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.

Melissa Loja on International Agreements between Nonstate Actors as a Source of International Law (ASIL Proceedings)

"International Agreements between Nonstate Actors as a Source of International Law"

Melissa Loja
2018, Vol 112, pp 151-5
Proceedings of the 112th Annual Meeting of The American Society of International Law

Abstract: International issues that are resolved traditionally through agreements between states are managed currently through agreements between government agencies and corporate entities. Government agencies1 and corporate entities are nonstate actors that have no formal capacity to engage in international lawmaking. Are their international agreements a source of international law? 

     The question is addressed in a case study of petroleum agencies and corporations in ninety-eight countries. These agencies and corporations are authorized to conclude agreements to settle disputes over petroleum resources that are shared by states across maritime zones and boundaries (shared resources). Their agreements are subjected to linguistic and procedural criteria for purposes of identification as a source of international legal rules on shared resources. The present paper summarizes some of the data and findings in the case study.  To listen to the presentation, click here.