The Co-evolution of Institutions and Technology

We propose a model of growth driven by the co-evolution of institutions and technology. To be consistent with Douglass North (1990, 1991, 1994), institutions are defined as a type of collective knowledge about a specific environment that can prescribe how to adapt general technology before the latter can be actually used. Institutions, then, are treated as a factor in the innovation process, and as such can be purposely accumulated. The simultaneous accumulation of institutions and technology are modeled as an evolutionary game whereby boundedly-rational .rms choose how much to allocate to ‘institutional spending’ vis-a-vis research expenditures, in anticipation of changes in monopoly pro.ts from technological innovation. Using Taylor and Jonker’s (1978) Replicator Dynamics to describe the evolution of such strategies, we are able to show how this transition process converges to the steady state model of Romer (1990)

Universalizing Core Human Rights in the "New" ASEAN: A Reassessment of Culture and Development Justifications Against the Global Rejection of Impunity

This paper responds to the defences of "culture" and "development" rights as justifications for exceptionalism in human rights obligations in Southeast Asia, particularly against the context of the passage of the Association of Southeast Asian Nations (ASEAN) Charter. Under the new ASEAN Charter, Member States have the general obligation to abide by the Organizational Principles of "adherence to the rule of law, good governance, the principles of democracy and constitutional government", as well as "respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice". More importantly, it is now the specific obligation of ASEAN Member States to "take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of the Charter and to comply with all obligations of membership", including the above-stated Organizational Principles. The paper shows the normative, conceptual, and empirical weaknesses of the "culture" and "development" justifications for creating exceptions to the observance and protection of core human rights norms. Assessing the right to culture as an exception to human rights observance, the paper asserts the ideological imprecision of the "right to culture" as an exception to human rights observance, noting that the porous definition of "culture" should not be equally valued in its assertion against core human rights norms which form part of general international law (e.g. jus cogens prohibitions, crimes against humanity, war crimes, egregious violations of human rights, obligations erga omnes) and which can be modified only by a subsequent norm of the same character. The cultural exception also suffers from teleological incoherence, since the protection of core human rights norms bears a greater immediacy and proximity to human dignity and personhood - a fundamental value that should be more conceptually valuable than the porous construct of culture. Turning to the "right to development" as an exception to human rights observance, the paper contends that there is empirical uncertainty and/or indeterminacy in the concept of "development" that undermines its legal-philosophical value as an exception to human rights observance. Moreover, contrary to the assertions of development exceptionalism to human rights observance, there is no linearity in the claim that human rights protection "impedes" development. Rather, as shown in recent economic analysis, there is a stronger claim for human rights protection as a necessary precondition for development. Further reinforcing these refutations of "culture" and "development" justifications for human rights exceptionalism is, however, the emergence of a customary international law norm rejecting impunity for serious violations of human rights (specifically, civil and political rights), which has gained recognition from the forty-year independent practice (primarily seen in treaty ratifications and implementation) of Southeast Asian states. Despite variances in the degree of ASEAN Member States' practices, there is at least consistent opinio juris that redress for serious human rights violations should not be met with non liquet in remedial processes, whether domestic or international. The passage of the ASEAN Charter therefore marks a convergence of ASEAN towards "universalizing" core human rights norms as now seen in its Organizational Principles and the new requirements of ASEAN membership obligations

China’s Maritime Law Enforcement Activities in the South China Sea

This article evaluates China’s public justifications for its unilateral maritime law enforcement activities in the South China Sea, including recent incidents affecting Indonesia, Vietnam, the Philippines, and Malaysia, against the binding international legal requirements of the United Nations Convention on the Law of the Sea (UNCLOS), the 2002 Declaration on the Conduct of Parties to the South China Sea, and the 2016 Permanent Court of Arbitration UNCLOS Annex VII arbitral award In the Matter of the South China Sea Arbitration. China’s unilateral maritime law enforcement activities in the South China Sea do not comply with UNCLOS and applicable international law. China cannot rely on historic rights or the exercise of sovereign control and jurisdiction under its nine-dash line map to conduct unilateral maritime law enforcement activities since the 2016 arbitral award explicitly declared this map to be “without legal effect.” China’s unilateral maritime law enforcement activities in the South China Sea also do not comply with various UNCLOS provisions on coastal State rights and the prohibitions against actions that hamper efforts to reach final delimitation agreements in the South China Sea. The 2020 Summit Declaration of the Member States of the Association of Southeast Asian Nations (ASEAN) correctly emphasizes UNCLOS as the legal framework to determine maritime entitlements, sovereign rights, jurisdiction, and legitimate interests over maritime zones in the South China Sea

Icescr Minimum Core Obligations and Investment: Recasting the Non-Expropriation Compensation Model During Financial Crises

This Article proposes a reassessment of current methods for valuing compensation owed by host States for breaches of non-expropriation standards of investment treaties, when the host State breaches such standards in order to fulfill obligations to its citizens under the International Covenant on Economic Social and Cultural Rights (ICESCR). The ICESCR minimum core obligations continue to have binding force during financial crises, despite the latter's impairment of host States 'fiscal resources and social protection capabilities. Current investment arbitral jurisprudence involving financial crises show that tribunals have not adjudged host States implementing interventionist social protection measures to be responsible for direct or indirect expropriation, but rather for violating other treaty standards such as the 'fair and equitable treatment" clause. Arbitral tribunals have generally determined compensation for such breaches by referring to a 'fair market value" standard, more synchronous with assumptions of perfectly competitive markets. However, the process of determining compensation for breaches of non-expropriation standards is governed by the general law of international responsibility, of which compensation is only one of the forms of reparations. Under the law of international responsibility, compensation is not intended to be punitive or expressive, but is evaluated according to the objective conduct of both the injuring State and the injured State, in order to reach the most equitable outcome that redresses damage to the injured State. Investment arbitral tribunals determining compensation for a host State's non-expropriation breaches should, thus, be similarly obliged to reach for equitable outcomes, rather than automatically resorting to the flawed definition of the 'fair market value" standard

Rawlsian fairness and international arbitration

Critics of international arbitration predominantly invoke the concept of "fairness" in four ways. First,fairness is associated with procedural due process concerns, involving the expected trade-off between party demands for efficiency and confidentiality in dispute resolution and in court litigation where there are expectations of full presentation and disclosure of evidence and transparency in the conduct of arbitration proceedings. Second, fairness is also used as a criterion for assessing dispute resolution outcomes, in regard to how arbitral tribunals choose their interpretive methodologies or retain subjective discretion when applying substantive law or rules to the given facts of a dispute. Third, critics assert unfairness in pointing out the absence of full judicial review of arbitral awards with merely a limited recourse to appeal as the control mechanism in international arbitration. Fourth, recent empirical attempts by scholars argue fairness synonymously with the legitimacy of community decision-making and participation rights, where questions have arisen in regard to perceived inequalities in the appointment of arbitrators, the composition of arbitral tribunals, and the ability of arbitrators to resolve public interest dimensions attaching to international arbitration disputes...et

Leveraging International Economic Tools to Confront Child Soldiering

Child soldiers in theatres of armed conflict represent the worst and most abusive forms of child labour. States parties to the conflict, as well as third party States, bear differentiated and continuing international legal obligations in relation to child soldiering. Not only are States parties to the conflict barred under international humanitarian law from drafting this class of protected persons into child soldiering, but it may also be argued that other States in the multilateral economic system can independently take measures pursuant to the General Exceptions (Article XX) and Security Exceptions (Article XXI) clauses of the GATT 1994 to ensure, prevent, and deter parties from enjoying economic advantages illicitly obtained from the labour of child soldiers. As the International Labour Organization has advocated in ILO Convention No. 182, States also have a significant role in post-conflict situations to guarantee effective and meaningful international human rights protection in the demobilization of child soldiers and their reintegration to their respective home communities and regional societies. Where child soldiers have been used en masse to perpetuate trade in both facially-licit and contraband goods, States can design policy measures that facially depart from the multilateral trading rules against non-discrimination, most favoured nation, market access, and unfair trade, but without incurring international legal sanction

ASEAN Investment Treaties, RCEP, and CPTPP: Regional Strengths, Norms, Institutions, and Politics

Southeast Asia attracts foreign investment more rapidly than elsewhere in the world, including China. Southeast Asia’s evolving regional strategies, norms, institutions, and politics for investment governance should be of considerable interest to global decision-makers. This Article compares evolving investment treaty strategies and norms between the regional investment treaties of: (1) the Association of Southeast Asian Nations (“ASEAN”); (2) the latest draft investment chapter of the China-led sixteen-member Regional Comprehensive Economic Partnership (“RCEP”), to which all ten ASEAN Member States are also negotiating parties; and (3) some features of the current draft investment chapter for the Trans-Pacific Partnership (now renamed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”))

Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. U.S.) (Judgment on Preliminary Objections) (I.C.J.)

On February 3, 2021, the International Court of Justice delivered its judgment on preliminary objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America). The judgment rejected all of the United States’ preliminary objections, declared the admissibility of Iran\u27s Application, and held that the Court has jurisdiction “on the basis of Article XXI, paragraph 2 of the Treaty of Amity, Economic Relations, and Consular Rights of 1955.