Author: Editors

Enhancing State Capacity: An Analysis of the Draft Articles on Prevention and Punishment of Crimes Against Humanity 2019 and the Attendant Consequence For State Parties – Adeyinka Adegbite

Editors Analysis, Articles

To highlight the opportunity which the Draft Articles on Prevention and Punishment of Crimes Against Humanity present for progressive development of international criminal law, Adeyinka Adegbite outlines how the Draft Articles contribute to enhanced inter-State cooperation and capacity of national legal to prevent, prosecute and punish crimes against humanity.

Background to the Draft Articles

The motivation for developing the Draft Articles on Prevention and Punishment of Crimes against Humanity (‘Draft Articles on Crimes against Humanity’) by the International Law Commission (ILC), the expert body of the United Nations (UN) with responsibility for developing and codifying international law, was an awareness of the imperative to create a single international legal instrument which provided for the incorporation of the definition of crimes against humanity in national laws; imposed obligations on States to prevent the commission of crimes against humanity; and, conferred national jurisdiction to prosecute perpetrators of crimes against humanity. The first report of the ILC Special Rapporteur for the crimes against humanity stream of work in 2015 initiated what would later become the Draft Articles on Crimes against Humanity.

The comments of the government of States, including Australia, and other UN special agencies and international non-governmental organisations enriched the body of texts aimed at developing the law on this particular category of international crimes. It is important to note that the Charters, Statutes and instruments setting up International Criminal Tribunals, namely the International Military Tribunals for Nuremberg and Tokyo and the International Criminal Tribunal for Former Yugoslavia, among others, included a description of the crimes regarded as crimes against humanity. These provisions were further developed following the entry into force in 2002 of the Rome Statute of the International Criminal Court (‘Rome Statute’).

Article 7(1), (2) and (3) of the Rome Statute set out crimes against humanity as one of the categories of international crimes within the jurisdiction of the International Criminal Court (ICC). The Rome Statute appears to be richer in the provision concerning the category of crimes against humanity when compared with the earlier instruments of International Military Tribunals (IMT), as the definition of these crimes under the Rome Statute are broader in scope. 

Further, the principle of positive complementarity, a novel provision of the Rome Statute in Article 17, lends a two-pronged approach to the prosecution and punishment of crimes against humanity. The principle was a departure from the approach the IMT instruments, which gave priority to the jurisdiction of the IMTs over national jurisdiction. In further emphasising the importance of national jurisdiction, especially where the legal and judicial structures are available and the State is willing and able to undertake such prosecution, the ICC may offer assistance to the prosecuting State to the extent that the perpetrators of these crimes are prosecuted. Whilst a State shall cooperate with the ICC under Article 93(1), Article 93(10) imposes a discretionary duty on the ICC to cooperate with a prosecuting State, stating that the ICC may, upon request, cooperate and provide assistance to a State Party. Nonetheless, the recognition given to national jurisdiction is indeed very admirable. 

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Interview with Anil Yilmaz: The Nationality of Corporate Investors under International Investment Law – Part II: A case for the real seat standard – Stephanie Triefus

Editors Analysis, Articles

In Part I of this series, Dr Anil Yilmaz and Assistant Editor Stephanie Triefus discussed how international investment treaties are being used in a way that unduly expands the reach of this controversial legal regime. This part elaborates on why existing safeguards are not sufficient, and how states should proceed with investment treaty reform to combat this issue.

ST: An ISDS case brought against Australia by Phillip Morris was unsuccessful because the tribunal found that Philip Morris’ claim was an abuse of rights – Phillip Morris Asia acquired an Australian subsidiary for the purpose of initiating arbitration under the Australia-Hong Kong BIT. Is this an example of the current system working to prevent claims that states have not consented to? What are the problems with abuse of rights arguments and other challenges to corporate identity that states have used in arbitration to combat this issue?

I’ll start by saying a few things about the Australia case. It was a very well-known case because of the tobacco measures and public health questions around it, and it was going somewhat in parallel with the Philip Morris v Uruguay case. Unlike the Uruguay case, the Australia case didn’t proceed to the merits, because Australia was successful in its objection that Philip Morris was abusing its right to invoke that investment treaty. And that was because in anticipation of the dispute, Philip Morris restructured its investment in Australia to move its holdings to Hong Kong, and that was found to be an abuse of rights in this particular case, and therefore the claim was dismissed. The tribunal didn’t consider Philip Morris genuinely to be a Hong Kong investor to be able to benefit from that investment treaty and that’s a successful outcome in this context. But it was a difficult and hard-fought decision, probably by skilled Australian counsel, and there were very particular circumstances. 

It’s very difficult to make a successful abuse of rights argument. First, you have to demonstrate that there was a lack of good faith in the acquisition of the investment, which requires you to go into the intentions of the investor at the time they acquired that corporate entity. The other question is about the timing of when the investor restructured their investment and that seems to be a condition on its own, but it also helps to demonstrate whether the investor was lacking good faith. Timing is important to demonstrate whether a dispute was already reasonably foreseeable at the time of restructuring. In this particular case, the timing of the restructuring was off: the plain packaging policy plans were already announced, and the dispute was foreseeable by Phillip Morris because Australia had already expressed its intention to regulate the tobacco industry through plain packaging. The Tribunal also looked at whether access to the investment treaty was the only or the dominant purpose of the restructuring or whether there were other legitimate reasons. In this particular instance, it was held that Philip Morris’ dominant reason for restructuring was benefitting from that investment treaty. As the timing of the restructuring was off and Philip Morris seemed to lack good faith in that restructuring, the tribunal found there was an abuse of rights. But there have been quite a few other cases where states haven’t been able to make this argument successfully because it’s quite difficult to show that an investor has restructured their investment in a certain way, only or primarily for the purpose of benefiting from investment treaty protection. And indeed, there might be other reasons for it as well, such as tax reasons. 

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Interview with Anil Yilmaz: The Nationality of Corporate Investors under International Investment Law – Part I: The trouble with treaty shopping – Stephanie Triefus

Editors Analysis, Articles 1 Comment

International investment law is ostensibly designed to protect investors from unfair treatment when they invest outside their home jurisdiction. The rationale behind such special protections is to encourage foreign direct investment, which is meant to have a positive impact on host state development and economic growth. However, it is common for corporations to engage in ‘nationality shopping’ to gain access to investor-state dispute settlement in their own jurisdiction, or in circumstances where states have not necessarily consented, under bilateral investment treaties. It is often legal for a company to channel investments through overseas shell corporations, with investment tribunals considering such arrangements to be a legitimate means for accessing protection under investment treaties. In her monograph The Nationality of Corporate Investors under International Investment Law, published in 2020 by Hart Publishing, Dr Anil Yilmaz argues that such expansive interpretations of corporate nationality are not warranted by international law and are in fact unduly expanding the reach of international investment law in ways that seriously impact its operation and the local communities affected by investment projects. 

Dr Yilmaz is a Senior Lecturer in the School of Law at the University of Essex and a co-director of the Essex Business and Human Rights Project. Her research bridges the gap between corporate law, international investment law, human rights law, and tort law, examining how these areas can and should interact so as to operationalise human rights standards in the modern business context. She is interested in reimagining business regulation to prevent adverse impacts suffered by communities and workers due to the privileges of capital embedded in the law. She has published works in leading international law journals and in edited collections on parent-subsidiary relationships in the business and human rights context, non-financial reporting, duty of care in supply chain relationships, human rights in investment contracts and the embedded inequalities in the investment treaty regime.

Dr Yilmaz joined Assistant Editor Stephanie Triefus for a conversation about her monograph and why controversial treaty protections should not be extended beyond reciprocity.

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Australian war crimes in Afghanistan: Prosecutions face an uncertain road ahead – Alexandra Fowler

Editors Analysis, Articles

It has now been six months since the Brereton Report detailed credible evidence of a series of alleged SASR war crimes in Afghanistan from 2005-2016. According to the Report, 39 Afghans had been wilfully and unlawfully killed by 25 ADF members in 23 incidents, along with two instances of cruel treatment, in circumstances where it “was or should have been plain that the person killed was a non-combatant, or hors-de-combat” (paras 15-16 of Chapter 1.01). The killings and abuse were accompanied by a damning catalogue of slips in military discipline, culture and oversight, involving the “blooding” or initiation of young soldiers, a practice of covering up deliberate killings by placing “throwdowns” on bodies to make them look like legitimate kills, sanitising operational reports to make it appear that the laws of engagement had been complied with, and a marked culture of impunity. There were other issues relating to a lack of command and control of Special Forces in theatre, and insufficient impartial and effective investigatory mechanisms (paras 322-349 of Chapter 1.01, and Chapter 3.03). Brereton recommended the cases be referred to the AFP as there was a realistic prospect of a criminal investigation obtaining sufficient information to charge the perpetrators with the war crime of murder, and/or counselling, procuring or inciting the war crime of murder (Criminal Code (Cth) ss11.2, 11.4 and 268.70), in some cases on the basis of command responsibility (Criminal Code (Cth) s268.115). For the two instances of cruel treatment, there was sufficient evidence for charges under Criminal Code (Cth) s268.72. Overall, 36 matters arising out of 23 incidents by 19 individuals were recommended for potential prosecution (para 21 of Chapter 1.01).

Since the Inquiry, the (related) Ben Roberts-Smith case has dominated media coverage. A series of suppression orders have to date prohibited public release of a range of material in Roberts-Smith’s defamation case against Nine media outlets. However, sensational reports of his alleged attempts to conceal evidence from the AFP and from the Brereton Inquiry in relation to an already ongoing war crimes investigation into his conduct, including alleged storage, altering and transmission of classified Defence Department footage and NATO information, have rightly drawn much attention. Arguments for Nine will reportedly rely on the defence of truth, and link to allegations contained in the Brereton Report. The defamation case is scheduled to commence in the Federal Court on 7 June and will be closely followed. 

Although the regular drip of reporting on Roberts-Smith has given Australians a taste of some of the issues that may arise if cases head to court, in general the issue of prosecutions for other alleged SASR war crimes has largely fallen off the public radar. So, six months since the Brereton Report shocked Australia, it is worth examining what the potential for these prosecutions really is. 

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Regulating cross-border information flow: the proposed Chinese Personal Information Protection Law – Jeanne Huang

Editors Analysis, Articles

An examination of the People’s Republic of China draft Personal Information Protection Law published for consultation on 30 April 2021 reveals that its regulation of cross-border data transfer will have important consequences for individuals, businesses and judicial assistance.

To better protect personal information and develop the digital economy, China is taking action to enact its Personal Information Protection Law. On 30 April 2021, the second deliberation draft of the Personal Information Protection Law (hereinafter ‘Proposed Chinese Personal Information Protection Law’) was published by the Standing Committee of the National People’s Congress for public opinion (official version and unofficial English translation available). Regulating cross-border information flow is a highlight of the Proposed Chinese Personal Information Protection Law. Five important issues deserve attention.

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Event Re-Cap: Developments in cyber and international law at the UN – Josephine Dooley

Editors Events, ILA Updates

For the Australian National University’s Centre for International and Public Law (CIPL) Seminar in April, key members of Australia’s delegation to the United Nations (UN) Open-ended Working Group on developments in the field of information and telecommunications in the context of international security (OEWG) discussed latest developments in cyber and international law at the UN.

The third and final substantive OEWG session was held in March. Importantly, on 12 March 2021, 193 States adopted a consensus report containing recommendations to address cyber threats and ‘promote an open, secure, stable, accessible and peaceful’ international cyber environment (OEWG, Final Substantive Report UN Doc A/AC.290/2021/CRP.2, para 7 (‘OEWG Final Report’). The OEWG Final Report has now been endorsed by consensus by the UN General Assembly (UNGA). As part of that effort to improve peace and security in the cyber environment, the OEWG Final Report includes recommendations concerning the development of how international law applies in cyberspace, that States continue to:

  • Inform the UN Secretary-General, and through other appropriate avenues, of their national views and practices on how international law applies to states’ conduct in cyberspace  (Recommendation 38),
  • Support, in a neutral and objective manner, capacity-building of other States in developing their national views and practices, to contribute to building common understandings of and consensus on how international law applies in cyberspace (Recommendation 39), and
  • Participate in future UN processes on international law and cyber as a key step to clarify and further develop common understandings on the issue (Recommendation 40).

At the talk on 27 April 2021, participants were able to learn first-hand from key Australian representatives in the OEWG process what has been Australia’s role in the recognition and elaboration of the application of international law to cyberspace so far, and Australia’s perspective on the implications of the OEWG Final Report going forward. The Panel consisted of: 

  • Johanna Weaver, Special Adviser to Australia’s Cyber Ambassador and Head of Delegation on UN Cyber Processes,
  • Harry Aitken, Assistant Director, International Law Branch, Department of Foreign Affairs and Trade (DFAT),
  • Tess Kluckow, Senior Legal Officer, Office of International Law, Attorney-General’s Department (AGD), and 
  • Wing Commander Craig Deveney, Deputy Director, Operations and International Law Military Branch (Defence Legal).

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Event: Book Launch of “The UN Commission on Human Rights: ‘A Very Great Enterprise'”, 2 June 2021

Editors Events, ILA Updates

The UN Human Rights Council faces a critical phase in its development. Between 2021 and 2026, the Assembly is due to review its status, with a view to determining, to quote Kofi Annan at its inauguration in 2006, whether its work has “so clearly established [its] authority that there would be a general will to amend the Charter, and to elevate it to the status of a Principal Organ of the United Nations”.

A new book by former Secretary to the UN Commission on Human Rights John Pace is intended to aid the process of review by furnishing, in one volume, the entire record of the Commission and the Council since the inception of UN work in human rights in 1946. The UN Commission on Human Rights: ‘A Very Great Enterprise’ was published by Oxford University Press in 2020.

In the course of a career spanning more than 50 years in the field of human rights, John Pace has worked in a wide range of human rights activities at the international and regional level. He has headed several sectors of the human rights programme and was Secretary to the Commission on Human Rights (1978 to 1994) and Coordinator of the Vienna World Conference on Human Rights (1991 to 1993). He has a long association with UNSW, where he has taught and headed the Australian Centre for Human Rights in the early 2000s. He is currently Senior Visiting Fellow in the Faculty of Law and Justice and is a member of the Board of Directors of the Diplomacy Training Programme.

Former High Court Justice the Hon. Justice Michael Kirby AC CMG and Pro Vice-Chancellor Indigenous UNSW and Professor of Law Megan Davis will join the author in conversation about his new book, moderated by Director of the Australian Human Rights Institute Professor Justine Nolan.

This event will be held online on 2 June 2021 at 9:00 am to 10:00 am CEST. Registration for this event is via Eventbrite and is free to all attendees. Event attendees are eligible for a 30% discount on purchase of the book.

This event is co-hosted by the Australian Human Rights Institute and the International Law Association Australia.

COVAX, Global Health Governance and the Failure of Multilateralism – Rebecca Brown

Editors Analysis, Articles

The COVID-19 pandemic has been a breakpoint for global health governance, necessitating unprecedented cooperation worldwide. However, the success of global initiatives has been hampered by lack of state interest. This piece investigates why one such initiative, the COVID19 Vaccine Global Access Facility (COVAX), was abandoned by its high-income state supporters, setting out its vision, development and failings. In doing so, this piece seeks to outline issues within the Global North’s approach to multilateral health governance more broadly.

In July 2020, when the development of an effective vaccine against COVID-19 was in sight, assuring timely access to this vaccine became the essential instrument in the Global North’s political toolbox. The UK secured a ‘portfolio’ of vaccines through privately contracting with a number of pharmaceutical manufacturers, while Australian Prime Minister Scott Morrison announced an agreement with AstraZeneca, before this in fact had been finalised. Now, in May 2021, a 40-year-old may be vaccinated tomorrow, by the end of the year, in some years, or has already been vaccinated – depending on their country of residence. Such disparity in access to vaccines is often attributed to the inadequacy of governmental agreements with private companies. However, this analysis presupposes contemporary knowledge of which vaccines indeed proved effective, and glosses over broader issues of vaccine inequity entrenched by global power differentials and healthcare’s commercialisation. 

To that end, the COVID-19 Vaccine Global Access Facility (COVAX) appeared a promising solution. Initially floated at the extraordinary G20 meeting in March 2020, and launched by a number of state leaders the following month, COVAX swore to maximise access to vaccines, ensuring populations in all participant countries could soon receive a vaccine. Yet, COVAX remains underfunded, and vaccine nationalism – with states competing to secure doses from manufacturers – stymied its ability to acquire and distribute vaccines. COVAX, set out as a multilateral solution to the COVID-19 pandemic, has been reduced to a vessel for financial contributions to lower-income states; its failure represents a broader failure of collective action, and a continuation of neo-colonialist attitudes towards health governance.

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Interview with Nicolás M. Perrone: Investment Treaties and the Legal Imagination – Part II: More than winning and losing

Editors Interviews, Opinion 1 Comment

 In part I of this series, Dr Nicolás Perrone and ILA Reporter Assistant Editor Stephanie Triefus discussed the meaning of the legal imagination. This part elaborates on the content of Dr Perrone’s book and how and why the debate around how we talk about international investment law should evolve. 

ST: In your book you discuss the Philip Morris v Uruguay arbitration, which is similar to the claim brought against Australia by Philip Morris via the Australia-Hong Kong BIT. The current Australian government is not concerned about ISDS because Australia ‘won’ this arbitration, and so continues to favour ISDS in its review of its investment agreements. What does the reasoning in these awards tell us (or conceal) about how investment arbitrators conceive of the state’s right to regulate? 

NP: There is a document from the Cologne Society from around 1956 or 1957 that was submitted to the World Bank, that was saying that state regulation is very dangerous, and we should be careful about it. But then when more lawyers got involved, they were more nuanced, saying that of course the state needs to regulate, regulation is totally fine – the American Bar Association was saying that certain regulations are fine, but other regulations go too far. Something that they were very interested in back then was to make it impossible for Global South governments to expropriate when a provision prohibiting nationalisation was included in concession contracts. So they wanted to interpret a contract in a way that could trump states’ right to expropriate, even if that right was part of customary international law and enshrined in the General Assembly Resolution on Permanent Sovereignty over Natural Resources. So it’s not always obvious which regulation is the one that they want to prevent or make more difficult to implement. It depends on corporate needs, existing public policy and, of course, lawyers’ creativity.

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Interview with Nicolás M. Perrone: Investment Treaties and the Legal Imagination – Part I: How we imagine international investment law

Editors Interviews, Opinion

International investment law has been facing an increasing amount of negative publicity of late. Its detractors maintain that investment treaties constrain state regulatory space, affecting human rights and environmental measures, and exclude local communities from participating in decisions affecting them. On the other hand, proponents of investment treaties claim that they are necessary to facilitate development and that investment arbitration strikes a fair balance between investor rights and the public interest. In his monograph Investment Treaties and the Legal Imagination, recently published by Oxford University Press, Dr Nicolás Perrone contributes a historical perspective to this debate. Under the international investment law regime, foreign investors enjoy a privileged position; they have strongly enforceable rights, but no obligations. Perrone shows that the unusual status of foreign investors in international law is no accident, but rather the result of a “world-making project realized by a coalition of business leaders, bankers, and their lawyers in the 1950s and 1960s”. This world-making project, which is still alive and well in the legal imagination of investment lawmakers and practitioners today, maintains the power of corporate actors while silencing and making invisible those who are affected by investment projects.  

Dr Perrone is a Research Associate Professor at Universidad Andrés Bello, Chile, and has previously taught at Durham University and Universidad Externado de Colombia. Dr Perrone has been Visiting Professor at Universidad Nacional de San Martín, the International University College of Turin, and Università del Piemonte Orientale, a faculty member of the Institute for Global Law and Policy (Harvard Law School) and a Visiting Lecturer at Xi’an Jiaotong School of Law. Dr Perrone has also consulted for the OECD and worked as a legal fellow for UNCTAD. 

Dr Perrone joined Assistant Editor Stephanie Triefus for a conversation about his monograph and how academics and policymakers should reflect on the legal imagination of investment law as they engage in reform of the international investment law regime. 

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