Private prosecutions for international crimes: the High Court of Australia closes the door on individuals seeking to end impunity – Keilin Anderson

Last week, the High Court handed down its judgment in Taylor v Attorney-General [2019] HCA 30. It was a close call with a slim 4:3 majority dismissing the application. The decision concerned the attempted prosecution of Aung Sun Suu Kyi under Division 268 of the Criminal Code Act 1995 (Cth) (Criminal Code) which represents Australia’s implementation of the Rome Statute and the source of our universal jurisdiction over international crimes.

The case highlights some complex questions – that arguably linger – about the significant procedural hurdles facing the prosecution of international crimes in Australia.

Event: 2019 International Arbitration Conference, 18 November 2019

The Australian Centre of International Commercial Arbitration (ACICA) and the Chartered Institute of Arbitrators Australia (CIArb Australia) will be holding the 2019 International Arbitration Conference in Brisbane on 18 November 2019. The theme of the Conference is ‘Building Bridges: Resolving Disputes through International Arbitration.’

As international arbitration remains the preferred means for commercial and state entities to resolve disputes in the global economy, building bridges, and not walls, is key to maintaining good relationships to ensure growth, competitiveness and new opportunities.

This one-day conference is Australia’s premier international arbitration event and will launch the 2019 Australian Arbitration Week. Supported by global institutes, government, industry associations, sponsors and media partners, it will bring together eminent jurists including the Honourable Justice Patrick Keane AC, High Court of Australia, who will deliver the keynote address, and expert practitioners from five continents and 15 jurisdictions who will impart their knowledge and experiences in examining emerging trends in various key sectors.

A cocktail networking reception will follow proceedings featuring guest speaker, the Honourable Yvette D’Ath, Attorney General and Minister for Justice, Queensland Government.

Full details of the Conference, including the program and registration, are available on the Conference website. Early-bird registration is available until 18 October 2019 and all registrations close on 13 November 2019.

The International Law Association (Australian Branch) is a supporting organisation for the 2019 Conference.

Event: ‘The Constitutional Prevention of Climate Change’, 26 September 2019

The Centre for Environmental Law at Macquarie Law School is holding its Annual Lecture on Thursday 26 September 2019. The lecture will be delivered by Carlos Bernal Pulido, a Judge of the Constitutional Court of Colombia, on the topic of ‘The Constitutional Prevention of Climate Change’.

Judge Bernal Pulido will explore the increasing practice of States entrenching commitments to prevent climate change (including Cuba, Thailand, the Ivory Coast, Ecuador, the Dominican Republic, Tunisia, Venezuela and Zambia). Within this framework of international and constitutional laws, this lecture aims to answer the question on the role that Constitutional and Supreme Courts ought to play in the prevention of climate change.

The event is hosted at Macquarie University, North Ryde, with refreshments served from 6:00 pm and the lecture commencing from 6:30 pm. Further details can be obtained from the event website or by contacting Dr Shireen Daft, Deputy Director for the Centre for Environmental Law at shireen.daft@mq.edu.au.

The new Hague Convention: Aspirations of Certainty, Efficiency and Access to Practical Justice through the Recognition and Enforcement of Foreign Judgments – Xara Kaye

On 2 July 2019, the Member States of the Hague Conference on Private International Law (HCCH) formally adopted the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Convention), a significant development in the private international law landscape. The aim of the Convention is to create greater legal certainty and efficiency, as well as provide a process for cost-saving and practical access to justice. While the Convention has been heralded as an important instrument that will fill a significant gap in private international law, its impact will be determined by the extent to which it is broadly adopted – an outcome which is not guaranteed.

Event: Challenges for Asia-Pacific International Commercial Arbitration Symposium, 15 November 2019

The University of Sydney is hosting a symposium entitled ‘Challenges and Opportunities for Asia-Pacific International Commercial Arbitration and Investor-State Dispute Settlement’ on Friday 15 November 2019.

The Symposium focuses on recent challenges for international commercial arbitration, especially the proliferation of international commercial courts, and focuses on Hong Kong and Singapore as competing jurisdictions.

The symposium is a joint project with the University of Hong Kong and is co-hosted by the Centre for Asian and Pacific Law at Sydney Law School and supported by the Sydney Centre for International Law.

Speakers include Professor The Honourable Marilyn Warren AC QC, former Chief Justice of the Supreme Court of Victoria and Professor Simon Bronitt, Dean of the University of Sydney Law School.

A flyer setting out more details is below. For full details of the Symposium and to register, visit the Symposium website.

Upcoming ILA Events of Interest

Readers of the ILA Reporter may be interested in the following upcoming events in the International Law Association’s global calendar.

The ILA Regional Conference will be held in Braga, Portugal on 19 and 20 September 2019. The theme of the Conference is the contribution of the case law of international courts and tribunals to the development of international law. The Conference is hosted at the University of Minho School of Law and the keynote speech of the Conference will be given by Judge Antônio Augusto Cançado Trindade of the International Court of Justice. For more details and to register, visit the Conference website.

The London Conference on International Law will be held on 3 and 4 October 2019. The Conference will be hosted at the Barbican Centre and speakers include Judge Abdulqawi Yusuf of the International Court of Justice, President of the Supreme Court of the United Kingdom Baroness Hale of Richmond and Dame Rosalyn Higgins GBE QC. For more details, visit the Conference website. There is currently a waitlist for registrations.

The annual International Law Weekend is being held from 10 to 12 October 2019 in New York City. The International Law Weekend is the premier international law event of the fall season for the American Branch of the ILA and will be hosted at the New York City Bar Association and Fordham Law School. The theme of ILW 2019 is the resilience of international law, examining how international law functions in the era of growing nationalism, deepening economic inequality, climate change, advances in technology and a global migration crisis. Speakers include Judge Kimberly Prost of the International Criminal Court and ILA President Dr Christopher Ward SC. For more details and to register at the early bird rate (valid until 31 August 2019), visit the ILW website.

The biennual ILA Conference will be held in Kyoto, Japan from 23 to 27 August 2020. The theme of the Conference is ‘Bridging for the Future’. The call for papers closes 1 November 2019 and the early registration deadline is 20 May 2020. For more details, visit the Conference website or Facebook page.

For more information on the ILA’s international events, consider following the ILA on LinkedIn, Twitter and Facebook.

Did the War on Iran Just Begin? The Use and Abuse of International Law in the Strait of Hormuz – Natalie Klein

Over the last month, the world has witnessed a series of tit-for-tat maneuvers involving Iran, the United States and the United Kingdom. Sitting amidst the strategic and political stakes are complex questions of international law. Claims of ‘state piracy’ and proposing convoys in the Strait of Hormuz now appear to be contributing to the tension rather than facilitating the resolution of competing claims.

The WTO Dispute Settlement System: Just another Victim on the Road to Tomorrow’s GATT? – Markus Wagner and Weihuan Zhou

The current dispute over the future of international trade (oftentimes referred to as a “trade war”) has moved the WTO from an obscure field of research into the public spotlight. These discussions centre on the economic relationship between China and the US. However, another significant battle is playing out over the future of WTO dispute settlement.

The central question that remains unanswered – and which we are trying to uncover in this post – is why the US has embarked on a process which pits itself against the very large majority of the WTO membership (see only here, here and here) and which has the potential to end WTO dispute settlement. Before the WTO Dispute Settlement Body, the US has complained about (1) individuals who are no longer formally members of the Appellate Body (“AB”) continuing to adjudicate disputes; (2) non-adherence to the 90-day deadline for issuing AB reports; (3) the use of obiter dicta in AB reports; (4) the AB’s misapplication of the standard of review; (5) AB reports having precedential effect; and (6) AB interpretations and decisions having amounted to judicial overreach.

Camille Pissarro’s *Rue Saint-Honoré, Après Midi, Effet de Pluie*

On 30 April 2019, the United States District Court for the Central District of California (“DCCDC”) delivered Findings of Fact and Conclusions of Law in David Cassirer et al. v Thyssen-Bornemisza Collection Foundation (Cassirer). The case was remanded to the DCCDC by the Ninth Circuit after an appeal of the DCCDC’s first instance decision, which found in favour of Thyssen-Bornemisza Collection Foundation (TBC).

The plaintiffs, the Cassirers, sought restitution of a painting, Rue Saint-Honoré, Après Midi, Effet de Pluie (Rue Saint-Honoré), which was wrongfully dispossessed of one of their ancestors by the Nazi regime. The defendant, TBC, possessed the painting. TBC is an agency or instrumentality of the Kingdom of Spain. In precis, the DCCDC ruled that it could not order the restitution sought as TBC had acquired ownership of the painting under Spain’s laws of acquisitive prescription (the civil law equivalent of adverse possession).

The case involves both public and private international law, and it produces an instinctively unsatisfactory ruling. In doing so, it illustrates how inadequate the law is vis-à-vis the international restitution of Nazi-looted art, of which there are an estimated 650,000 pieces scattered around the world. This article discusses that aspect of the case.

The Future of International Dispute Settlement will bring together practitioners and academics to assess cutting-edge issues of international law emerging in relation to the peaceful settlement of international disputes. Speakers will examine the recent developments and future prospects for dispute settlement with regards to the practice of international courts, international criminal law, law of the sea, trade, investment, commercial arbitration and climate change.

The program is now available by clicking here.

Registration is now open at Eventbrite.

Afternoon tea will be provided, with drinks and canapés to follow.

The event will be hosted on Thursday 27 June 2019 from 1:00 pm to 6:30 pm at Luna Park, Sydney.

4.5 hours CPD are available for practitioners.