Justice Pang Khang Chau: Speech delivered at International Law Association (Singapore Branch) Symposium

5.      Finally, there is the Cape Town Convention and its Aircraft Equipment Protocol,⁽³⁾ which created an international system for aircraft financing with the aim of improving the ease of enforcing security interests in aircraft and aircraft equipment. Ease of enforcement reduces risks for lenders. This reduction of risks has two consequences – first, it makes credit for acquisition of aircraft more readily available; second, it reduces the costs of financing for airlines. What this means for you and I, as consumers, are twofold. First, the greater availability of credit may, hopefully, encourage airlines to replace their aircraft more often, so that we get to travel in newer and safer aircraft. Second, cost savings for airline would, hopefully again, find their way into more affordable airfares for us or, at least, airfares which do not inflate as quickly as they otherwise would. 

6.      I would digress here to note that, although the Cape Town Convention takes the form of an international treaty, which is a public international law instrument, the subject matter of the Cape Town Convention is, in substance, a matter of private international law – that is to say, the cross-border enforcement of security interests arising from aircraft financing. I highlight this because, contrary to popular belief, the mandate of the ILA is not confined to the sphere of public international law, but also includes private international law. The constitution of the ILA expressly provides that “[t]he objectives of the Association are the study, clarification and development of international law, both public and private”.⁽⁴⁾ Over the years, the ILA had established committees to examine various issues of private international law ranging from “Intellectual Property and Private International Law” to “International Civil and Commercial Litigation” to “International Commercial Arbitration” to “Protection of Privacy in Private International and Procedural Law”.⁽⁵⁾  I am therefore delighted that the organisers of today’s symposium have decided to devote equal time to discussions of public international law and private international law.

7.      If the example of international aviation which I have just referred to still seems too “international” and “up in the air” for some of you, let me try to offer a more local and intimate example – that of a substance which makes up 70% of each of our bodies. If you are residing in Singapore, I believe you do not need to be reminded that a significant portion of Singapore’s water supply comes from Malaysia. The security of this supply of water from Malaysia is guaranteed by an international treaty known as the Independence of Singapore Agreement. This particular treaty was described by the Malaysian representative to the United Nations Conference on the Law of Treaties, held in Vienna in 1968, as an example of treaties “so fundamental to the very existence of States that they simply could not be dispensed with, whatever political differences might arise.” ⁽⁶⁾ The existence of this treaty, and the security it provided, contributed to the confidence and stability which was so important to Singapore’s economic development in its crucial fledgling years.

8.      These examples illustrate how international law has shaped our past and our present, which was yesterday’s future. As Dr Carl Sagan famously stated, “we must know the past to understand the present”. To anticipate the role international law has in shaping the future, we can perhaps try to draw lessons from its role in shaping the past and its continuing influence on the present.

9.      With these introductory thoughts in mind, let me now invite you to join me on an exploration of international law – beginning with its past, tracing it into the present, and anticipating its future. 

   II.       The Past

10.      First, the past. Our history is rife with moments where international law has changed the course of the future. International law, after all, is a progressive field occupied by international lawyers with a universalist, idealist bent. As the late Italian professor and judge, Antonio Cassese, had noted in his valedictory book “Realizing Utopia”, innovative international jurists have the power to identify and suggest new ways and modalities to achieve a universalist vision of the good.⁽⁷⁾ Throughout history, we have seen prominent international lawyers do just that. Faced with issues in the international society, international lawyers stepped in and championed norms and institutions that laid the foundation for our world today.

11.      Let me start by mentioning a well-known and oft-quoted series of events which began with a naval battle that took place just off the coast of Singapore, near Changi, exactly 420 years ago. On the morning of 25 February 1603, a Portuguese vessel, the Santa Catarina, was attacked by two vessels under the command of Admiral Heemskerk of the Dutch East India Company. The battle lasted the entire day and, as the evening approached, the Santa Catarina was so badly damaged that her captain and crew decided to surrender her to the Dutch in return for safe passage to Malacca. The Santa Catarina was so richly laden with cargo from China that, when the cargo was subsequently auctioned in the Netherlands, it attracted considerable attention from all over Europe. The Portuguese authorities did not sit idly by. They accused the Dutch of committing piracy and invoked the Papal Bulls to legitimise their exclusion of other European powers from the lucrative East Indies trade routes. The Dutch East India Company engaged a young lawyer named Hugo Grotius to publicly defend the legitimacy of their actions. In 1609, Grotius published a pamphlet entitled Mare Liberum (“The Freedom of the Seas”) which argued that the Dutch action was justified because no single nation was permitted, under the law of nations, to claim possession or dominion over the seas.⁽⁸⁾  This meant that no State had the exclusive right to constrain the navigation and trading activities of other States in the open seas. Accordingly, the Portuguese could not continue to deny the Dutch access to the spice-rich East Indies.

12.     As Grotius’ thesis could potentially impinge on interests of a number European powers in different ways, it elicited responses from various legal scholars, the most notable of which was the English jurist, John Seldon, who published a rebuttal that was interestingly entitled Mare Clausum (“The Closed Seas”). These writings ultimately shaped the policy of various European powers as they spread their maritime and colonial ambitions throughout the world.  

13.     Eventually, these 17th and 18th century debates resulted in a consensus where States are allowed to exercise sovereignty over a limited extent of waters immediately adjacent to their coast, while recognising the freedom of the high seas. This freedom which Grotius championed is codified today in Article 87 of the United Nations Convention on the Law of the Sea. In particular, Article 87(1)(a) recognises the freedom of navigation in the high seas. Since Grotius, no one nation has been permitted to lay sovereign claim over the high seas. International lawyers of the past, through a process of claim and response, have shaped the normative structures that are deeply embedded in our world today.

14.     International lawyers and jurists of the past have also played an important role in reconceptualising the relations between individuals or private entities and the state. This can be seen in the work of Sir Hersch Lauterpacht who championed the new legal norm of “crimes against humanity”, or the notion that an individual has inalienable rights against the State. Lauterpacht’s efforts were in response to atrocities committed by the German State against marginalized communities at the height of World War II.

15.     This phenomenon can also be seen in the progressive development of the law on the protection of aliens abroad, which was in response to the increasing incidents of oppressive treatment towards foreigners as cross-border commerce and industrialisation gained pace around the world. Prior to the 20th century, the notion of a sovereign State being obliged to treat the foreigners, or aliens, on its own soil in accordance with an external minimum standard was inconceivable. When Emer de Vattel addressed the law of protection of aliens abroad in “The Law of Nations” in 1758, he considered that the State only had to protect the alien in an equal manner as its own subjects – a concept which we have come to know as “National Treatment” in modern international economic law.

16.     However, in the 18^th and 19^th centuries, as industrialisation and cross-border commerce spread throughout the world, customary international law on the protection of aliens developed through diplomatic practice and the decisions of international tribunals. This law was built interstitially from case to case, such that in the 20^th century, it was commonly understood that an alien’s rights were no longer purely under the purview of a municipal State.⁽⁹⁾ Instead, the right of an alien to a minimum standard of treatment became a matter that fell within the protective ambit of international law.

17.     As practising international lawyers, you would all be familiar with the line of early 20th century cases which set the stage for the minimum standard of treatment in international investment law. One notable case is Neer v. Mexico in 1926, where the Mixed Claims Commission proclaimed that “the propriety of governmental acts should be put to the test of international standards”.⁽¹⁰⁾ These days, foreign investors are accorded certain privileged standards of treatment because of how these international laws developed over the past. The development of these international laws over time, aided by the work of international lawyers and jurists, had laid the foundation for our present-day system of international trade and investment.

   III.       The Present

18.     Now that I’ve touched on how international law has shaped our past, I would like to speak about the present.

19.     Looking at international developments today, one may be forgiven for asking whether international law is facing an existential crisis. We see the Russian invasion of Ukraine, deadlock and consequent inaction at the United Nations Security Council on pressing issues, as well as impasse over the WTO dispute settlement system. You may call me an optimist, but I believe that international law is alive and well. International law continues to shape many basic interactions in our daily lives. This is not only true in the public international law space, but also in the world of private international law and transnational commercial activity. Let me illustrate this with some examples.

20.     First, in the public realm, I would say that States and international organisations continue to regard themselves as operating under and subject to international law. An observer of current events may now be confused. How can this be the case if we are seeing States like Russia invade the territory of another sovereign nation like Ukraine? Surely, States do not respect international law when they can easily breach one of the fundamental norms of the international order. Article 2(4) of the United Nations Charter clearly encapsulates this norm. It provides that “All (states) shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations.”

21.      It is not difficult to find someone who can eloquently explain how Russia’s actions are a clear violation of international law.⁽¹¹⁾ Some might even claim that we are seeing a “death” of Article 2(4).⁽¹²⁾  Although I agree that there is a strong argument in favour of the illegality of Russia’s actions, I think that what is more interesting (for the purposes of our discussions today), is how Russia has attempted to justify its actions.  It is in how a State justifies their actions that we get a gauge of what they accept to be the laws that apply to them.  

22.      At 6:00 am Moscow time on 24 February 2022, President Vladmir Putin took to the airwaves. To the nation, he announced that Russia would be embarking on a “special military operation” in Ukraine.⁽¹³⁾ He offered two grounds for Russia’s actions. First, that Russia was acting in the collective self-defence of the newly formed People’s Republic of Donetsk and People’s Republic of Luhansk in the Donbas region. The Ukrainian government, Putin claimed, was repressing and even committing genocide against these breakaway republics. These were actions that warranted Russia’s exercise of its collective self-defence obligations under Article 51 of the UN Charter.⁽¹⁴⁾ Putin’s second justification was that Russia was acting in its own self-defence.  According to Putin, with the threatened expansion of NATO into Ukraine, a “hostile ‘anti-Russia’ was taking shape” in territories adjacent to Russia, constituting a “very real threat” not only to Russia’s interests but to Russia’s very existence and sovereignty.

23.     Self-defence. Article 51. Genocide. State sovereignty and succession. These are all norms of international law. Russia’s resort to the language of the law to justify their action, even while most objective observers consider Russia to be violating the law, speaks volumes about the power and hold of the international law on the world stage. If Russia really did not think that international law was applicable or relevant, Putin would not have gone to such lengths to justify Russia’s invasion of Ukraine. We see this pattern replicated throughout current events. Another example is how China employs the language of “historic rights” when justifying its territorial claims in the South China Sea.⁽¹⁵⁾

24.     Speaking from my personal experience as the former Director-General of the International Affairs Division of the Attorney-General’s Chambers, when there were occasions where I had to point out to my foreign counterparts that their governments’ actions may not have been consistent with international law, none of them ever replied that international law did not matter to their government or that their government need not pay heed to international law. Instead, the usual response would be an explanation of why their governments’ actions were consistent with international law. On a brighter note, I am also glad to observe that there had been more than one occasion where such exchanges of views on the legal position led to the other side adjusting their actions to bring them more in line with international law.

25.      Why do States feel the need to invoke international law, even when they may be said to be violating the law? I suggest that this is because no State would consider it to be in its own interest to render itself an international “outlaw”, turning its back on the international legal system and seeking to place itself outside the reach and constraints of international law’s normative process. Just as, in the 17th Century, Portugal invoked the Papal Bulls as legal justification for its exclusionary trade practices while Grotius invoked natural law to argue for freedom of navigation and free trade, State actors of today continue to find that positioning their actions within international law would allow them to occupy the moral high ground, claim legitimacy and obtain leverage over their opponents. It is from here that I see the glimmer of hope and cause for optimism. This is because, once a State accepts that it is subject to the international legal process and seeks to justify its action through the rhetoric of international law, it will naturally plan its actions to fit within the plausible limits of legal reasoning. This will act as a constraint on the range of actions available to a State. It is a matter of simple logic that, once you claim to be subject to the law and claim to be complying with the law, the very need to invoke the assistance of legal rhetoric will operate as a constraint on the range of possible courses of action open to you.

26.     Now, moving away from the realm of States and governments, what about international law in the private and commercial space? I saw the registration list for this event earlier and noticed that many of you here are in the practice of international arbitration and commercial disputes. I don’t need to say much then about the role of private international law in your daily lives. Issues of jurisdiction, choice of law and enforcement of foreign judgments – these are ever evolving areas of law that would influence the advice you render to your clients.

27.     I would say that, in comparison, the star of private international law shines much brighter indeed, following a slew of positive developments in recent years. The Hague Conference on Private International Law remains occupied with the harmonisation of laws in many areas ranging from the enforcement of family agreements to intellectual property.⁽¹⁷⁾ There is also a flourish of activity in the United Nations Commission on International Trade Law, or UNCITRAL, which has produced several conventions in recent years, including the Singapore Convention on Mediation and the United Nations Convention on the International Effects of Judicial Sales of Ships.⁽¹⁷⁾ In fact, the coming into force of the Singapore Mediation Convention in 2020 and the coming into force of the Hague Judgments Convention earlier this month,⁽¹⁸⁾ hot on the heels of the success of the Hague Choice of Court Convention,⁽¹⁹⁾ are exciting developments with serious potential to shape the future. Just as the New York Convention⁽²⁰⁾ gave international currency to arbitral awards and, consequently popularised resort to arbitration in international commerce, it is anticipated that the Singapore Mediation Convention may have a similar effect on mediated settlement agreements and that the Hague Judgments Convention may do the same for court judgments. Closer to home, the Singapore Supreme Court makes our contribution in this field, not only through its prolificacy in issuing judgments which clarify and develop difficult issues in private international law, but we also do so by being active in concluding memoranda of guidance on enforcement of money judgments as well as memoranda on court-to-court communications with other like-minded judiciaries.

28.     Before I move on to the final part of my speech, I want to make a quick note of another area of international law that bridges the gap between the public and the private – international investment law. This area of international law shapes the present by regulating what a government can do towards foreign investors within its borders. With the plethora of bilateral investment treaties and regional free trade agreements in place around the world, States have subscribed to certain principles in its treatment of the foreign businesses that invest money on their shores. These investment guarantees and the established dispute resolution mechanisms provide commercial entities with the confidence to invest, and facilitates economic growth and trade around the world.

29.     Earlier I talked about how minimum standards of treatment, as a legal norm, evolved over the 18th to 20th centuries. This norm has come to the fore again in the recent case of Elliott Associates v Republic of Korea before the Permanent Court of Arbitration.⁽²¹⁾ In that case, what was essentially a shareholder dispute became an investor-State dispute under the Free Trade Agreement between the United States and the Republic of Korea. The claimant, Elliott Associates, was able to initiate a claim under the Free Trade Agreement due to the Korean Government’s intervention in the 2015 merger between Samsung C&T Corp and Cheil Industries Inc. Elliott Associates, a minority shareholder, had opposed the merger but failed to block it. Criminal investigations revealed that corrupt State officials had pressured the National Pension Fund, a majority shareholder, to vote in favour of the merger. Against this backdrop, the Permanent Court of Arbitration found that the Korean State had failed to afford Elliott the minimum standard of treatment under the Free Trade Agreement, and awarded Elliott compensation of close to US$50 million.

30.     I bring up this case because it engages interesting issues in the law on State attribution. With Elliott, States must now be careful as to what actions will be attributed to it, even in what is traditionally a commercial space. The case signals that under international investment law, a State must prevent the acts of a few corrupt officials from affecting a foreign investor’s investment, or it might be in breach of its minimum standard of treatment obligations. Without a doubt, developments such as these in international law will have an impact on how States operate towards their investors around the world. International law, in this way, continues to play an important role in our present.

 

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