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    12:54 AM Bill Puah Ee Jie (LL.B. Candidate, Singapore Management University)

    Indo-Pacific Strategies and International Law

        

    Introduction

    On 30 September 2022, the Singapore Management University Yong Pung How School of Law (“SMU YPHSOL”) organised and hosted the webinar “Global Faculty Forum: Indo-Pacific Strategies and International Law”. Funded by the EU Jean Monnet Chair programme and the Korea Foundation, the webinar sought to explain the convergence of Indo-Pacific strategies by the United States (“US”), European Union (“EU”), and Association of Southeast Asian Nations (“ASEAN”) from a legal perspective that focuses on international trade and sustainable development.

    Opening remarks were delivered by Professor Pasha L. Hsieh (Professor & Jean Monnet Chair, SMU YPHSOL). He introduced the speakers as leading academics and officials from the Indo-Pacific and Europe who would provide insight into the US’s Indo-Pacific Economic Framework (“IPEF”), the EU’s Strategy for the Indo-Pacific region (“EU’s Strategy”), and ASEAN’s regime. There will also be discussion of the action plans of and perspectives from many other countries.

    Introduction

    The first speaker, Professor Desiree LeClercq (Assistant Professor, Cornell University), articulated what the US’s IPEF could do for the Indo-Pacific and how it could provide a new entry point in trade and labour between the US and the Indo-Pacific based on her paper titled “The Indo-Pacific Economic Framework for Prosperity: Promise or Peril for Labor Governance Through Trade Instruments”.

    She began by pointing out the escalating pressure on the Biden administration since the Trump’s administration withdrawal from Trans-Pacific Partnership negotiations left the US in the awkward spot by causing a loss of trust and confidence. The administration, therefore, is struggling to “reimagine a new way to engage”, not only to resume old friendships but also to counteract the “Chinese pull”. This explains why the US Trade Representative (“USTR”) had put forward IPEF. She elaborated on three things.

    First, she thought it is clear that IPEF’s pillars have connections with worker rights, and that labour components have tremendous importance under its framework. Its leaked draft spoke of high standards of labour commitments that benefit workers, but this had caused quite a stir as it made some members disinclined to join IPEF. There was also significant trepidation about whether the US will employ IPEF to impose its own conception of labour rights onto other countries. Nevertheless, she explained why she did not think this was truly a concern.

    Secondly, she pointed out that the main problem with current US labour provisions is based on the history of what the US has done as a trade partner with these international rights. Thirdly, she believes that IPEF could correct this course in various ways. For one, the enforcement of ILO rights can be reconceptualized by granting leave for IPEF members to consult. Secondly, IPEF members must allowed to use the flexibility afforded under ILO’s pluralist regime to avoid instigating competition with ILO’s regime. Thirdly, resources could be provided to help countries create and strengthen consultative mechanisms under the system. These will strengthen IPEF.

    Professor Luke Nottage (Professor, University of Sydney; Visiting Professor, SMU YPHSOL) made three comments on Professor Desiree’s presentation. First, he questioned whether ILO’s system was sufficient to improve labour rights globally as it may be untrue to implicitly assume that a process-oriented approach generates good outcomes worldwide. Secondly, he suggested that IPEF may not truly be a well-thought, principled approach to labour trade leakage, but only a practical measure as the US congress’s fractured nature may make it difficult for the current administration to obtain approval for such matters. Thirdly, he was curious about comparing between consumer law and labour law and thinks that labour law’s differences from consumer law may justify more effort and sanction-based mechanisms associated with trade agreements to ensure a race-to-the-top rather than race-to-the-bottom.

    Responding to Professor Luke, Professor Desiree acknowledged that ILO’s processes are weakened by corporatism as the process only includes workers, unions, employers, and governments, but not civil society engagement and the informal economy. However, she thinks ILO’s tripartite process should still be transposed to other institutions because it allows for compliance to take place across diverse systems. Parallel trade regimes would thus strengthen international labour governance by creating an aperture in the types of consultations that are taking place. She also agreed that Congress and President were trying to make the best out of a difficult situation. As for consumer law, she thinks it may effectively boil down to the identity of the lobbyists and how germane the rights or interests are considered in trade. There must be a change in consumer protectionism’s lobbying strategies towards trade sanctions.

    Professor Han-Wei Liu (Senior Lecturer, Monash University) found Professor Desiree’s paper fascinating, but suggested that some questions remain unanswered. First, there may be a lack of political will for parties to make commitments under IPEF, and he is not sure who (or which industry) would lobby for stronger labour standards and why they would do so given the competing interests and values. Secondly, there may be inherent boundaries as it may involve the US pushing labour rights onto others, especially when the legal tradition or culture may not be appropriate for transplantation. Thirdly, the use of IPEF may be questionable because of its status as a trans-governmental network means (unlike a treaty) it is not a binding commitment. There are other mechanisms like APEC.

    Responding to Han-Wei, Professor Desiree explained that political will may be by lobbying  from American workers who don’t want to lose jobs to foreign competition. Furthermore, other mechanisms were inadequate for different reasons. When she was at APEC, her attempt to start a program that voluntarily looks at labour provisions and trade was vetoed by China and others. APEC members simply refused to allow labour to be a formal topic of conversation in economic platforms. There needed to be the use of available platforms, such as IPEF.

    Indonesia’s perspective on Indo-Pacific Strategies

    The second speaker, Professor Arie Afriansyah (Associate Professor of International Law, Universitas Indonesia), introduced the Maritime Security Cooperation Framework in the Indo-Pacific using his paper titled “Sailing Between Reefs: Balancing Indonesia’s Maritime Security Cooperation in the Indo-Pacific”. He expresses Indonesia’s position as one of “maritime centrality”, emphasising the country’s need to conduct maritime cooperation while balancing various interests and remaining neutral as it sits in the middle of a geopolitical rivalry between hegemonic states.

    Professor Arie started by defining the Indo-Pacific region as a broad geopolitical term coined by the US which “tries to connect the Indian and Pacific Oceans”. He then introduced the influences of various stakeholders in the region, and that Indonesia had opened its doors to cooperation with all countries, although the scope and extent of cooperation differed. Specifically, Indonesia’s cooperation with US has enjoyed many areas of cooperation, but especially in maritime security. Meanwhile, cooperation with China and ASEAN focused more on economic aspects, as seen from China’s Belt and Road Initiative. Nevertheless, China and Indonesia’s relationship had been dilemmatic due to the tension between Indonesia’s EEZ and China’s claim on the nine-dash line. Cooperation with Europe focuses more on environmental aspects, whether with the EU generally or with countries like France, Portugal, and Norway.

    Professor Luke Nottage found Professor Arie’s perspective useful for explaining how Indonesia’s has been finding a mutual balance between hegemonic powers and worked with various partners for different interests. However, he was sceptical about ASEAN’s role for maritime cooperation and thinks that the prospect is bleak as ASEAN faces many internal divisions.

    Responding to Professor Luke, Professor Arie agreed it may be difficult for ASEAN to make changes. There are restraints that may cause a contradictive policy within the organization. While all the dispute settlements have always been collegial, it would take more years for political settlement among the members.

    Professor Han-Wei Liu (Senior Lecturer, Monash University) found that Professor Arie’s paper really sheds light on Indonesia’s perspective. However, he points out certain problems. First, the term “Indo-Pacific” was created by the US and may carry political connotations. The term may risk excluding certain countries and may imply that the region is more aligned with the US and that China is not welcomed. Secondly, while Professor Arie criticises rule-based cooperation, he should identify the forms that these cooperations take. Thirdly, since opportunities presented are not all positive but contain negative aspects, there needs to be analysis of conflict of interests and alternative mechanisms. These may pose a great dilemma for Indonesia.

    Responding to Professor Han-Wei, Professor Arie replies that cooperation has always been based on Memorandum of Understandings (“MOU”) and not treaty-based, it is not a right and obligation that can be pursued at tribunals However, this MOU has always been implemented effectively at both business and corporation level. While only “cooperation”, it sends a message to ensure people restrain their action in the region and avoid acting in a negative way. In this regard, Indonesia recognises the tensions with various actors, the need to adhere to treaty obligations, and tread carefully concerning matters of territorial sovereignty.

    EU’s Strategy for the Indo-Pacific

    The third speaker, Professor Stefanie Schacherer (Assistant Professor, SMU Yong Pung How School of Law), introduced the EU’s Strategy using her paper titled “Prospects of a Korean Transition”. She highlighted that the EU’s Strategy is dominated by economic and geopolitical aspects, but that it also seeks to build more alliances with countries in the Indo-Pacific for sustainability. The EU’s Strategy’s sustainability pillar is aligned with the European Green Deal, which is the internal EU policy and the main policy instrument for the Korean transition. She explained how the EU has taken more concrete measures to strength cooperation in sustainability, such as engaging in more “crème alliances” or “crème partnerships” with those who signed up for climate neutrality, expressed desire to engage in high level dialogues on the environment, and sought to strengthen global governance on these sustainability issues and foster cooperation in certain international organisations.

    The EU Strategy interacts with the individual Indo-Pacific strategies of its member states, each of which reiterates the importance of climate action and sustainability generally. While much can be said, the general message is that strengthening and enlarging existing policies and measures is desirable. While the strategies do not mention international treaties, they are not the focus of the strategies. Additionally, sustainability is already mainstream in many of the EU’s treaties and is also common or even standard for various FTAs concluded by the US with various ASEAN countries.

    Professor Nengye Liu (Associate Professor, SMU YPHSOL) noted that the papers are clear that the EU’s Strategy is a joint communication policy document. However, since Professor Stefanie’s paper mainly focused on the EU’s Green Deal, a potential neglect is that the Green Deal’s implementation requires compliance with many legally binding regulations and directives.

    He made two further comments. First, the “Brussels Effect” should be explored, especially since the EU is such a powerful bloc that may force regions to comply with its standards. Secondly, there are many ongoing environmental negotiations among various parties. There must be an examination of the extent to which these negotiations reflect the Indo-Pacific, with a lot of international law-making perspectives that can be further discussed.

    Professor Michelle Lim (Associate Professor, SMU YPH SOL) made a few comments too. First, she thought it may be interesting to further explore ASEAN’s engagement with each of the Sustainable Development Goals (“SDGs”), especially given the broadness of the sectors that SDGs encompass. She also found it interesting that Professor Stefanie highlighted how the European Commission believes that the EU can mobilise its neighbours and partners to join it on a sustainable path when considering that the Indo-Pacific was where EU member states had histories of colonialism. It may be interesting to examine how (or whether) former colonialists and colonies will collaborate, especially since the term “Indo-Pacific” is so broad. This called into question the definition and utility of the concept of the Indo-Pacific, and there needs to be an examination of whose interests the construct serves and who gets to define it. All-in-all, she expressed the view that the EU’s sustainability strategy is where meaningful partnership will be seen, but there are difficult questions of extractive colonial legacies, contemporary responsibility, and engagement with Indo-Pacific countries as sovereign equals.

    Connectivity of Indo-Pacific Strategies

    The fourth speaker, Professor Yurika Ishii (Associate Professor, National Defence Academy of Japan), discussed the development of norm-setting regarding connectivity under the various Indo-Pacific strategies and the importance of connectivity in the region’s legal order using her book, “Japanese Maritime Security and Law of the Sea”. This concept of connectivity encompasses several notions, namely: (1) logistic flow and transportation infrastructures; (2) freedom of navigation, commerce, and communication; (3) common standards of digital networks.

    Professor Ishii noted that States generally face many challenges in building and sustaining connectivity even though they are trying to lead the way in developing it. She thus sought to answer how connectivity is reflected in the latest strategies of major players. First, ASEAN’s Outlook remains abstract with no actionable policy because countries having divergent interests and policies on trade and investment and considering ASEAN’s style of non-binding norms and confidence-building measures. Secondly, while the US has not explicitly mentioned connectivity in IPEF, the concept forms the foundation of all its pillars, and the US will try to incorporate the high standard in the QII Principles in its new frameworks for trade and investment, including IPEF. Thirdly, the EU has developed a plan to increase engagement with the Indo-Pacific, but its stance on connectivity appears mixed and in line with its core values. To conclude, there has been insufficient infrastructure development, which hinder regional cooperation and integration.

    Professor Nengye Liu commented that there should also be an examination of the Brussels effect. Furthermore, there must also be an examination of not just what the policies of the EU, US, and China say, but what exactly plays out (or doesn’t play out) on the ground in the Indo-Pacific as there may be a lot of talk but little action. 

    Responding to Professor Nengye, Professor Ishii believed the Brussels effect is important, but for the EU to enforce its EU law and to have the actual effect, it is necessary for EU companies to invest in the region for EU to obtain the “hook” to apply its laws. Even though there has not been a close examination of the actual practice of EU companies investing in the region and the conflict between EU and Indo-Pacific states, the conflict does not appear sharp because there hasn’t even been much investment, especially when compared with the EU-US, which has close economic relations, and where the effect would be more evident.

    Responding to Professor Michelle’s earlier comments on the concept of the Indo-Pacific and the histories of colonialism, Professor Ishii agreed that the concept of the Indo-Pacific has diverged. Yet, it may not be possible nor necessary to define its scope as States have deliberately used the term flexibly. Additionally, she questioned whether the concept of colonialism really features in the EU’s engagement as her understanding was that the EU was engaged in the region because of their strong interest in preserving maritime order.

    Closing Remarks

    Closing remarks were delivered by Ms. Justyna Lasik (Head, Trade & Economic Section, Delegation of the European Union to Singapore), who explained the rationale of the EU’s strategy and its trade component. Preliminarily, the EU recognises the Indo-Pacific as key for shaping international order and addressing global challenges. It is central for global and European value chains, and trade and investment. Geopolitical dynamics have also grown recently, giving rise to intense competition, which directly impacts European security and prosperity. Against this backdrop, the EU adopted the EU’s Strategy after intense discussions.

    The EU’s Strategy contains seven priority areas, and she elaborated on two during her insightful closing remarks. First, the priority for sustainable and inclusive prosperity includes completing FTA negotiations, implementing existing FTAs, and ratifying recently negotiated and concluded trade and investment protection agreements. The EU is also completing digital trade routes, trying to relaunch negotiations to see if treaties can be concluded, and attempting to intensify its sector engagement with ASEAN. Finally, the EU also tried to strengthen the rules protecting international trade against unfair practices.

    Another priority of the EU’s Strategy is digital governance and partnerships. This is relevant as the Indo-Pacific has many forerunning countries in the digital economy. The EU is therefore advancing on and concluding partnerships on digital trade that focus on enhanced cooperation on digital infrastructure, skills, digital transformation of business, digitalization of public services and digital trade. Furthermore, the EU has also focused on cooperation on research and innovation and opens the possibility to several Indo-Pacific countries that are strong scientifically and technologically in hopes of greater association.

    To conclude, Ms. Justyna believed that the EU must develop its strategies while being mindful of what others have been doing in the region. Their strategies mean the EU cannot shift its focus away but that it must adjust its policies. Its involvement in the region is not only for promoting its own interests but also for promoting a rule-based international order and global standards for sustainable development.

    Conclusion

    As the forum came to a close, Professor Pasha Hsieh expressed his gratitude to all participants for their presence and insights on the Indo-Pacific strategies and international law.

    * The writer would like to thank the SMU Yong Pung How School of Law and Professor Pasha Hsieh for organising the webinar and for the opportunity to attend and cover the event, and Professor Pasha Hsieh for his comments on this piece.

    ** This blog entry may be cited as Bill Puah Ee Jie, “Indo-Pacific Strategies and international Law” (1 December 2022) (http://www.singaporelawblog.sg/blog/article/282)

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