ILA Committee Update: International Commercial Arbitration Committee — Judith Levine

Can users of international commercial arbitration safely assume the process is confidential?  Do international arbitrators possess ‘inherent powers’ beyond what is specified in the arbitral rules?  These are two topics recently examined by the International Law Association’s (ILA) International Commercial Arbitration Committee (Committee).

As noted in the Editors’ welcome entry, one aim of the ILA Reporter is to provide updates on the work and progress of the ILA’s international committees.

The International Commercial Arbitration Committee

International arbitration has been a subject of interest for the ILA since as early as 1895.  The current International Commercial Arbitration Committee is composed of 53 members from over 30 countries, including professors, judges, arbitrators, private practitioners and staff of international organisations.

The Committee meets in different locations around the world, approximately three times a year. The Australian Branch has two members — Hague-based Judith Levine and Sydney-based Damian Sturzaker and an alternate, Jason Clapham.  Having members in both hemispheres helps ensure that an Australian representative is present at each meeting.  There are other ways for ILA Australia branch members to participate in the Committee’s work. For example, for the recent project on confidentiality, young lawyers from the ILA Victoria Chapter helped compile information and draft a submission on Australian case law and legislation, which was used for the Committee’s final report.

The cumulated reports of the Committee form a valuable body of work and contain recommendations based on experience in national jurisdictions and international practice.  Blog readers are encouraged to look back at reports of the past decade, including on ‘Public Policy as a Bar to Enforcement of International Arbitral Awards‘ (New Delhi Conference, 2002); ‘Res Judicata and International Arbitration‘ (Berlin Conference, 2004); and ‘Lis Pidens and Arbitration‘ (Toronto Conference, 2006).  This post will focus on the two most recent topics examined by the Committee: ‘Confidentiality in International Commercial Arbitration‘ (The Hague Conference, 2010); and ‘Inherent and Implied Powers of Arbitral Tribunals‘ (Washington DC Conference, 2014).

Recent Committee Work: Confidentiality

The Committee’s last report surveys current law and practice to test the assumption commonly held by parties that their international arbitration proceedings are confidential.  The report identifies problems that may arise as a result of inconsistent confidentiality rules, sets out findings and offers recommendations, including two model clauses.  The Committee decided to limit the scope of its report to international commercial arbitration, consciously excluding discussion of confidentiality as it relates to investor-State arbitration.  The investor-State context was seen as giving rise to distinct policy concerns that may warrant different approaches and solutions that have since been the subject of a separate set of rules on transparency promulgated by UNCITRAL.

The Committee found that confidentiality is an important feature of international commercial arbitration but that many users incorrectly assume that arbitral proceedings are inherently confidential. In fact, many national laws and arbitral rules do not currently provide for confidentiality and those that do vary in their approach and scope. The report notes that arbitration confidentiality obligations bind the parties to the dispute and their agents and representatives, as well as arbitrators, arbitral institutions and tribunal secretaries, but not others involved in a case (like witnesses). Where a tribunal has jurisdiction over an arbitral confidentiality dispute, it may use a range of remedial powers, such as ordering injunctive or declaratory relief, awarding damages, barring the introduction of evidence procured in breach of confidentiality, or treating the breach as a breach of the underlying contract.

The Committee recommended that:

  1. The best way safely to ensure confidentiality (or non-confidentiality) across many jurisdictions is to provide for it by express agreement (prior to or during the arbitration);
  2. In the absence of contractual provisions on confidentiality, arbitrators should consider drawing the attention of the parties to confidentiality and, if appropriate, addressing the issue in terms of reference or a procedural order at the outset of proceedings;
  3. Express agreement to confidentiality should specify the scope, extent, duration of the confidentiality obligation, the exceptions to it, and how it may be enforced;
  4. Given that confidentiality provisions do not normally impose obligations on third parties involved in the arbitral process(like witnesses), it should be incumbent upon the participant in the arbitration who brings the third party into the proceedings to make reasonable efforts to obtain their express agreement to preserve confidentiality; and
  5. Reasonable exceptions to an obligation of confidentiality may include:
    • prosecuting or defending the arbitration or proceedings related to it (e.g. for enforcement/annulment);
    • responding to a compulsory order or request for information of a governmental or regulatory body;
    • making a disclosure required by law or by the rules of a securities exchange; or
    • seeking legal, accounting or other professional services, or satisfying information requests of potential acquirers, investors or lenders.

The topic currently under consideration by the Committee is ‘Implied and Inherent Powers of Arbitral Tribunals’.  Unlike the confidentiality project, this topic was not limited to commercial arbitration and, in fact, many of the examples in the report were drawn from investment treaty disputes.  As with the confidentiality project, Australian members actively participated in discussions and contributed research papers and sources that are referenced in the report.

The report introduces the topic by noting that party agreement is the foundation of every arbitration, and poses the following questions:

[A]rbitrators are sometimes confronted with situations that are not addressed by either the parties’ arbitration agreement or the applicable curial law and rules.  What, if any, powers do the arbitrators have to deal with those situations?  What is the source of those powers?  What is the limit of them?

The report reviews the common law origins of inherent and implied powers and discusses various situations where such powers may be relevant to international commercial arbitration, including:

  • Powers relating to procedure (e.g. determining the seat, bifurcating proceedings, deciding on evidentiary matters, permitting non-party participation);
  • Powers to issue interim relief (e.g. to seek a stay of court proceedings, to stop criminal proceedings, to stop disclosure of documents, and to take steps to prevent the exacerbation of the dispute or to maintain the integrity of the arbitral proceedings);
  • Powers related to decision-making (e.g. to deal with new objections to jurisdiction, to order summary dismissal, to award interest);
  • Powers to safeguard against misconduct and perceived improprieties (e.g. to deal with vexatious claims or bad faith conduct, to allocate costs as a sanction, to disqualify counsel); and
  • Powers of revision (e.g. to modify a decision in light of new evidence).

The Committee conceptually divides the sources of power into three categories:

  • powers implied by textual sources (the parties’ agreement, applicable rules and law governing the arbitration);
  • discretionary powers of procedure (stemming from the right to oversee proceedings); and
  • inherent powers necessary to preserve jurisdiction (stemming from the duty of arbitrators to protect the integrity of proceedings and render an enforceable award).

While implied and discretionary powers remain subordinate to party agreement, inherent powers cannot be so restricted, and therefore, according to the Committee, ‘should be used narrowly, proportionately and only so far as necessary to accomplish the exigencies of the particular situation’.

The Committee’s recommendations are targeted at:

  • Parties — who should understand that tribunals have inherent and implied powers and realise that, within limits, they may by agreement confirm, expand or constrict arbitral powers;
  • Arbitrators — who should always first look to the arbitration agreement, rules governing proceedings and relevant law to assess the scope of their authority in any given situation. Only if those sources do not adequately resolve the issue, should they consider whether to act on the basis of implied, discretionary, or inherent authority (in that order). Before exercising such powers, arbitrators should elicit the parties’ views and assistance to fashion the most appropriate solution, taking into account their legal background and the law governing the arbitration. Arbitrators should explain their reasoning for exercising implied, discretionary or inherent powers, which may help the award to withstand review at enforcement or actions to set aside proceedings; and
  • Courts — which should appreciate that arbitrators often have some power to act beyond the explicit boundaries set by the laws and rules governing an arbitration.

Future Committee Work?

As noted on the ILA website, the Inherent Powers report will be tabled for finalisation at the 2016 conference in Johannesburg.  Future topics for the committee are being considered and suggestions are welcome to be sent to: jlevine@pca-cpa.org.

Judith Levine is Senior Legal Counsel at the Permanent Court of Arbitration in The Hague (PCA), where her duties include serving as Registrar in the Philippines v China UNCLOS arbitration. She is a member of the Board of Directors of the Australian Centre for International Commercial Arbitration (ACICA). Neither the views expressed in this blog entry nor the ILA Committee Reports are attributable to the PCA or ACICA.

Life as a UN Special Rapporteur – Professor Surya Subedi OBE

On 5 May 2015, Professor Surya Subedi OBE delivered a speech at the University of Leeds on his time as UN Special Rapporteur for Human Rights in Cambodia from 2009 to 2015.  Professor Subedi is Vice-President of the ILA Nepalese Branch and Member of the ILA British Branch.

The lecture is titled ‘Life as a UN Special Rapporteur’ and the ILA Reporter is proud to make available a copy to its readers. To access the speech, please click here.

The life of a Special Rapporteur is described by Professor Subedi as that of ‘an international diplomat, a human rights activist, a human-rights law academic, and a government adviser – simultaneously’ (p. 38). The speech is an insightful and entertaining story of what it means to juggle these ‘hats’ at the same time. 

Professor Subedi’s role took some interesting turns during his time in office. At one point, he became the de facto mediator between the Cambodian government and opposition during the political stalemate following disputed 2013 elections.  At other times, he operated as a government critic and was very nearly declared persona non-grata by Cambodian authorities. Whilst such status is apparently something of a ‘badge of honour’ in the international human rights community, Professor Subedi says that he is happy enough with his OBE from Her Majesty the Queen of the UK.

Professor Subedi’s style as Special Rapporteur was characterised by robust critique layered in soft diplomatic language.   Indeed his style earned him the dubious title of ‘old whisky in a new bottle’ from the Cambodian Prime Minister. In the Editors’ views, coming from the man the subject of the criticism, that’s a pretty good nip.

 

A genocidal act: The forcible transfer of Bosnian Muslims from Srebrenica (with reference to Krstic and Jelesic) – Sophocles Kitharidis

The term genocide is commonly seen within political and legal dialogues as describing atrocities of great ‘diversity, magnitude, and character’ (David Scheffer, ‘Genocide Atrocity Crimes‘ (2006) 1(3) Genocide Studies International 229).  In the Convention on the Prevention and Punishment of the Crime of Genocide, genocide attaches to specific acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ (article 2).

Referring to the forcible transfer of Bosnian Muslims from Srebrenica, the International Criminal Tribunal for the former Yugoslavia (ICTY) held in the Prosecutor v Krstic (Krstic) that ‘an intent to destroy only part of the group must nevertheless concern a substantial part thereof, either numerically or qualitatively’ (at [6]–[8]).  In addition, in Prosecutor v Jelisic (Jelisic) the ICTY Trial Chamber argued that ‘it is widely acknowledged that the intention to destroy must target at least a substantial part of the group’ (at [82]).

Examination of the meaning of ‘intent’, ‘substantial part’ and ‘destruction of part of a group’ is crucial to deconstructing the act of genocide within the context of forcible transfer.  This post will seek to contribute to this area by exploring the act of genocide in Bosnia and Herzegovina and examining the ICTY’s characterisation of the forcible transfer of Bosnian Muslims from Srebenica in Krstic and Jelesic.

Genocide, the ICJ and the development of a ‘Greater Serbia’

In examining the concept of genocide and the intention of the Serbian leadership during the 1992 mass killings in the former Yugoslavia in The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Genocide Case), the International Court of Justice (ICJ) held that Bosnia’s argument

does not come to terms with the fact that an essential motive of much of the Bosnian Serb leadership — to create a larger Serb State, by a war of conquest if necessary — did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion (at [372]).

This statement is concerning because it seems to suggest that forcible transfer is not a relevant consideration in determining whether or not genocide has taken place.  For this reason, among others, the ICJ’s acquittal of Serbia of the act of genocide has proved controversial (see, eg, Katherine Goldsmith, ‘The issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-based Approach’ (2010) 5(3) Genocide Studies and Prevention 238).

Vice President al-Khasawneh J issued a dissenting opinion in the Genocide Case, stating:

[c]oupled with population transfers, what other inference is there to draw from the overwhelming evidence of massive killings systematically targeting the Bosnian Muslims than genocidal intent? If the only objective was to move the Muslim population, and the Court is willing to assume that the Bosnian Serbs did not only that which is strictly necessary in order to achieve this objective, then what to make of the mass murder? If the Court cannot ignore that population transfer was one way of achieving the Strategic Goals, then why should it ignore that, in fact, the Bosnian Serbs used this method as one of many — including massive killings of members of the protected group (at [41]).

The destruction of a ‘substantial part’ of ‘part of a group’

As described above, genocide is the commission of a ‘prohibited act’ ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.  The prohibited acts are set out in article 2  and include, for example, killing or causing serious bodily or mental harm to members of the group.

The crime of genocide is  somewhat unique as it requires that two forms of mens rea or intent be established.  The first is that a person must commit a prohibited act with intent.  The second layer of intent is genocidal intent or dolus specialis, which is the intent to destroy the group. As provided in Prosecutor v Akayesu, the

[s]pecial intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged … [and] the crime of genocide lies in the intent to destroy, in whole or in part, a national, ethnical, racial or religious group (at [498]).

In Jelisic, the ICTY discussed two ways in which genocidal intent may be established:

[i]t may consist of desiring the extermination of a large number of members of the group in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected [i.e. leadership of the group] for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group ‘selectively’ (at [82]).

The Trial Chamber in Jelisic also ruled that the act of genocide may be conducted within a ‘limited geographic zone … limited to the size of a region or … a municipality’ (at [83]). This was revisited in Krstic, where the Trial Chamber  resolved that

the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue (emphasis added) (at [590]).

‘Part’ must be interpreted as a large or substantial part of the group at hand, and with the ability to have a significant impact on the entire group (at [43]). This test has been reformulated thus:

  • in Jelisic as ‘targeting at least a substantial part of the group’; and
  • in Prosecutor v Sikirica where the court found that there must exist intention to destroy a large number of a group that is relative to the entire population of that group, and as such, negatively impact the survival of that group.

How then does forcible transfer tie in with establishing the existence of intent to destroy whole or part of a group?

With regard to the situation in Srebrenica, the Court in Krstic held that whilst the act of forcible transfer is not itself a genocidal act, it may be taken into account as evidence of the existence of genocidal intent (at [33]).  Shahbuddeen J, in his partially dissenting opinion argued that

standing alone, forcible transfer is not genocide. But in this case the transfer did not stand alone, and that indeed is the basis on which the Appeals Chamber rejected the defence argument that it showed that there was no genocide. It was part — an integral part — of one single scheme to commit genocide, involving killings, forcible transfer and destruction of homes. In particular, it showed that the intent with which the killings were done was indeed to destroy the Srebrenica part of the Bosnian Muslim group. (at [35])

A more conservative approach was adopted by the Trial Chamber of the ICTY in Prosecutor v Brdjanin (Brdjanin).  The Court agreed with the view expressed in Kristic that while the act of forcible transfer does not itself constitute genocide, it does not give reason to prevent the use of this act being relied on as evidence to demonstrate intent.  However, the Trial Chamber qualified this rule by stipulating that it is not appropriate to use forcible transfer as substantial evidence of the actual destruction of a particular group, ‘since that would in effect mean the consideration, as it were through the back door, of forcible displacement as an underlying act’ (at [975)]).

In Brdjanin ,the Court was ultimately not satisfied that the forcible transfers of Bosnian Muslims and Bosnian Croats gave rise to specific intent.  It stated that

the existence of the specific intent required for the crime of genocide must be supported by the factual matrix.  The extremely high number of Bosnian Muslim and Bosnian Croat men, women and children were forcibly displaced from [Autonomous Region of Krajina] … particularly when compared to the number of Bosnian Muslims and Bosnian Croats subjected to the acts enumerated in Article 2(4)(a), (b) and (c) [of the Genocide Convention], does not support the conclusion that the intent to destroy the groups in part, as opposed to the intent to forcibly displace them, is the only reasonable inference that may be drawn from the evidence (at [976]).

Conclusion

It is indisputable that establishing the crime of genocide is difficult.  This is due, in large part, to the difficulty of proving that genocidal intent was present in the mind of the perpetrators.  The act of forcible transfer — despite not being a ‘prohibited act’ — may assist a court to determine that there existed genocidal intent.  In certain situations, the forced transfer of persons belies a wider strategy to bring about the physical destruction of a race by removing a people from a region and thereby eliminating the residual possibility that the group could be reconstituted in the area.

Sophocles Kitharidis is a public international law adviser and consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victoria) and he holds a Master of Laws in Public International Law from the University of Melbourne. 

Export of legal services in Asian Markets: the Indian context — Molina Asthana

Introduction

Asialink Business’ latest research report — Australia’s Jobs Future: The rise of Asia and the services opportunity — produced in collaboration with ANZ and PwC, demonstrates that by 2030, services can become Australia’s number one export to Asia in terms of total value added, supporting a million Australian jobs in the process.

The export of professional services, including legal services, are also expected to rise. However, there are barriers faced by legal service providers who wish to operate in Asia, including nationality and residency requirements, limited recognition of Australian qualifications and limits on foreign investment in local firms.

Australia–China Free Trade Agreement

The conclusion of a comprehensive free trade agreement (FTA) with China (ChAFTA) is likely to lead to a surge in the export of services (although the final FTA is yet to be signed). China has offered Australia the best services commitments it has ever provided in an FTA (with the exception of China’s agreements with its Special Administrative Regions — Hong Kong and Macau). Most importantly, they include new or significantly improved market access for Australian services, including legal services (see the factsheet prepared by DFAT on ChAFTA’s key outcomes). Australian law firms will be able to establish commercial associations with Chinese law firms in the Shanghai Free Trade Zone. This will allow firms to offer Australian, Chinese and international legal services with a commercial presence in China, without restrictions on the location of clients.

ChAFTA also includes a framework to advance mutual recognition of services qualifications and to support mutual recognition initiatives by professional bodies in Australia and China. This is not the case with other Asian countries, where barriers continue to exist and hinder negotiations for the conclusion of FTAs.

Relationship between the Australian and Indian legal sectors

Through my own involvement in building the Australian–Indian relationship in the legal sector, I am aware that there is an interest on the part of law firms, universities and judiciaries in both countries to develop deeper ties. However, international law firms and practitioners are faced with huge barriers if they intend to set up business or practice in India.

With the growing trade between the countries, and India becoming an important international market, it will be necessary to have lawyers with expertise in both jurisdictions or for clients to have easy access to experts in both jurisdictions.

Because Australia and India are both common law countries, it should be easier for lawyers to transfer their skills across jurisdictions and make positive contributions to each’s legal systems.

The legal market in Australia is comparatively more open. However, from the perspective of the Indian legal sector, that comparative openness is largely academic; it is unlikely that Indian legal firms would be in a commercial or strategic position to enter the Australian market. There are no restrictions on establishment of foreign firms in Australia and foreign lawyers are allowed to work in Australian firms, provided they do not give advice on Australian law or profess to hold local qualifications. Australia’s accreditation requirements for foreign practitioners are still quite onerous, with up to 12 subjects and a year of practical training required before being permitted to practice in an Australian jurisdiction (See the Law Council of Australia’s publication on the admission of foreign practitioners).

On the other hand, the Indian market is much more restrictive: neither joint ventures nor foreign direct investment (FDI) in the legal sector is permitted. Foreign law firms have to largely rely on fly-in-fly-out arrangements and work with Indian law firms. In addition, foreign firms are not permitted to represent local clients in India. The accreditation requirements for foreign practitioners wishing to work in India can also be quite onerous (see this summary of the qualification process prepared by the International Bar Association).

Given these restrictions, it is imperative that wide-ranging reform be undertaken to open up the Indian legal market so that foreign firms can establish local offices and foreign lawyers can practice within India. There is also a continuing need for mutual recognition of academic legal qualifications that allows for the free movement of legal experts.

Towards deeper Australia–India legal ties

The Indian Department of Commerce has recommended a two-phase road map for the liberalisation of the legal professions. The reforms are discussed in detail here.

The first phase would include domestic regulatory reforms, implemented simultaneously with the opening of international arbitration and mediation services in foreign investment law and international law practices. Phase Two would include opening up non-litigious and non-representational services in Indian law.

However, there remains strict and ongoing opposition to FDI and third party ownership of law firms. Further, reservations continue against foreign firms who have third party non-lawyer funding from entering the Indian legal market. There is also hesitancy in respect of multi-disciplinary practices from entering the legal sector, including the ‘Big Four’ accounting firms.

The issue of reciprocal access for Indian lawyers is to be clarified at a later date.

Approval has been given for the implementation of the LLP structure in India, as well as permission for law firms to issue brochures, open websites and access bank finance. An increase in professional indemnity limits has been agreed to in-principle by representative bodies of the Indian Bar.

Deeper ties between would also be fostered if lawyer had the ability to go for internships or secondments at law firms in the other country. Thankfully, the road map also seeks to address this issue.

Despite these recommendations a lot remains to be done before it can be said that the Indian legal market is ‘open for business’. The Department of Foreign Affairs and Trade (DFAT) is working on finalising an FTA between Australia and India and the legal sector is one of the areas that it will address. To support this process, I have made a formal submission to DFAT suggesting a collaborative approach be adopted and that this be based on professional gains, academic gains, sharing of judicial advancements and commonality of legal systems. My submission will be available on the DFAT website shortly and this post will be updated to include the link when it is live.

Molina Asthana is a Principal Solicitor with the Victorian Government Solicitor’s Office. She is the President of the Victorian Chapter of the International Law Association, Chair of the International Law Section of the Law Institute of Victoria and Treasurer of the Asian Australian Lawyer’s Association. She has significant experience in the Indian jurisdiction.

Case Note: Application of the Convention on the Prevention and Punishment of Genocide – Sarah Fitzgerald

Introduction

In February, the International Court of Justice handed down its decision in Application of the Convention on the Prevention and Punishment of Genocide (Croatia v Serbia) and concluded that Croatia and Serbia did not commit genocide during the events of 1991–95 after the break up of the Socialist Federal Republic of Yugoslavia (SFRY). The proceedings were brought by the Republic of Croatia in 1999, with Serbia filing a counter-claim in 2010, resulting in a 16 year court case and a lengthy judgement (with an outcome considered by one commentator as virtually inevitable) that ultimately dismissed both parties claims of genocide. Whilst many commentators question the point of the case (neither Serbia and Croatia wanted to withdraw due to political pressure) and lawyers on both sides privately expressed little expectation of winning prior to judgment, the decision does provide some interesting comments on the application of the Genocide Convention and is a reminder of the narrowness of the legal definition of genocide.

History

After the break up of the SFRY, approximately 20,000 people are thought to have died and millions displaced, during the 1991–95 conflict. The International Criminal Tribunal for the former Yugoslavia (ICTY) has not charged any former leaders from Serbia or Croatia with genocide. It has previously ruled that genocide occurred in Bosnia at Srebrenica (where 8,000 Bosnians were killed over a number of days), but found that Serbia was guilty of failing to prevent genocide and punish the perpetrators.

Notable legal arguments

The claim was brought under the Genocide Convention, and the Court found that the crime of genocide consists of the actus reus (physical element) and mens rea (mental element) which must constitute dolus specialis (specific intent). Regarding intent, the Court stated that

‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’ is the essential characteristic of genocide, which distinguishes it from other serious crimes.

It is regarded as a dolus specialis, that is to say a specific intent, which, in order for genocide to be established, must be present in addition to the intent required for each of the individual acts involved. (at paragraph 132)

Croatia argued that its attacks were not indiscriminate and did not violate international law. Serbia argued that even if attacks had been conducted in compliance with international humanitarian law, they could still constitute the actus reus of genocide.  The Court however, stated that they would not ‘rule, in general or abstract terms, on the relationship between the Convention and international humanitarian law’ (at paragraph 153) and held that they did not have the power to determine disputes relating to obligations under customary international law (or international humanitarian law or international human rights law).

The Court considered Croatia’s claim and found that members of the ethnic group (in its pleadings Croatia defined the group as the Croat national or ethnical group on Croatian territory not contested by Serbia) had been killed by or suffered serious mental or bodily harm from Serb forces, constituting the actus reus element.  Other claims put forward by Croatia, such as deprivation of food and medical care, were not established by Croatia and therefore did not constitute the actus reus element.

The Court found that members of the Serbian group had been killed or suffered serious mental or bodily harm, also constituting the actus reus element. However, other claims put forward by Serbia of looting and the destruction of property, did not constitute the actus reus element.

Ultimately, dolus specialis was missing from both parties’ claims. The Court said at paragraph 440 that such intent must be ‘the only reasonable inference that can be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in part, the Croat group’. This ‘only reasonable inference’ requirement sets a high bar, and the Court found that Serbia’s assault on Vukovar was to expel the Croats, not destroy, and Croatia’s expulsion of Serbs in Krajina was also missing the specific intent to destroy.

Serbia also put forward an argument about ICTY case law, contending that decisions by the Appeals Chamber of the ICTY should not be given more weight than the Trial Chamber’s. Serbia used the Gotovina case as an example: the Trial Chamber was unanimous in their conviction, but the Appeals Chamber acquitted by a majority of three to two, meaning that a majority across the Gotovina case judged Croatian forces guilty. Unsurprisingly, the Court rejected Serbia’s argument and found at paragraph 471 that they must give greater weight to the Appeals Chamber Judgement, whilst ‘ultimately retaining the power to decide the issues before it on the facts and the law’.

The Court also discussed the weight to be given to charges of the ICTY. Serbia considered that the Court should accord it some degree of probative value, but Croatia said that as the Prosecutor has discretion to determine what charges to bring, that does not mean that there is no evidence for the existence of a different charge.  The Court did state however that they could not

fail to note that the indictment in the case of the highest ranking defendant of all, former President Milosevic, did include charges of genocide in relation to the conflict in Bosnia and Herzegovina, whereas no such charges were brought in the part of the indictment concerned with the hostilities in Croatia. (at paragraph 187)

Dissent

Judge Trindade’s dissent (which was almost as long as the judgment itself, and concluded with a quadragesimus quintus point summary) should be noted, as he largely used the principle of humanity as a basis for arguing that the acts constituted genocide. There is a detailed analysis by Professor Dov Jacobs of that dissent here, which notes the irony of using ‘facts and values’ to conclude that genocide occurred, when ‘values’ and ‘conscience’ are used by many as justification for genocide.

Future relations

The judgment cannot be appealed and the Court’s final statement at paragraph 523 encourages ‘the Parties to continue their co-operation with a view to offering appropriate reparation to the victims of such violations, thus consolidating peace and stability to in the region’. Croatia became a member of the European Union in 2013 and now supports Serbia’s application for membership. However, one obstacle to Serbia’s application is the resolution of wartime issues, including the extradition case of Australian citizen Daniel Snedden, wanted in Croatia for crimes committed during 1991–93.

High Court the final avenue for Australian war crimes suspect Daniel Snedden

A former ICTY prosecution witness against the late Serbian President Slobodan Milosevic, Daniel Snedden (also known as Dragan Vasiljkovic) is wanted by Croatian authorities on charges of three war crimes offences alleged to have occurred during his time commanding a ‘special purpose’ Serbian paramilitary unit between 1991 and 1993. Mr Snedden is alleged to have commanded troops who tortured and killed prisoners of war and to have commanded an assault where civilians were killed.

Mr Snedden has been held in Australia and has challenged his extradition for over eight years, with the Federal Court dismissing the latest appeal. Mr Snedden’s lawyers are filing an application to the High Court to review procedural fairness and the Minister’s interpretation of the Geneva Conventions. Mr Snedden’s lawyer, Dan Mori (who previously represented David Hicks), said that his main concern is that Mr Snedden will not be protected by the Geneva Convention upon return to Croatia. Mr Mori has previously said that he was intrigued by Mr Snedden’s case

because it raises issues about the fairness of having an extradition process that does not require the requesting country to provide any evidence. So, based on a 15-page document, someone has been locked up for almost eight years.

The High Court application is not likely to be determined for a number of months.

Sarah Fitzgerald is a solicitor at an international law firm in Sydney. She has previously interned at the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia.

A Reply to a Reply: In Defense of Dworkin’s New Theory of International Law – Dan Svantesson

Background

The late Ronald Dworkin requires no introduction; few, if any, contemporary law scholars have so profoundly influenced legal thinking.

Here, I will focus on the gift Dworkin left us in the form of a new philosophical framework for international law published posthumously, A New Philosophy for International Law (published in (2013) 41 Philosophy and Public Affairs 2).  More specifically, I will seek to offer some defense for Dworkin’s theory against the attack it came under in Adam Chilton’s A Reply to Dworkin’s New Theory of International Law (published in (2013) 80 University of Chicago Law Review Dialogue 105).

The essence of Dworkin’s philosophy of international law

In A New Philosophy for International Law, Dworkin sets out to (a) bring attention to the weaknesses of how legal positivism approaches international law; and (b) propose a better alternative.

Dworkin shows us that ‘consent’ cannot furnish an international rule of recognition like the standard positivist account would have us believe.  For example, he notes:

But the scheme has several defects as a proposed rule of recognition that are finally fatal. First, it offers no priority among the different sources it recognizes. Must treaties yield to general practices? Or vice versa? More important, though it is founded on the idea of consent, it sometimes binds those who have not consented. It offers no explanation why states that have not accepted a rule or principle as law may nevertheless be subject to it because the bulk of other states, or of ‘civilized’ states, have accepted it. It offers no standard for deciding how many states must accept a practice as legally required before the practice becomes ‘customary’ and therefore binding on everyone. It offers no guidance as to which states are sufficiently civilized to participate in that essentially legislative power. Or which norms are peremptory. (at 6–7)

Dworkin’s own proposal is that we abandon the idea of consent as the international law rule of recognition in favor of a framework centered on what he terms the principle of salience:

If a significant number of states, encompassing a significant population, has developed an agreed code of practice, either by treaty or by other form of coordination, then other states have at least a prima facie duty to subscribe to that practice as well, with the important proviso that this duty holds only if a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole. (at 19)

Chilton’s criticism

Chilton’s claim is nothing less than that Dworkin’s theory may be ‘fatally flawed’.  In support of this, he brings attention to what he claims to be three ‘flaws’, or ‘major shortcomings’, in Dworkin’s theory.  I will here discuss and seek to refute each one of those claims.

Chilton’s first claim

The first of the argued flaws identified in Chilton’s reply to Dworkin is as follows:

Professor Dworkin does not provide an explanation of what, if anything, should give when domestic preferences and international obligations are in tension. Professor Dworkin reasonably argues that, for a state to be legitimate, citizens must play some ‘role in their own government.’ […] Given that Professor Dworkin argues that political legitimacy requires giving people a voice in their government, what is unclear in Professor Dworkin’s theory is whether elected officials are still required to comply with international law when it is against the preferences of their citizens to do so. (at 110–111)

In relation to this, Chilton offers Dworkin two options he views as ‘permissible’ under Dworkin’s theory:

The first answer would be that legitimate governments —which Professor Dworkin claims must give citizens a voice — are not obligated to obey international law that their citizens do not support. The obvious problem with this answer is that, if legitimate governments are only obligated to comply with international laws they support, it is difficult to see how there would be much daylight between Professor Dworkin’s theory and the theories of international legal obligation based on consent that he so forcefully argues against. The second answer would be that elected officials are still required to comply, even if their citizens do not support compliance. […] Having this obligation rest with the elected officials and not the citizens, however, requires an argument for cosmopolitanism at the expense of democracy that may do more to undermine political legitimacy — one of the principles motivating Professor Dworkin’s theory — than the principle of salience he supports. (at 112)

I suspect Chilton’s failure here may be attributed to his commitment to a binary — black or white — approach to a landscape rich in nuances.  The better view is to consider the consent model of legal positivism as one end of the spectrum, with a slavish obligation to follow any and all international law, no matter what, on the other.

On my reading, Dworkin positions himself somewhere between these two extremes in speaking of a ‘prima facie duty’; thus, Dworkin need not adopt the one extreme position to avoid being associated with the other.  His analysis is more nuanced, indicated by the considerations that he outlines that must be taken into account in the interpretation of international law:

The correct interpretation of an international document, like the UN Charter, is the interpretation that makes the best sense of the text, given the underlying aim of international law, which is taken to be the creation of an international order that protects political communities from external aggression, protects citizens of those communities from domestic barbarism, facilitates coordination when this is essential, and provides some measure of participation by people in their own governance across the world. (at 22)

In light of this, Dworkin could, at the most, be accused of not having fully canvassed how these underlying aims ought to be balanced when a state is assessing its prima facie duty under the principle of salience.  However, he does offer us one tool for this; that ‘[t]hese goals [the underlying aims of international law outlined above] must be interpreted together: they must be understood in such a way as to make them compatible.’ (at 22)

Perhaps Dworkin’s principle of salience is easier to understand if re-worded, and fleshed out, such as the following:

1.—-If a significant number of states, encompassing a significant population, has:

– developed an agreed code of practice, either by treaty or by other form of coordination; and
– a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole,

2.—-then other states have at least a prima facie duty to subscribe to that practice as well.

2.—-In assessing whether such a duty exists, states should take account of the underlying aim of international law to create an international order that:

– protects political communities from external aggression;
– protects citizens of those communities from domestic barbarism;
– facilitates coordination when this is essential; and
– provides some measure of participation by people in their own governance across the world.

3.—-These goals of the underlying aim of international law must be interpreted together and must be understood in such a way as to make them compatible.

Chilton’s second claim

Chilton’s second objection is that ‘Professor Dworkin’s theory does not provide an account of why states should be bound by international law when the coordination problem that states face is not a prisoner’s dilemma.’ (at 112)  In relation to this, Chilton adopts a topic originally used by Dworkin ­— that of global warming — and asserts that while some states may suffer from global warming, other states may gain, thus taking the situation outside the classic prisoner’s dilemma.

Having taken us this far, Chilton demonstrates that the issues that flow from this are not particularly different to the first objection he raised:

The natural question, of course, is whether compliance should still be demanded in cases where a given state stands to lose from coordination. As with the last objection I raised, the options available to Professor Dworkin’s theory similarly appear to be either to allow states not to comply when it would not be in their interest to do so, or to demand that states comply even if it were against their interests. (at 113)

In light of this, we may instantly score a point for Dworkin by noting that, in fact, this so-called second flaw is indeed nothing but the other side of the coin of the first asserted ‘flaw’. In this we have eliminated one third of Chilton’s objections, and we may legitimately recycle the answer provided to his first objection — the participation by people in their own governance is one consideration in the balancing of a set of considerations when a state assesses its prima facie duty under the principle of salience.

In addition, there is something unwholesome about Chilton’s broad claim that some states may stand to gain from global warming.  At a minimum, it seems rather speculative.  After all, is it not possible that the destruction of the environments of some states will negatively impact the people of other states, for example, through refugee problems?

Chilton’s third claim

Chilton’s third claim is that, given that generating new sources of international law is a repeat game

if Professor Dworkin’s theory of how sources of international law should be interpreted was taken seriously by international courts and organizations, it would run the very serious threat of causing states to be unwilling to negotiate robust agreements in the future. (at 113)

He proceeds to explain in more detail that

if states begin to be held to more demanding standards than they thought had previously been agreed upon, in future negotiations those states would have strong reasons to block even weak language in international agreements to avoid it being held against those states later on. (at 113–114)

The first, and most obvious, problem with this proposition is that it assumes that states have a clear and precise interpretation in mind of what is agreed to at the time an international agreement is formed.  Given the vague and general language characteristic of many international agreements, this proposition does not survive even the slightest scrutiny.  On a sober-minded assessment of the real state of things, it is clear that the vague language common in international agreements may always be a source of interpretive contention irrespective of what method of interpretation one adopts.

Where the above is accepted, we may in fact turn the second part of Chilton’s third claim in favour of Dworkin’s theory.  Chilton correctly asserts that

the weight of the empirical evidence suggests that the reason international law helps to improve human rights is not because of international interpretations or enforcement, but instead because domestic political actors are able to use prior international commitments as powerful political tools when lobbying their government for change. (at 114)

To the extent that Dworkin’s theory provides for a more expansive interpretation of international law, it should make international law a more potent weapon in the hands of those domestic political actors that use prior international commitments as political tools when lobbying their government for change.  The trick is, of course, to ensure that the strength of international law is such that it does not scare off states, yet is strong enough to be useful both as a tool for domestic lobbying and for international enforcement.

Concluding remarks

Chilton’s complaint is a storm in a teacup and the ‘three flaws’ he attacks lack sting. Further, given the above, I cannot agree with the conclusion reached by Laurisha Cotton (available here) at an American Society of International Law event that ‘it is unlikely that Dworkin[’s] late work will change the dynamics of philosophy in international law.’

No doubt change will not happen overnight, but I suspect (and hope) that through A New Philosophy for International Law, Dworkin has planted a seed that over time will develop and eventually blossom.

Dan Jerker B Svantesson, Professor and Co-Director, Centre for Commercial Law, Faculty of Law, Bond University; Researcher, Swedish Law & Informatics Research Institute, Stockholm University; Australian Research Council Future Fellow. The views expressed herein are those of the author and are not necessarily those of the Australian Research Council.

ILA Victoria – President’s Report – Molina Asthana

It’s a pleasure to welcome you to the first President’s Report of the Victorian Chapter Committee for 2015.

A few developments in the last quarter worth mentioning are the resignation of:

  • Sophocles Kitharidis as the Vice-President;
  • Georgina Wu as the Secretary; and
  • Lea Christopher as the Treasurer,

due to their relocation to other parts of the country/world and work commitment taking priority. Sophocles will continue to remain on the committee to provide us with his valuable input and also lead the Use of Force Committee which we should have up and running soon.

We are very grateful for their assistance over the last year and more and wish them all the best in their future endeavours.

Barrister Peter Willis has kindly agreed to take over as the Vice-President and we are very grateful for this opportunity, as his long association with ILA and his wealth of experience in the international law arena will provide us with the much needed guidance.

David Chew, a young enthusiastic lawyer, has taken over as the Secretary of the Victorian Chapter Committee and we welcome him to the team. We are inviting expressions of interest for the position of Treasurer so if anyone is interested please email me on molina.asthana@vgso.vic.gov.au.

Despite the lack of visible activity it has been a busy time for the Victorian Chapter. A very interesting development this quarter has been the launch of an ILA Blog. In February 2015, the Australian Branch of the ILA launched its new blog, the ILA Reporter (ilereporter.org.au). Members of the Victorian Committee – Harry Aitken and Timothy Gorton – are the current editors of the ILA Reporter. In the future, the blog will be edited by other State and Territory Chapters on a rotating basis.

The ILA Reporter is a resource which offers analysis, commentary and discussion on issues in public and private international law. In particular, it intends to explore the ongoing development of international law globally with an emphasis on its connections with Australia. The blog is also a resource for keeping up-to-date with the work and activities of the ILA, both domestically and internationally. It is aimed at practitioners, academics and students. To find out more about the blog and to contribute, please click here.

We will be coming up with more events in the near future. Please keep up-to-date on our activities through the blog and we look forward to an exciting year ahead. If you would like to assist us in the organisation of any events or you have ideas for other events or activities you think the ILA Vic should become involved in please contact our Secretary, David Chew on: davidchew168@gmail.com.

Molina Asthana is a Principal Solicitor with the Victorian Government Solicitor’s Office. She is the President of the Victorian Chapter of the International Law Association, Chair of the International Law Section of the Law Institute of Victoria and Treasurer of the Asian Australian Lawyer’s Association.

Some lessons from Mauritius v UK for Philippines v China – Natalie Klein

The decision of the Arbitral Tribunal (at the Permanent Court of Arbitration) in Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) has been eagerly awaited.  This is not only because of the critical substantive issues at stake, but also because of the significant jurisdictional matters that the Tribunal has had to address that may influence the operation of an important international dispute settlement regime into the future.

The arbitration was heard before an ad hoc arbitral tribunal constituted under the UN Convention on the Law of the Sea (UNCLOS), which issued its Award on 18 March 2015 (Award).  The President of the Tribunal was Professor Ivan Shearer AM and the other members were Sir Christopher Greenwood (appointed by the UK), Rudiger Wolfrum (appointed by Mauritius), Albert Hoffman and James Kateka.  Judges Wolfrum and Kateka appended a dissenting and concurring opinion to the Award (Dissenting and Concurring Opinion).

The substantive questions before the Tribunal concerned, among other things, the legality of the UK’s declaration of a marine protected area (MPA) off the Chagos Archipelago, which is located in the middle of the Indian Ocean.  Also at issue was the UK’s entitlement to declare such an area as the lawful ‘coastal state’ given that Mauritius has a reversionary title to sovereignty.

The jurisdictional issues related to the possible scope of the compulsory dispute settlement regime enshrined in UNCLOS.  The Tribunal considered whether (or when) questions relating to territorial sovereignty could fall within the jurisdiction of a court or tribunal constituted pursuant to the UNCLOS dispute settlement regime.  The approach of the Tribunal on these issues will have significance for a pending arbitration that the Philippines has instituted against China, also under the UNCLOS compulsory procedures.

In instituting proceedings against the UK under UNCLOS, Mauritius sought declaratory relief to the effect inter alia that the UK was not entitled to declare an MPA or maritime zones off the Chagos Archipelago because it was not the ‘coastal state’.  It was also argued that the MPA was incompatible with the substantive and procedural requirements under UNCLOS in relation to fishing rights held by Mauritius and regarding the protection and preservation of the marine environment (Award, [158]).

Jurisdiction to resolve territorial sovereignty disputes under article 288 of UNCLOS

The UK challenged the jurisdiction of the Tribunal, arguing that some of Mauritius’ claims did not fall within the terms of article 288 of UNCLOS.  Article 288 provides that a court or tribunal:

[s]hall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.

The UK further argued that exceptions to jurisdiction under article 297, which include fisheries disputes in the Exclusive Economic Zone, also applied.

It is the arguments and discussion around the interpretation of article 288 that are of most interest in considering the implications for jurisdiction when there is a dispute that also concerns contested territorial sovereignty.  The UK submitted that the question of its sovereignty over Chagos was at the heart of the dispute and that it was illegitimate for Mauritius to represent that its claims related primarily to the interpretation or application of UNCLOS (Award, [169] – [174]).  Mauritius argued that a review of the drafting history of the dispute settlement regime indicated that UNCLOS negotiators had considered the question of contested sovereignty but had not reached consensus on an explicit exclusion (Award, [179]).  As such, it could not be concluded that questions of sovereignty were inherently beyond the jurisdiction of a tribunal operating under UNCLOS (Award, [178]).

Both states further considered the systemic implications of their respective positions.  The UK argued that there was a ‘grave danger’ for abuse in endorsing the position of Mauritius (Award, [198]), whereas Mauritius thought the dispute settlement regime would be strengthened.  For Mauritius, to decline jurisdiction would ‘exacerbate the dispute, to prolong it unnecessarily, and to signal that Part XV serves to perpetuate a colonial era dispute such as this one’ (Award, [201]).

To resolve this issue, the Tribunal considered that it must first determine whether the nature of the  Mauritian claim concerned territorial sovereignty, and if so, then decide to what extent it could resolve such a claim ‘as a necessary precondition to a determination of rights and duties in the adjacent sea’ (Award, [206]).  In responding to the first question, the Tribunal determined that the claims concerning the UK’s status as the ‘coastal state’ of the Chagos did indeed relate to land sovereignty over the Archipelago (Award, [207] – [212] and [229] – [230]).  In assessing whether it had jurisdiction to resolve this question, the Tribunal considered that the lack of attention in the drafting history would have more likely reflected the view that:

[n]one of the Conference participants expected that a long-standing dispute over territorial sovereignty would ever be considered to be a dispute “concerning the interpretation or application of the Convention”(Award, [215])

The Tribunal concluded that where the real issue in a case did not concern the interpretation or application of UNCLOS then a tribunal or court constituted under article 288 would have no jurisdiction over that claim (Award, [220]).

While the Tribunal did not have jurisdiction in respect of the questions pertaining to territorial sovereignty, it unanimously determined that it did have jurisdiction with respect to the Mauritian claim that the UK’s declaration of the MPA was incompatible with its obligations under UNCLOS.  In this respect it was held that the UK had breached its obligations under UNCLOS.

The jurisdictional questions in the decision could be significant for the Philippines v China arbitration.  In that case, the Philippines has asked an ad hoc arbitral tribunal constituted under UNCLOS to consider inter alia whether various features in the South China Sea are rocks, islands or low-tide elevations to determine their differing entitlements to maritime zones.  The ownership of these features is also disputed between the Philippines and China.  Unlike the Mauritius v UK case, however, the Philippines has explicitly stated that it is not asking the Tribunal to resolve questions of territorial sovereignty.  However, in a paper released from the Chinese Ministry of Foreign Affairs, China has argued that this case squarely concerns questions of contested territorial sovereignty and therefore falls outside the jurisdiction of the UNCLOS dispute settlement regime.  It should be noted that China has otherwise refused to participate in the arbitration and that this position paper is the only documentation from China responding to the Philippines’ claims.

The critical issue in Philippines v China, as with Mauritius v UK, is how the case is characterised.  Is it possible to make determinations about the maritime entitlements of certain islands, rocks or low-tide elevations without knowing which state owns those features?  I have argued elsewhere that it is, in my view, impossible to separate any consideration of entitlements from the question of who is so entitled.  What is the point of knowing that there are sovereign rights to fish within 200 miles of an island if it is not known which state has those sovereign rights?  The territorial sovereignty dispute is the real heart of the problem in Philippines v China.

Judges Kateka and Wolfrum dissented from the majority in Mauritius v UK in so far as it was held that there was no jurisdiction to resolve this territorial sovereignty claim within the UNCLOS regime.  They instead considered that the majority had read an additional, implicit limitation into the dispute settlement regime (Dissenting and Concurring Opinion, [37] – [45]).  This criticism does not strike me as warranted, however, because the Tribunal was instead answering the question of whether or not the dispute was one relating to the interpretation or application of UNCLOS.  The determination that a dispute does not concern the interpretation or application of UNCLOS is simply an application of article 288 rather than the creation of a new exception.

Yet while I personally support the finding of the majority on this point, it must be observed that Judge Wolfrum is the appointed judge of the Philippines in the Philippines v China arbitration and is apparently amenable to arguments that the UNCLOS dispute settlement regime can encompass territorial sovereignty disputes.  It will be interesting to see whether another ad hoc arbitral tribunal grapples with a similar, albeit not identical, issue.

Exchange of Views

A further important lesson from Mauritius v UK relates to the interpretation of article 283 of UNCLOS, which requires parties in dispute to ‘proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means’.  The Tribunal emphasised that this obligation was one that:

[r]equires the Parties to exchange views regarding the means for resolving their dispute; it does not require the Parties to in fact engage in negotiations or other forms of peaceful dispute resolution.  As a matter of textual construction, the Tribunal considers that Article 283 cannot be understood as an obligation to negotiate the substance of the dispute (Award, [378])

As such, article 283 does not necessitate that a party specify any particular claim it makes under UNCLOS in the course of those exchanges, as the UK had argued.

China has raised an objection to jurisdiction based on article 283 in its position paper, taking a similar position to the UK that the Philippines had not sought to exchange views on the claims that were ultimately presented to the arbitral tribunal.  While this argument was already unconvincing – given undoubted attempts to resolve the outstanding issues between the parties – the Mauritius v UK decision has reinforced the Philippines’ position that its many efforts to resolve the dispute do reflect an exchange of views for the purposes of Article 283.

Concluding remarks

Although Judges Wolfrum and Kateka argued that the Tribunal was effectively changing the balance achieved at the Third UN Conference on the Law of the Sea in respect of dispute settlement (Dissenting and Concurring Opinion, [45]), arguably their views favouring a determination of contested territorial sovereignty would take the UNCLOS dispute settlement regime to a broader set of disputes than its drafters anticipated.  In holding that the UK had failed to give due regard to the rights of Mauritius in establishing the Chagos MPA, Mauritius v UK has shown that it is possible to make important contributions to the law of the sea and resolve complex questions that arise under UNCLOS.  The Philippines v China arbitration may well do the same if it assesses the legality of China’s so-called nine-dash line as a claim to maritime entitlement from mainland China.  But the ongoing viability and effectiveness of the UNCLOS dispute settlement regime will be best enhanced if jurisdictional decisions do not involve a reach into areas that do not properly concern the interpretation or application of that Convention.

Natalie Klein, Professor and Dean, Macquarie Law School; Vice-President of the ILA (Australian Branch).

 

ICC v Islamic State? An Emerging Quandary

Last month, the United Nations High Commissioner for Human Rights released a report which concluded that the Islamic State had perpetrated gross violations of international criminal law, including acts amounting to possible genocide.  The High Commissioner recommended that Iraq accept the jurisdiction of the International Criminal Court (ICC) to investigate and prosecute crimes perpetrated within its territory under article 12(3) of the Rome Statute.

This suggestion triggered international debate over what role the ICC could and should have in prosecuting Islamic State leaders.

They key issue in this debate is whether the Security Council should refer the ongoing situation in Iraq and Syria to the ICC.  This has been previously advocated by UN human rights chief, Zeid Raad al-Hussein, and France has recently declared its support for such a resolution.

On 2 April 2015, the New York Times published an article by John Bellinger III — a former US legal adviser to the National Security Council and State Department — supporting a Security Council referral.  For international lawyers, Bellinger’s most compelling point is that the US and UK should not limit themselves to merely prosecuting Islamic State leaders for crimes committed against their citizens under their respective domestic legal systems.  An international prosecution by the ICC is necessary because:

[t]he group is engaging in widespread and systemic attacks against civilians in Iraq and Syria that constitute grave international crimes (including genocide)

Bellinger’s article is flecked with controversial political statements, which are picked up and attacked by Professor Kevin Jon Heller in a post on Opinio Juris.  Heller disagrees with Bellinger’s statement to the effect that it is more sensible for the ICC to investigate the Islamic State rather than have them investigate the US or the UK over treatment of detainees or Israel in respect of the 2014 conflict in Gaza.  Heller argues that ‘the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable’.

Heller also takes issue with a procedural point asserted by Bellinger — that a Security Council referral would be the only way to prosecute Islamic State because Iraq and Syria are not parties to the Rome Statute.  Heller responds that a referral is unnecessary, because the ICC’s jurisdiction is not territorial: it can prosecute the nationals of any state party to the Rome Statute.  As some prominent Islamic State figures are citizens of states who are party to the Rome Statute — like the infamous Jihadi John who is a British citizen — the ICC already possess a limited jurisdiction that would enable it to perform prosecutions.

However, on 8 April 2015, ICC Prosecutor, Fatou Bensouda joined the fray and stated that ‘[t]he jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage’.

Perhaps in a nod to the members of the Security Council, Bensouda goes on to remark that:

The decision of non-Party States and the United Nations Security Council to confer jurisdiction on the ICC is, however, wholly independent of the Court… I stand ready to play my part, in an independent and impartial manner, in accordance with the legal framework of the Rome Statute

However, the immediate goal of the international community is not the prosecution of Islamic State’s leadership, but the protection of Iraqi and Syrian populations and the ongoing military campaign against the extremist group.

 

Plain Packaging of Tobacco Products – Australia and the WTO – Pauline Wilson

Australia was the first — and until very recently the only — country to introduce mandatory plain packaging for all cigarettes and tobacco products.  Australia’s Tobacco Plain Packaging Act 2011 (Cth) (Act) prohibits the use of brands, logos and colours on all cigarette and tobacco products and on packaging imported, manufactured or sold in Australia.  On 9 March 2015, Ireland followed Australia’s example and enacted similar plain packaging laws.

Since the introduction of the Australian measure, five members of the World Trade Organization (WTO) have requested dispute settlement with Australia (WT/DS 435, WT/DS 434, WT/DS 441, WT/DS 458, WT/DS 467).  Indeed, there is widespread interest in the outcome of the disputes pending at the WTO.  This is the first of a series of articles that will investigate and report on the proceedings against Australia in the WTO.

Whilst the Australian market for cigarettes is relatively small, and although the majority of tobacco products sold here are manufactured domestically and are not imported, the primary concern of the tobacco industry (and hence tobacco producing countries) is the precedential effect of Australia’s introduction of plain packaging – this has potential for global significance.  If Australia’s policy is not thwarted at the WTO (or in another dispute forum, including the Investor State Arbitration with Phillip Morris Asia), the policy may encourage a global ‘olive revolution’, with the international dissemination of drab olive coloured plain packaging with large health warnings for tobacco products.  Such a movement would deprive the tobacco industry of its last semblance of control over the advertising and marketing power upon which its profitability depends.

Why did the Australian Government introduce plain packaging?

On 1 December 2011, the Act became law in Australia.  Its purpose is to improve public health, give effect to Australia’s obligations as a party under the Framework Convention on Tobacco Control (FCTC), and to contribute to FCTC objectives by regulating the retail packaging and appearance of tobacco products (see ss 3(1)(a), (b) and 3(2) of the Act).  The Act forms part of a comprehensive strategy to reduce the rate of smoking in Australia (see National Tobacco Strategy 2012-2018).

Tobacco is the only legally available consumer product that, when used in the manner intended by the manufacturer, will kill a third to a half of all people who use it.  As such, the goal of the strategy is ‘[t]o improve the health of all Australians by reducing the prevalence of smoking and its associated health, social and economic costs, and the inequalities it causes’.  In combination with other discouraging tactics — including health warnings, taxation and prohibiting point-of-sale visibility — the Act aims to reduce smoking in Australia to ten percent of the population by 2018.  A key objective behind plain packaging is to reduce the uptake of smoking by young people, because evidence suggests their demographic is most influenced by packaging aesthetics (discussed further below).  The issue remains however, whether plain packaging is successful in contributing to the broader regime of reducing Australia’s rate of smoking, compared to other measures like increased taxes and health warnings.

Is plain packaging effective?

The Australian Government frames the public health policy quandary regarding cigarettes by stating that:

it is impractical to ban the purchase of a product that so many people find so difficult to quit, [and] governments the world over have accepted that it is unethical to encourage use of tobacco and appropriate to legislate to prevent all forms of its promotion (see National Tobacco Strategy 2012-2018).

Australia’s previous regime (including taxation and large graphic warnings) did not achieve the desired level of reduction in tobacco consumption.  The Australian Government also prohibited all forms of tobacco advertising in 1992.  Thus, plain packaging is the final avenue available to the government, other than prohibition, to achieve the required level of protection.  At the same time, the cigarette and its packaging is the last marketing tool of the tobacco industry to attract and retain customers.

Packaging differentiates brands, which is particularly important in homogenous consumer products such as cigarettes.  Tobacco companies promote their products through branding and package design, creating preferences, differentiation and identification.  Indeed, advertising and promotional activities by tobacco companies are shown to cause the onset and continuation of smoking among youth.  Hence, advertising on cigarette packets can influence one’s choice to smoke.

Research prior to the introduction of Australia’s policy shows that plain packaging, by removing most brand design elements, is successful in decreasing cigarette brand image associations.  Moreover, plain packaging can render a smoker’s image ‘less cool’ and ‘less attractive’.  Researchers also note that colouring affects sensory and hedonic ratings, signals product attributes and determines the consumer’s final perception of the product, thus influencing price and quality perceptions.  For example, white, blue and green tones of menthol cigarettes denote a refreshing and soothing product.  On the other hand, the white and red packaging of Marlboro’s chevron strengthens the consumer’s psychological association with brand identity.  Ultimately, plain packaging laws covering all aspects of cigarette design – from sticks to packaging inserts, cardboard and wrapping – standardises the appearance of all tobacco brands, greatly reducing the status-signalling role and appeal of cigarettes.

The tobacco industry presents a number of strong arguments against plain packaging.  These include that:

  • there is insufficient evidence the measure will reduce smoking;
  • the legislation will not be effective;
  • retailers’ businesses will be damaged;
  • competition will be diminished; illicit trade will be increased; and
  • international agreements concerning intellectual property will be breached.

These arguments, combined with the threat of litigation, have led all countries (except Australia and now Ireland) that had previously considered implementing plain packaging in their jurisdictions to abandon it.  Nonetheless, evidence exists to refute these arguments.

On 24 May 2011, Cancer Council Australia published a review of the evidence that finds that plain packaging reduces the uptake of smoking by young people.  Some important findings include how colouring and imagery contribute to consumers’ misperceptions that certain brands are safer than others.  Removing colours and misleading terms such as ‘smooth’, ‘gold’ and ‘silver’ reduces false beliefs about the harmfulness of cigarettes.  In addition, young people and adults perceive cigarettes in plain packs as less appealing, less palatable, less satisfying and of lower quality compared to cigarettes with branded packaging.  The study reinforces previous research that plain packaging alters perceptions about the characteristics and status of people who smoke brands.  It is also shows that the intensity of opposition by the tobacco industry against plain packaging suggests they believe such measures will reduce sales and company profits.

In addition to the growing evidence supporting plain packaging, WTO jurisprudence allows members a degree of deference in determining their own levels of protection or regulatory outcomes (see Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled And Frozen Beef, WT/DS161/AB/R WT/DS169/AB/R (11 December 2000)).  This may, in part, be in recognition of the fact that every effective public health measure started as an experiment at some stage.  WTO jurisprudence recognises that there will inevitably be gaps in scientific knowledge.  This means that health policy that is based on limited emerging evidence may still justify a departure from trade commitments to the WTO.  Jurisprudence also accepts that there may be a degree of uncertainty regarding scientific evidence (see Appellate Body Report, Canada – Continued Suspension of Obligations in the EC – Hormones Disputes, T/DS321/AB/R (14 November 2008)).  Thus, given that there is a growing evidence base supporting the efficacy of plain packaging, Australia is in a strong position to argue that there is sufficient evidence to establish that the measure contributes to its overall tobacco reduction strategy.

Pauline Wilson recently graduated from an LLM at the University of Amsterdam with a focus on international trade and investment law. Prior to that she graduated from the ANU with a combined Bachelor’s of Arts and Law.