Melissa Loja (PhD 2018) on Recent Engagement with International Human Rights Norms by the Courts of Singapore, Malaysia, and Philippines (International Journal of Constitutional Law)

"Recent engagement with international human rights norms by the courts of Singapore, Malaysia, and Philippines"
Melissa Loja (PhD 2018)

International Journal of Constitutional Law
Published in March 2021

Abstract: This article makes two claims about international human rights norms in three English-speaking courts in Southeast Asia. First, the courts are engaging with the norms, contrary to the prevailing view that the four-walls and dualist doctrines maintain a stranglehold on the region. Singapore courts relied on foreign case law applying the European Convention on Human Rights to rationalize a liberal interpretation of arbitration agreements; Malaysia’s Court of Appeal based its decision on the Association of Southeast Asian Nations Human Rights Declaration, despite lack of legislative incorporation; and the Philippine Supreme Court applied the Convention on the Protection of Persons against Enforced Disappearances (CPPED) as evidence of customary international law, notwithstanding that the government had repeatedly refused to ratify CPPED. Second, their engagement is characterized by inconsistency and arbitrariness as it is governed more by exigency than by human rights philosophy. The Philippine court invoked universality to give direct but selective effect to the norms. In the name of pluralism, Malaysian courts gave direct effect to the norms, but the effect has been transitory. In Singapore, the norms have teleological effect in private law cases involving commercial and investment interests, but not in public law cases involving individual and political rights. The lack of principled practice and the ensuing uncertainty undermine the ethos of human rights and raise the question of whether more practice makes right.

Anselmo Reyes on Foreign Direct Investment in the Philippines and the Pitfalls of Economic Nationalism (new book chapter)

"FDI in the Philippines and the Pitfalls of Economic Nationalism"
Anselmo Reyes
in Julien Chaisse and Luke Nottage (eds), International Investment Treaties and Arbitration Across Asia (Brill, 2018), pp. 243-279

Abstract: Recent trends in Philippine growth and FDI reveal only modest achievements, when compared with other ASEAN countries, and little impact on income inequality.  These outcomes are attributed to the policy of economic nationalism in the Philippines' constitutional and legislative framework for FDI, whereby government reserves 'strategic' fields to Filipinos, while foreigners face hurdles in making investments.  The account doubts whether foreign nationals can safeguard investments by recourse to Philippine BITS as those reinforce economic nationalism by requiring FDI to comply with Philippine law.  Poulsen's observation that developing countries entered into BITS oblivious of the risks does not seem applicable to the Philippines, which has deftly used BITS to advance economic nationalism.  Litigation before domestic courts is not an alternative for protecting investor rights, but international commercial arbitration may become so in due course.  The account concludes with proposals for future policy.

Melissa Loja Comments on the Final Award in the Philippines/China Spratly Islands Arbitration (ODIL)

"The Spratly Islands as a Single Unit Under International Law: A Commentary on the Final Award in Philippines/China Arbitration"

Melissa Loja (PhD Candidate)

Ocean Development & International Law

2016, Vol. 47, Issue 4, pp 309-326

Abstract: This article addresses the question whether Spratly Islands is “in law a unit … [such] that the fate of the principal part may involve the rest” (Max Huber). The question was pivotal in the Philippines/China Arbitration. The Tribunal addressed it from the perspective of the archipelago provision in the Law of the Sea Convention. This article approaches the question from the perspective of the Japanese Peace Treaty.