to give due weight to the allegations of the authors to the extent substantiated in the absence of a reply from the State party. The Committee declared the communication admissible due to domestic remedies being unduly prolonged and due to the absence of a response from the State party.

The Committee noted that the inherent right to life as stipulated in Article 6 of the iccpr also means that the State party bears the responsibility to care for the life of arrested and detained individuals and that ‘a death in any type of custody should be regarded prima facie as a summary or arbitrary execution’. The Committee further stated that ‘consequently, there should be a thorough, prompt, and impartial investigation to confirm or rebut [the above] presumption especially when complaints by relatives or other reliable reports suggest unnatural death.’ The very officers of the Moragahahena Police Station where the victim was detained being involved in the investigation, the Attorney General’s refusal to conduct a criminal prosecution and the seven year duration taken by the Supreme Court of Sri Lanka to make a ruling on the fundamental rights petition filed by the authors of the communication were regarded by the Committee as factors invoking State responsibility concerning its failure to protect the victim’s life. The Committee considered this as resulting in the breach of Article 6(1) read alone and in conjunction with Article 2(3) of the iccpr. The Committee further found a violation of Article 7 by the State as there was evidence of severe beatings on the head and abdomen of the victim and because the authorities failed to provide timely and effective medical assistance to the victim. The Committee further concluded that the arrest of the victim without informing of reasons for arrest deprived the victim of any possibility of seeking legal assistance and that in the absence of any rebuttal by the State party, there is sufficient evidence to conclude that the victim’s rights under Article 9 have been violated by the State.

The Committee noted that despite the lapsing of nearly 12 years since the victim’s death, the authors are still unaware of the circumstances surrounding the death due to the State party’s inaction. The continued stress and mental anguish caused upon the authors of the communication by such inaction was considered as amounting to a breach of Article 2(3) read in conjunction with Article 7.

The Committee noted in conclusion that the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the provisions of the iccpr and that the State has undertaken the obligation of providing an effective and enforceable remedy when a violation has been established. The State party was requested to provide information to the Committee within 180 days and to widely disseminate the views concerning this violation after having them translated into the official languages of Sri Lanka.

Promoting Reconciliation, Accountability and Human Rights In Sri Lanka

Human Rights Council Resolution 30/L.29 on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, A/HRC/30/L.29, 29 September 2015

The United Nations Human Rights Council adopted Resolution 30/1 on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka on 29 September 2015. The Human Rights Council welcomed the steps taken by the Government of Sri Lanka since 2015 to advance respect for human rights, and to strengthen good governance and democratic institutions. The Council further welcomed the efforts of the government to investigate into allegations of bribery, corruption, fraud and abuse of power. Clause 3 of the Resolution states as follows:

Supports the commitment of the Government of Sri Lanka to strengthen and safeguard the credibility of the process of truth-seeking, justice, reparations and guarantees of non-recurrence by engaging in broad national with the inclusion of victims and civil society, including non-governmental organizations, from all affected communities, which will inform the design and implementation of these processes, drawing on international expertise, assistance and best practices.

Convention on the Elimination of All Forms of Discrimination against Women

Sri Lankan State Party Report to the cedaw Committee, Eighth Periodic Report of State Parties Due in 2015 (received on 30 April 2015), CEDAW/C/LKA/8, 29 May 2015

In this report, the absence of a Women’s Right Bill and minimal female representation at elected political bodies was cited. However, the State party noted that the number of women in Sri Lanka Administrative Services has increased. Since the approval of the budget in January 2015, the State has implemented a system of paying Rs. 20,000 to pregnant women for purchase of nutritious food recommended by doctors. This was targeted at avoiding anemia, low birth weight and malnutrition affecting both mothers and babies.8 This is consistent with the obligations that Sri Lanka has undertaken under Article 12(2) of cedaw.

Section 13K of the Assistance to and Protection of Victims of Crime and Witnesses Act No 4 of 2015 seeks to lay a framework to take measures to sensitize police officers, Prison Department, government medical officers, public officers associated with probation and social services and other officers on matters concerning inter alia gender.9 This is in line with Article 2(b) of cedaw.

Paragraph 94 of the State Report records that the State has adopted measures to abolish the concept of “head of household” in administrative practice and recognize joint or co-ownership of land. This is consistent with the obligations that Sri Lanka has undertaken under Article 16(1)(h) of cedaw.

State Practice of Asian Countries in International LawThailand

Kitti Jayangakula*

Human Rights

Children’s Rights – the Protection of Children Born through Assisted Reproductive Technologies – Surrogacy Law

On 19 February 2015, the National Legislative Assembly of Thailand enacted the Protection for Children Born through Assisted Reproductive Technologies Act (art Act), which is a significantly protect children born through Assisted Reproductive Technologies (art) and sets the legal procedures that spouses must follow in order to have such children.

The purposes of the art Act are: to specify the parent’s legal status; to control and specify the rights and duties of related parties during and after surrogacy; to control and set boundaries on the proper use of enhanced technology, specifically for achieving pregnancy in procedures; and to prohibit surrogacy involving a business or profit-making enterprise.

Section 3 of the art Act defines “Assisted Reproductive Technologies (art)” as “any medical procedure which allows extracting sperm and egg from a human body and achieving pregnancy without sexual intercourse, including artificial insemination” and defines surrogacy as “pregnancy by art.”

However, art applicants must be lawful spouses, and the wife cannot be pregnant as stipulated in Section 21 of the art Act that

… [p]ermission for the act of surrogacy shall meet the following criteria:

  1. the legally married husband and wife who apply for surrogacy because the wife is not able to get pregnant shall be both Thai nationals. In case either a husband or a wife is not a Thai national, the couple must have been married for at least three years prior to the application.

  2. The surrogate mother shall not be either the parent or the descendant of any of the applicants under the Clause (1);

  3. The surrogate mother shall be a blood relative of one of the applicants under the Clause (1); in case the applicants have no blood relatives, the surrogate mother shall be chosen in accordance with the rules, methods and terms prescribed by the regulations issued by the Minister of Public Health as advised by the Committee;

  4. The surrogate mother shall have had a pregnancy before the surrogacy; in case the surrogate mother is legally married or stays in a civil union she shall obtain the consent of her legitimate spouse or partner.

Regarding this, same-sex couples cannot seek surrogacy, because Thai law has not yet provided for legally sanctioned same-sex marriage.

According to the art Act, the applicants and the surrogate mother must have a written agreement before the pregnancy occurs, indicating that the applicants will be the legal parents of the child (Section 3). The Act also clearly states that the applicants will be the legal parents of the surrogate child and cannot deny the parentage of a child born through art (Sections 2910 and 3311), and it will be applied retroactively to those children of surrogacy born before the Act’s entry into force, through a process of the parents’ seeking court approval (Section 5612).

The art Act provides that the surrogacy shall not be performed for commercial purposes (Section 24) then, if anyone is involved in surrogacy for profit, he/she will be sentenced upon conviction to imprisonment for up to ten years or a fine of up to THB 200,000 (Section 48). To act as an intermediary or an agent as well as to claim, receive or agree to receive assets or other advantage as the reward for organizing or advising on the matter of surrogacy is also prohibited under the art Act (Section 27) then if anyone acts as an agent by requesting or accepting money, property, or other benefits in return for managing or giving advice about surrogacy, he/she will be sentenced upon conviction to imprisonment for up to five years and/or a fine of up to THB 100,000 (Section 49).

Children’s rights – Child pornography – Implementation of Optional Protocol to the Convention on the Right of the Child on the Sale of Children, Child Prostitution and Child Pornography

On 14 May 2015, the National Legislative Assembly of Thailand voted unanimously to amend the Penal Code of Thailand to criminalise child pornography. On 8 September 2015, the Amendments to the Penal Code Act (24th edition) b.e. 2558 (2015) were published in the Royal Thai Government Gazette and came into effect 90 days after its publication (7 December 2015). The Amendments define the term ‘child pornography’ in complying with international agreement and criminalize criminal acts concerning child pornography. As a party to the Convention on Rights of the Child (crc) and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, the Amendments fulfill the obligations under such international agreements.

According the Act, the meaning of child pornography is added to Section 1(17) of the Penal Code as defined the Act as “being a material or thing showing or displaying any sexual activities of a child or with a child who is under 18 year olds by picture or text or by any means whatsoever, any document, painting, print, printed matter, picture, poster, symbol, photograph, cinematograph film, magnetic sound-recording tape, magnetic picture-recording tape or any other similar things, including any aforementioned subject or thing which is recorded in computers or electronic devices which can be shown or displayed. ”

The Amendments have prescribed the penalty regarding “Child Pornography”, as separate from the current pornography penalty specified in the Penal Code of Thailand. Having any child pornography for sexual benefits to oneself or other persons, shall be subject to an imprisonment not exceeding 5 years or a fine not exceeding thb 100,000, or both. (Section 287/1, para. 1)

If the person who committed the above activity disseminated such child pornography to other persons, that person shall be subject to a term of imprisonment not exceeding 7 years or a fine not exceeding thb 140,000, or both (Section 287/1, para. 2); and Section 287/2 provides:

Whoever:

For the purpose of trade or by trade, for public distribution or exhibition, makes, produces, possesses, brings or causes to be brought into Thailand, sends or causes to be sent out of Thailand, takes away or causes to be taken away, or circulates by any means whatever, any Child Pornography; or

Carries on trade, or takes part or participates in the trade concerning any Child Pornography, or distributes or exhibits to the public, or hires out such Child Pornography; or

Assists in the circulation or trading of any Child Pornography, propagates or spreads the news by any means whatsoever that there is a person committing the acts prescribed above, or propagates or spreads the news that the Child Pornography may be obtained from any person or by any means,

Such person shall be subject to an imprisonment from 3 to 10 years with a fine from thb 60,000 to thb 200,000.
Human Rights and Labor Rights – Human Trafficking and Forced Labor in the Fisheries Sector – Regularization and Protection of Migrant Workers

2015 marked a major turning point for Thai fisheries. The Thai government embarked on a comprehensive fisheries reform, guided by Food and Agriculture Organization (fao) and other relevant international standards, to tackle deep-seated problems in the fisheries sector. The reform aims to revamp fisheries management and governance, with a view to rooting out illegal, unreported and unregulated (iuu) fishing as well as human trafficking and forced labor in the fisheries sector. The end goal is to ensure sustainable and responsible practices in all aspects of Thailand’s fisheries sector.

As the first steps of the reform, Thailand has overhauled the legal and policy frameworks governing the fisheries sector, grounded in international principles and standards relating to sustainable and responsible fisheries. A new fisheries law, the Royal Ordinance on Fisheries b.e. 2558 (2015), was enacted and entered into force on 14 November 2015. The law significantly empowers relevant authorities to combat iuu fishing and unlawful labor practices in the fishing and seafood industries (Section 4).

The Royal Ordinance introduces proportionate and deterrent penalties, with a maximum fine of 30 million baht as stipulated in Section 123 that:

Any person violating Section 10 shall be subject to a fine of between ten thousand baht and one hundred thousand baht, or to a fine of three times the value of the aquatic animals obtained through the fishing operation. In whichever case, the higher fine shall apply.

Any offender pursuant to paragraph one using a vessel of a size from ten gross tonnage up to less than twenty gross tonnage shall be subject to a fine of between one hundred thousand baht and two hundred thousand baht, or to a fine of five times the value of the aquatic animals obtained from the fishing operation. In whichever case, the higher fine shall apply.

Any offender pursuant to paragraph one using a vessel of a size from twenty gross tonnage up to less than sixty gross tonnage shall be subject to a fine of between two hundred thousand baht and six hundred thousand baht, or to a fine of five times the value of the aquatic animals obtained from the fishing operation. In whichever case, the higher fine shall apply.

Any offender pursuant to paragraph one using a vessel of a size from sixty gross tonnage up to less than one hundred and fifty gross tonnage shall be subject to a fine of between six hundred thousand baht and five million baht, or to a fine of five times the value of the aquatic animals obtained from the fishing operation. In whichever case, the higher fine shall apply.

Any offender pursuant to paragraph one using a vessel of a size from one hundred and fifty gross tonnage onwards shall be subject to a fine of between five million baht and thirty million baht, or to a fine of five times the value of the aquatic animals obtained from the fishing operation. In whichever case, the higher fine shall apply.

The infringement could lead to serious administrative sanctions, including the revocation of the fishing license and vessel registrar, as well as the suspension or closure of seafood processing factories with illegal migrant workers.

International Trade Law

International Air Carriage – 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air

On 13 February 2015, the new law on air carriage passed by the National Legislative Assembly of Thailand was announced in the Royal Thai Government Gazette. It came into effect 90 days after its publication on 14 May 2015. The law, called the International Air Carriage Act b.e. 2558 (Air Carriage Act), covers air carrier liability for accidents, delays, and cargo losses. The Air Carriage Act therefore provides a welcome degree of certainty for air carriers and passengers alike. The Act is also generally consistent with the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, the international airline liability treaty, of which Thailand is not a member. The Air Carriage Act brings Thailand closer to international standards, and may signal a new willingness by the Thai government to ratify the Montreal Convention.

The Air Carriage Act provides liability for bodily injury or death of the passengers when the accident occurred either on board the aircraft or during embarkation or disembarkation (Section 10). The liability level is determined, in part, by a plaintiff’s contributory negligence (Section 14). The Air Carriage Act sets statutory limitations to liability, including liability for bodily injury or death.

For liability for checked baggage and delays, the Act also provides liability for damage arising from the destruction or loss of checked baggage. Liability attaches only if the event that caused the destruction occurred on board the aircraft or if the carrier controls the checked baggage. The Air Carriage Act does not define these terms, so they will be interpreted differently by the national courts. The air carrier is automatically liable for damage to or loss of unchecked baggage when the damage is due to the carrier’s agents (Section 11). An air carrier is also liable for damage caused by flight delays. To escape liability, the carrier must prove that it took measures to avoid the damage (Section 12).

The Air Carriage Act contains provisions governing liability for air cargo. A carrier is liable for damages caused by the loss or damage to cargo when the event causing the damage took place during the carriage by air. The carrier is also liable for damage to cargo that resulted from delays, unless the carrier can prove that it “took all measures” to avoid the damage.

The Air Carriage Act applies equally to domestic carriage and international carriage. All cases brought in relation to domestic carriage by air must be brought before the Central Intellectual Property and International Trade Court in Bangkok.

Section 58 provides that “Cases on domestic carriage by air shall fall within the jurisdiction of the Intellectual Property and International Trade Court.”

But strangely, the Air Carriage Act does not mention jurisdiction for cases involving international carriage. This deviates from the Montreal Convention, which has specific provisions on jurisdiction. Moreover, the Air Carriage Act makes no mention of handling disputes by arbitration—another difference with the Montreal Convention. Issues involving jurisdiction over cases related to international carriage will therefore be decided by the individual court.

Judicial Decision

The Right to Refuse Treatment of Patient – the Right to Die – Patient’s Living Will – Legitimacy of Ministerial Regulation on Living Wills

Thapanawong Tang-uraiwan, Oraphan Methadilokkul, and Cherdchoo Ariyasriwattana v. Prime Minister pm Yingluck Shinawatra and Public Health Minister Wittaya Buranasiri [Supreme Administrative Court, Black Case No. For.147/2554, Red Case No. For.11/2558, 18 June 2015]

Facts

Three doctors submitted a petition before the Supreme Administrative Court claimed to abrogate Section 12, Paragraph 2 of the National Health Act b.e. 2550 (2007) (nha). They tried to get this regulation nullified, as they believe it goes against the Medical Practice Act and is unethical because the regulation requires doctors to stop treating patients, when doctors have been taught to never stop saving a life.

Section 12 of the nha, which states that

A person shall have the right to make a living will in writing to refuse the public health service which is provided merely to prolong his/her terminal stage of life or to make a living will to refuse the service as to cease the severe suffering from illness.

The living will under paragraph one shall be carried out in accordance with the rules and procedure prescribed in the Ministerial Regulation.

An act done by public health personnel in compliance with the living will under paragraph one shall not be held an offence and shall not be liable to any responsibility whatsoever.

The provision recognizes patients’ living wills, in which they can spell out their preferences for medical care at a time when they are unable to make decisions for themselves. In their living wills, they can state what kind of treatments they would or would not want to receive when they reach a terminal stage while Ministerial Regulation on Rule and Procedure for Implementing a Living Will to Refuse Public Health Services that Prolong Dying in the Terminal Stage of Illness or to End Suffering from Illness b.e. 2557 (2010), which allows public health professionals to accord the patient’s living wills without having to worry about legal consequences.

The plaintiffs claimed that doctors have been taught and practiced to save patient’s life. The definitions and meanings of “public health services that prolong dying in the terminal stage of illness or to end suffering from illness,” “terminal stage of life,” and “suffering from illness”, stipulated in the Ministerial Regulation, have never been taught in medical school. In addition, the plaintiffs as well as others doctors have been acknowledged and taught concerning “mercy killing” or “euthanasia” which means letting the patient dies by withholding or withdrawing all medical measures. Regarding this, to comply with his/her living will, pursuant to Section 12 of the nha, would be the omission from professional healthcare standard and the doctors have to responsible for those consequences. The plaintiffs also claimed that patient’s self determination to live or to die is his/her freedom, not right and the right to die is not recognized under the Constitution of the Kingdom of Thailand b.e. 2550 (2007) (the 2007 Constitution).

Judgment

The Supreme Administration Court (the Court) stated that the right to commit a living will is the right and freedom over his/her life and body, which is recognized by the 2007 Constitution. The draft of Ministerial Regulation has already taken into account the opinions of professional bodies and various organizations under the process of public hearing stipulated by the 2007 Constitution. A person has right over his/her life and body; doctors have to respect the decision of the patient through his/her living will without legal consequences, which lead to criminal liability for his/her omission under the Penal Code.

The Court affirmed that rules and procedure under the Ministerial Regulation is not the rejection of taking professional healthcare, or using of medicine or medical equipment to end a life of patient, but it remains the taking of palliative care for the patient to die naturally without suffering complying with his/her living will to refuse the service as to cease the severe suffering from illness. The Court dismissed a petition of the plaintiffs, in effect, gives patients “the right to die.”

State Practice of Asian Countries in International LawVietnam

Tran Viet Dung*

Economic – Trade

Ratification of the Protocol Amending the Marrakesh Agreement establishing the World Trade Organization (wto)

On 26 November 2015, the National Assembly of Vietnam ratified the Protocol Amending the Marrakesh Agreement Establishing the World Trade Organization (“Protocol”).13

The Protocol was adopted by the General Council of the wto on 27 November 2014 to insert the new Agreement on Trade Facilitation (“tfa”) and the commitments of developing countries that are incorporated as an Annex to the Marrakesh Agreement Establishing the World Trade Organization. The tfa was the first newly established agreement adopted by all Members since the foundation of the wto in 1995.

The purpose of the amendments to tfa is to further simplify and modernize procedures for the movement, release and clearance of goods and to enhance transparency of trade related procedures. It aims to help smaller businesses exploit export opportunities and to facilitate developing countries’ participation in international trade. These amendments are also expected to help the developing countries to reduce the bureaucracy, promote trade and investment by reducing the trade transaction costs as well as to prevent illegal imports and to improve the collection of customs duties.

By ratifying the Protocol, Vietnam has committed to further improve the foreign trade environment. It is expected that in coming years the Vietnamese government will amend and revise the trade rules and regulations, such as unclear trade rules, procedures and fees; unjust discretion of officials; unreasonable requests for documents for import; and the long period of time from the arrival of goods to the permission of import etc., and thus support trade and other economic activities of companies from wto members, which not only export finished goods, but also develop supply chains on a global scale.

International Economic Law

International Economic Cooperation – Free Trade Agreements

In 2015, the Government of the Socialist Republic of Vietnam completed negotiations and signed a number of important free trade agreements, including with the European Union – Vietnam Free Trade Agreement, Korea – Vietnam Free Trade Agreement, Vietnam – Eurasia Economic Union Free Trade Area. The initiative of Vietnam towards the conclusion of free trade agreements in 2015 has brought the country to the position of one the most active supporters of regional economic integration in Southeast Asia alongside Singapore.

The Free Trade Agreement between the European Union and the Socialist Republic of Vietnam

On 4 December 2015, the Free Trade Agreement between European Union and the Socialist Republic of Vietnam (euvfta) was officially signed by the two parties to establish the free trade area. The fta, for which negotiations started in October 2012, is one the most ambitious and comprehensive fta that the eu has ever concluded with a developing country, the second in the asean region after Singapore, and a further building block towards the eu’s ultimate objective of an ambitious and comprehensive region-to-region eu-asean fta. The euvfta shall eliminate nearly all tariffs (over 99%), except for a small number of tariff lines for which the eu and Vietnam agreed on partial liberalization through zero-duty Tariff Rate Quotas (trqs):14 Vietnam will liberalize 65% of import duties on eu exports to Vietnam at entry into force, with the remainder of duties being gradually eliminated over a 10-year period; and eu duties will be eliminated over a 7-year period.

Pursuant to the euvfta, almost all eu exports of machinery and appliances will be fully liberalized at entry into force and the rest after 5 years. Motorcycles (with engines larger than 150 cc) will be liberalized after 7 years and cars after 10 years, except those with large engines (>3000cc for petrol, > 2500cc for diesel) which will be liberalized one year earlier. Roughly half of eu pharmaceuticals exports will be duty free at entry into force and the rest after 7 years. Close to 70% of eu chemicals export will be duty free at entry into force and the rest after 3, 5 and 7 years. Wines and spirits will be liberalized after 7 years. Frozen pork meat will be duty free after 7 years, beef after 3 years, dairy products after a maximum of 5 years and food preparations after a maximum of 7 years. Chicken will be fully liberalized after 10 years.15

The eu will eliminate duties for textile and footwear products of Vietnam within 5 to 716 years for the more sensitive items and 3 years and entry into force for less sensitive goods. With regard to garment products, the euvfta applies very strict rules of origin, which require the products to use of fabrics produced in Vietnam, with the only exception being of fabrics produced in South Korea, another fta partner of the eu. Some sensitive agricultural products will not be fully liberalized, but the eu has offered access to Vietnamese exports via tariff rate quotas (trqs) for rice, sweet corn, garlic, mushrooms, sugar and high-sugar-containing products, manioc starch, surimi and canned tuna.

The eu and Vietnam have also agreed to strengthen the disciplines of the wto Technical Barriers to Trade (tbt) agreement. In particular, Vietnam has committed to increasing the use of international standards in drafting its regulations. The agreement also contains a chapter addressing Sanitary and Phytosanitary measures (sps), specifically aimed at facilitating trade in plant and animal products, where the parties agreed on some important principles such as regionalization and the recognition of the eu as a single entity. These provisions will facilitate access for eu companies producing a large variety of products, including electrical appliances, it, and food and drinks to the Vietnamese market.

The agreement will also contain a specific annex with far-reaching provisions to address non-tariff barriers in the automotive sector, including, five years after its entry into force, the recognition of the eu vehicle whole certificate of conformity.

Vietnam and eu also established a list mutually accepted Geographical Indications (gis). Accordingly, farmers and small businesses of the two parties producing food with traditional methods will benefit from the recognition and protection on this gi regime. As result of the euvfta the use of 169 European gis such as Champagne, Feta, Parmigiano Reggiano, Rioja, Roquefort or Scotch Whisky will be reserved in Vietnam for products imported from the European regions in which they originate. Meanwhile, 39 Vietnamese gis, too, will be recognized and protected as such in the eu, providing the adequate framework for further promoting imports of quality products such as Phú Quốc fish sauce, Mộc Châu tea or Buôn Ma Thuột coffee. The agreement will allow new gis to be added in the future.

The euvfta also deals with the issue of treatment of the State-Owned Enterprises (soes) The Agreement contains rules regarding state-owned enterprises (soes). This achievement is significant as soes have traditionally been a backbone of Vietnamese economy and create around 40% of gdp. Core rules related to soes include:

  • Non-discrimination and commercial considerations: rules applicable to soes will put soes and private enterprises on an equal footing when engaged in commercial transactions (sales and purchases with a profit making objective).

  • Transparency: Parties can request information on a case-by-case basis on corporate structures and finances of the companies.

  • Corporate governance: regulatory functions will treat soes and private enterprises in the same way and that all laws and regulations will be applied in a non-discriminatory manner.

Public services are fully safeguarded under the agreement and nothing in the soe chapter will affect the Parties’ ability to continue providing services of general economic interest.

In the area of trade in services, Vietnam has committed to substantially improve market access for eu service suppliers to a broad range of services sectors, including business services; environmental services, postal and courier services, financial services, insurance, maritime transport, higher education services, distribution services.

The result of this chapter goes largely beyond both wto commitments and any other fta that Vietnam has concluded, thereby giving eu companies the best possible access to the Vietnamese service market.

With regards to investment promotion, Vietnam has committed to open up to investments in manufacturing in a number of key sectors:

  • food products and beverages

  • fertilizers and nitrogen composites

  • tires and tubes

  • gloves and plastic products

  • ceramics

  • construction materials

On investment protection, the fta has set the key provisions on protection such as Most Favorite Nation treatment, National Treatment, “minimum standard of treatment” for investments, rules on expropriation (the expropriation shall only be applied for a public purpose, in accordance with due process of law, and subject to prompt, adequate and fully realizable and transferable compensation).

The fta also includes a chapter on cooperation, as a means to contribute to the efficient implementation of the economic tide of the parties. Boosting sustainable development in all its dimensions is a key objective for such cooperation, for which areas of particular importance include labor and environmental matters, trade facilitation, and smes. This chapter is placed under the existing eu-Vietnam Framework Cooperation Agreement.

The Free Trade Agreement between the Socialist Republic of Vietnam and the Eurasian Economic Union

On 29 May 2015, after two years of negotiation, the Free Trade Agreement between the Socialist Republic of Vietnam and the Eurasian Economic Union (eaeu – including the Russian Federation, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Armenia, and the Kyrgyz Republic) was signed. The eaeu-Vietnam fta is now under the domestic ratification process of the Parties (expected to be completed before October 2016). This is the first free trade agreement of the eaeu with external partner and is expected to create preferences for Vietnamese enterprises when exporting to eaeu countries.

The eaeu-Vietnam fta regulates the trade in goods, trade in service, investment, rules on economic cooperation and other related issues of mutual interest to be considered in flexible principle, for development goals, benefit – demand balancing, and in conformity with common practices and wto commitments.

Under the framework of the eaeu-Vietnam fta, parties agreed to grant each other the market access for 90% in tariff-line, equivalent to over 90% of bilateral trade coverage.17 Accordingly, the eaeu shall apply duties of 0% on all sea-products originating from Vietnam at the time of coming into force of the fta. Together with tariff reduction and elimination, two parties will implement Sanitary and Physo Sanitary (sps) mechanism which includes mutual recognition on sps measures and management system in the relevant sector, verification on satisfying the regional requirements, auditing report and information of the international organizations; promoting cooperation in implementing trade facilitation, technical support and establishment of the effective consultation mechanism. Meanwhile, Vietnam also set a roadmap to open market for the products of husbandry, number of industrial products including machineries, equipment, vehicles …. originating from the eaeu. Such items are not competitive to similar products of Vietnam and help to diversify the domestic market. For agricultural products such as milk, milk-based products and cereal products in category of priority offered with free access at agreement enforcement mainly for local demand and not for export promotion.

It should be noted that the Chapter on trade in services, investment and movement of natural persons of the EAEU-Vietnam fta is only applied only to Vietnam and Russia.18 The chapter has set out the rules on liberalization and market access of a number of service sectors. The rules on investment provides the basic investment protections rules which could be found in other investment-related agreements, including national treatment; most-favored-nation treatment; “minimum standard of treatment” for investments in accordance with customary international law principles; prohibition of expropriation that is not for public purpose, without due process, or without compensation; prohibition on “performance requirements” such as local content or technology localization requirements; free transfer of profit; and freedom to appoint senior management positions of any nationality.

Free Trade Agreement between Republic of Korea and the Socialist Republic of Vietnam

On 5 May 2015, the Government of the Socialist Republic of Vietnam and the Government of Republic of Korea signed the Korea-Vietnam Free Trade Agreement (kvnfta). The agreement has become affective as of 20 December 2016 and is expected to further contribute to boosting trade and investment cooperation between the two countries. The bilateral trade between Vietnam and Korea has increased 57 folds over the past decades, from 500,000 million usd in 1992 to 28.8 billion usd in 2014.19 In 2014, the Korea is the 3rd largest trading partner of Vietnam, after China and the us, while Vietnam is the Korea’s 6th largest export market.

The kvnfta is a comprehensive trade agreement with high level of commitment and benefit balance. The agreement covers Trade in goods (tariff elimination and reduction), trade in service (annexes on telecommunication, finance.), Investment, Intellectual Property, Sanitary and Phyto-sanitary (sps), Rule of Origin, Custom Facilitation, Trade Safeguard, Technical Barriers to Trade (tbt), E-Commerce, Competition, Institutional, Legislative and Horizontal Issues, Economic Cooperation.

Tariff reduction and elimination by Korea are expected to offer new opportunity for export of Vietnam’s important export-categories such as agro-products, pivotal aqua-products of shrimp, fish, tropical fruits, industrial products of garment, mechanical instruments. Korea also commits to grant market access in service and investment and agreed to promote economic cooperation, technical support in diversified sectors.

Korea, for the first time, opens its market for some agricultural products of high sensitivity such as garlic, ginger, honey, shrimp, offering considerable opportunities for Vietnam producers.

Vietnams, on the other hand, commits to offer concession for Korea in categories of industrial products such as garment materials and accessories, plastic materials, electronic accessories, trucks and cars (having capacity of 2500cc) and car-parts, electrical home appliances, steel products, and cables.

All other commitments on service, investment, intellectual property, competition, trade safeguard, dispute settlement, economic cooperation, sanitary and phyto-sanitary measures, technical barriers to trade ensure benefit-balance and in conformity with domestic legal regulation, having no negative impacts on other ongoing fta negotiations.

With commitments on service, investment, transparent policy environment, fair competition in accordance to the international regulations, the kvnfta is expected to attract investment from Korea, especially in high-technology, manufacturing and processing industries, and, at the same time, to promote economies linking, to consolidate and tighten Vietnam – Korea strategic cooperation relation.

Criminal Law

Criminal Law – Law Enforcement – Mutual Legal Assistance in Criminal Matters – Execution

Treaty between the Socialist Republic of Vietnam and the Kingdom of Spain Concerning Mutual Legal Assistance in Criminal Matters

On 18 September 2015, the Prosecutor General of the Supreme People’s Procuracy Nguyen Hoa Binh and Spanish Minister of Justice Rafael Catala Polo signed the Treaty on mutual legal assistance in criminal matters between Vietnam and Spain (mlat). The agreement is intended to better mutual legal assistance activities relating to criminal issues between the two countries’ relevant agencies.

Vietnam and Spain shall, in accordance with this Agreement and their respective laws, grant to each other assistance in investigations or proceedings in respect of criminal matters, especially the transnational crimes such offences against a law relating to taxation, customs duties, foreign exchange control and other revenue matters.20

Legal assistance granted under this Agreement shall include:

  • locating and identifying persons

  • providing documents, records, and evidence;

  • taking evidence and obtaining statements of persons (including the execution of letters rogatory);

  • executing requests for search and seizure;

  • locating, restraining and forfeiting the proceeds and/or instruments of crime;

  • service of documents;

  • seeking the consent of persons to be available to give evidence or to assist in investigations in the Requesting Party, and where such persons are in custody, arranging for their temporary transfer to that Party;

  • collection of forensic material;

  • examining, freezing, seizuring and confiscating the proceeds of crime and the tools and means of crime;

  • exchanging of assets and evidence to presented before the court;

  • exchanging on information on crimes and criminals;

  • exchanging information on the criminal records;

  • other assistance consistent with the objects of this Treaty which is not inconsistent with the laws of the Requested Party.21

The Central Authority of the Requested Party may refuse assistance if: (a) the execution of the request would prejudice the sovereignty, security, order public or other essential interests of the Requested Party; (b) the request relates to a person who, if proceeded against in the Requested Party for the offence for which assistance is requested, would be entitled to be discharged on the grounds of a previous acquittal or conviction; (c) the request relates to an offence that is regarded by the Requested Party as a military offence; (d) the request relates to criminal proceedings which are politically motivated; or (e) the conduct to which the request relates fails to satisfy a requirement of the domestic law of the Requested Party requiring the establishment of dual criminality.

asean

Regional Integration – asean Community

Declaration on Establishment of asean Community

On 22 November 2015, the Southeast Asian leaders signed a Declaration to formally establish an asean Community in Kuala Lumpur to a milestone for regional integration. asean Community has come to existence since 31 December 2015.

The move is a landmark development for asean, which was originally formed in 1967 with just five members. It is a step towards realizing the idea of a three-pillared community to deepen regional integration first proposed in 2003 comprising an asean Political and Security Community; an asean Economic Community; and an asean Socio-Cultural Community.

Vietnam and other asean members intend to establish a rules-based Community of shared values and norms; a cohesive, peaceful, stable and resilient region with shared responsibility for comprehensive security including a dynamic and outward-looking region. The full development of asean Community is expected to bring about prosperity in the region and protects the interests and wellbeing of asean peoples.

International Economic Law

Import–Export – wto Dispute Settlement System – Anti-dumping Law and Practices

Agreement on settlement of disputes relating to United States—Anti-Dumping Measures on Certain Shrimp from Viet Nam

On the 18 July 2015, the United States and Vietnam signed an agreement to resolve the two wto disputes which brought by Vietnam to the wto, namely the United States – Anti-dumping Measures on Certain Shrimp from Viet Nam (DS404) and United States – Anti-dumping Measures on Certain Shrimp from Viet Nam (DS429). The agreement also provides a framework for the settlement of certain u.s. court litigation, as well as the resolution of certain outstanding duty claims covering various administrative reviews of the warm water shrimp antidumping duty order.

One of the central issues of the disputes was the us doc’s use of the “zeroing” methodology, in administrative reviews on the application of the anti-dumping measures, which Viet Nam argued was, “as such” and “as applied” in the fourth, fifth and sixth administrative reviews under the anti-dumping order, inconsistent with Article 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the gatt 1994. The us doc’s zeroing is a controversial method of calculating dumping margin, which involves ignoring certain data when calculating them. The mutual agreement has been reached after the Appellate Body of the wto found in the us – Anti-dumping Measures on Certain Shrimp from Viet Nam (DS429)22 that zeroing practices of the us doc were inconsistent with the wto anti-dumping law.

According to the agreement, doc must revisit prior administrative determinations to bring their decisions into compliance with the wto dispute findings. As a result, some Vietnamese exporters would no longer be subject to the antidumping duty order. In addition, certain domestic litigation has been resolved and duty deposits were refunded.

This case is also important to world trade system because it addresses the sometimes nebulous question of what exactly is fair in determining the proper prices of exports from non-market economies into market economies like the United States. Vietnam and China are the only two countries considered by the wto to be non-market economies.

University of Dhaka, Bangladesh.

Associate Professor, Tokyo University of Foreign Studies, Japan.

Kyung Hee University, Korea.

Research Associate, Centre for International Law, National University of Singapore.

University of the Philippines.

Assistant Professor, Faculty of Law, National University of Singapore.

Research Assistant, Centre for International Law, National University of Singapore.

Faculty of Law, University of Colombo.

Eastern Asia University, Thailand.

Associate Professor, Ho Chi Minh City University of Law, Vietnam.

Right to an effective remedy.

Inherent right to life.

Right to be free from torture, cruel, inhuman and degrading treatment or punishment.

Right to liberty and security of person, right to be free from arbitrary arrests or detention.

Right to be informed of the reasons for arrest and charges at the time of the arrest.

Entitlement to take proceedings before a court, in order that the court may decide without delay on the lawfulness of an arrested person’s detention and order such person’s release if the detention is not lawful.

Right to be treated with humanity and with respect for the inherent dignity of the human person during the period of deprivation of liberty.

Paragraph 24.

See also paragraph 28 and 29 of the State Report to cedaw.

Section 29 provides that “The child born with the usage of the sperm or the egg of a donor through the Assisted Reproductive Technologies (art) under this Act, regardless of whether the birth was given by the legitimate wife of the applicant or by the surrogate mother, is the legitimate child of this legally married couple. This is also true in case the wife or the husband die prior to the fact of birth. The man or the woman whose reproductive cells were used in the process of the embryo formation with the purpose of achieving pregnancy or the person who donate the embryo or the infant born from his/her sperm, egg or embryo have no rights and liabilities over the child, in accordance with the provisions of the Civil and Commercial Code concerning family and legacy matters.”

Section 33 provides that “It is prohibited to the husband, wife or both of the applicants for surrogacy to deny the parentage of the child born through surrogacy.”

Section 56 provides that “In case the child was born through surrogacy before the day on which the present Act comes into force regardless of whether the agreement was drawn up or not, the wife or the husband who applied for surrogacy or the Public Prosecutor have the right to plead the Court to issue an order which allows the child born before the day on which this Act comes into force to become a legitimate child of the couple who applied for surrogacy since the day of his/her birth. Therefore, regardless of whether the couple who applied for surrogacy was legally married or not, this order will not eliminate the rights of legally acting third parties since the day of the child’s birth and until the date of the issue of the relevant Court order.”

Resolution No. 108/2015/QH13 dated 26 November 2015 of the National Assembly, ratifying the Protocol Amending the Marrakesh Agreement Establishing the World Trade Organization.

Ministry of Industry and Trade, Foreign Trade Development, Annual Report, (2016).

Ibid.

On footwear, Vietnam agreed on a solution based on an ex-out definition, which enables liberalization of athletic/sports footwear either at entry into force or in three years; the rest of the footwear products will be liberalized in seven years.

Ministry of Industry and Trade, Foreign Trade Development, Annual Report, (2016).

Article 8.2, EAEU-Vietnam fta

Department of Foreign Affairs of Hanoi [http://www.dfa.gov.vn/foreign-central/Vietnam-RoK-free-trade-agreement-becomes-effective-3452.htm], last visited 10/10/2016.

Article 1, Spain-Vietnam mlat.

Article 3, Spain-Vietnam mlat.

Appellate Body Report, United States – Anti-dumping Measures on Certain Shrimp from Viet Nam,WT/DS429/AB/R.

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