OUP creates interactive online international legal history tool

Oxford University Press has published an interactive online tool charting the history of international law. It is available here.

The blurb from the website states:

We have created a concise timeline mapping the broad history of public international law with particular attention paid to the signing of major treaties, the foundation of fundamental institutions, the birth of major figures in international law and milestones in the development of some of the field’s best-known doctrines. There are varying opinions on where to start in the history of international law, as well as arguments around periodising the dynamic developments, though for this project we have started our timeline with the Treaty of Tordesillas in 1494. Explore some of the major developments in the history of international law and read more by clicking through to freed-up chapters from the Oxford Historical Treaties, the Max Planck Encyclopaedia of Public International Law, relevant book chapters, blog pieces and journal articles.

ILA Event – Sydney – Representing Australians Abroad: Practical Lessons from Egypt and Asia

Gilbert + Tobin and the Australian Branch of the ILA are pleased to bring together Professor Donald Rothwell of the ANU College of Law, Christopher Flynn, Partner at Gilbert + Tobin and Barrister Dr Christopher Ward to discuss issues that arise when representing Australians accused of offences committed overseas, including journalist Peter Greste and Andrew Chan and Myuran Sukumaran.

The Panel will discuss matters including the appropriate legal strategies, co-ordination with government and international law issues including trends in the application of the death penalty for drug trafficking crimes.

The event will be held at 6pm, 16 September 2015 at Gilbert + Tobin, Level 37, 2 Park Street, Sydney.

Please RSVP by 31 August 2015 to Kate Vosch (kvosch@gtlaw.com.au).

The event flyer can be accessed here.

French Australian Lawyers Society Event – Melbourne – EU Seminar on Wine Law Regulations and Implications for Australian Lawyers

On 17 September 2015, the French Australian Lawyers Society will hold a seminar on European Wine Law and Regulation and Australian Implications with the Hellenic Australian Lawyers Association and the Italian Australian Lawyers Association.

The speakers are: Dr Matt Harvey, Senior Lecturer in Law at Victoria University, and Stephen Stern, Senior Partner at Corrs Chambers Westgarth.

The event will be held at the RACV Club, 501 Bourke Street, Melbourne, and includes dinner and drinks at a cost of $110 per head.

Registrations may be made here and close 13 September 2015.

Motion to ratify Optional Protocol to Torture Convention falls flat

On 11 August 2015, Senator Penny Wright of the Australian Greens put forward a formal motion in the Australian Senate moving that the Government be called on to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Protocol).

The motion is available here on page 12.

Australia ratified the Convention Against Torture (Convention) in 1989 and the prohibitions contained in the Convention have been adopted in the Commonwealth Criminal Code. Whilst Australia signed the Protocol in 2009, it has not yet been ratified. Presently, 79 countries have ratified the Protocol, including the UK and New Zealand.

The Protocol would require Australia to allow visits by independent international and national bodies to places where people are deprived of their liberty in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.  In particular, Australia would be required to establish a National Preventative Mechanism (NPM) which would have, at minimum, the power to examine prisoners and detainees, make recommendations to national authorities and submit proposals with respect to Australian legislation.

Senator Wright’s motion provided at para (a)(iii) that:

 the establishment of an NPM:

  • had bipartisan support from the Joint Standing Committee on Treaties in 2009, and an implementation framework has been identified by the Australian Human Rights Commission,
  • would help address serious allegations of cruel, inhuman and degrading treatment occurring in some prison facilities in Australia and immigration detention facilities in Nauru, and provide the required transparency to allow health care practitioners and legal advisors to attend to good professional and ethical conduct for clients in detention, and
  • can also deliver improved workplace conditions for employees and efficiency dividends for the taxpayer.

The motion did not receive support from the Government or the Opposition.  Labor Senator, Claire Moore, stated:

…we did deny formality to this important motion, because it is our longstanding practice. Where we have an issue such as this which is complex and creates a number of complex situations and also determines significant discussions across all states and territories, we believe it is not appropriate to use the notice of motion process for that, and that is our standard practice.

As to the status of Australia’s implementation of the Protocol, the Australian Human Rights Commission states on its website that:

The Commission understands that a proposal for ratifying the [Protocol] is under consideration by the Australian Government, and consultations are continuing with the states and territories on necessary steps to implement the obligations under [the Protocol].

ILA Event – International Rules on the Use of Force: Implications for Russia + Ukraine, China + South and East Chinese Seas – 20 August 2015

The ILA is pleased to announce that Dr Alison Pert will deliver a seminar which will cover the history and extent of the maritime territorial claims of China in this area, the competing claims from other states in the region, the arbitral proceedings brought by the Philippines, and the legal status of the islands being created or expanded through Chinese dredging and land reclamation.

Dr Pert will also briefly review the recent history of Russia’s intervention in Ukraine, focussing on the legal justifications advanced by Russia. In light of the status of Russia and China as permanent members of the UN Security Council, protected from Security Council censure by their veto power, Dr Pert will raise the question of the role of international law, and the UN Charter system of collective security in particular, in this new post-post-Cold War era.

The event will be held at 5.30 pm (for a 5.45 pm start), 20 August 2015 at Marque Lawyers, Level 4, 343 George Street, Sydney.

Please RSVP to Phoebe Saintilan (phoebesaintilan@gmail.com) by 18 of August 2015.

A copy of the event flyer is accessible here.

ILA and Baker & McKenzie Event – ‘Sea Level Rise and International Law’ – 10 August 2015

The Editors would like to draw readers’ attention to an upcoming seminar in Sydney, hosted by the International Law Association and Baker & McKenzie.  The seminar is on ‘Sea Level Rise and International Law’.  A flyer about the seminar is available here — it is on Monday 10 August 2015, 12:00 pm to 2:00 pm at Baker & McKenzie’s Sydney office.

The speakers are all members of the ILA’s Committee on International Law and Sea Level Rise:

  • Professor David Freestone (Executive Secretary of the Sargasso Sea Commission) — Committee Co-Rapporteur;
  • Professor Rosemary Rayfuse (University of New South Wales) — Committee Member; and
  • Professor Clive Schofield (University of Wollongong) — Committee Member.

The speakers will discuss the Committee’s work regarding the ‘consequences of sea-level rise on entitlements to maritime areas and on the natural environment’. They will also discuss the Committee’s draft interim report and future programs.  Professor Rayfuse recently published a report on the Committee’s work on the ILA Reporter.

ILA Committee Update: Committee on International Law and Sea Level Rise — Rosemary Rayfuse

Australian members of the Committee:

  • Professor Jane McAdam, UNSW Australia – CoRapporteur
  • Professor Rosemary Rayfuse, UNSW Australia – Chair’s Nominee
  • Professor Clive Schofield, University of Wollongong – Ordinary Member
  • Derek Wong – Ordinary Member (Alternate)

The International Law Association (ILA) Committee on International Law and Sea Level Rise (Committee) held its first inter-sessional meeting on 12–13 June 2015 in Oslo. Hosted by Professor Davor Vidas (Committee Chair) and the Fridtjof Nansen Institute, the meeting was attended by 16 Committee members and 7 observers. After two intensive days of discussions, the participants wrapped up their deliberations with a dinner cruise on the Oslo fjord. Not only was the meeting productive, but it was highly enjoyable as well.

The foundation and mandate of the Committee

The Committee has its origins in the 2012 final report Baselines under the International Law of the Sea, which recognised that the loss of a state’s territory due to sea-level rise is not only a baseline or law of the sea issue, but encompasses other wider areas of international law. This was acknowledged in Resolution No 1/2012: Baselines under the International Law of the Sea, adopted at the 75th ILA Conference in Sofia, which led to the establishment, in the same year, of this new Committee.

The mandate of the Committee, approved by the ILA Executive Council and recalled in its first session, is ‘to study the possible impacts of sea-level rise and the implications under international law of the partial and complete inundation of state territory, or depopulation thereof, in particular small island and low-lying states;’ and to ‘develop proposals for the progressive development of international law in relation to the possible loss or all or parts of state territory and maritime zones due to sea-level rise, including the impacts on statehood, nationality, and human rights.’

As outlined in the proposal for the establishment of the Committee, three main avenues of enquiry were initially considered as relevant:

  • The consequences of sea-level rise on entitlements to maritime areas;
  • The consequences of sea-level rise on statehood; and
  • The consequences of sea-level rise on human rights and mobility (displacement, migration and planned relocation).

The research areas were reflected in the appointment of Professor David Freestone and Professor Jane McAdam as Co-Rapporteurs.

Work of the Committee in 2014–2015

In April 2014, the Committee held its first meetings in Washington DC, two closed sessions (see here and here) and an open session (here), during which participants discussed the working methods of the Committee and its mandate, as well as a background paper relating to the theme of mobility. It was decided to approach the issues initially in two distinct streams; one relating to maritime zones and the other to mobility and human rights, and, at a later stage, to concentrate on joining the streams in the consideration of the statehood issue. In this latter regard, it was suggested that representation and active participation in the work of the Committee by members from the Pacific and other regions likely to be most affected should be sought and encouraged. In addition, it was noted that the Committee’s mandate also invited broader considerations relating to the consequences of sea-level rise on other areas of international law including, but not limited to, international environmental law and the law relating to climate change adaptation and mitigation. The desire for the inclusion of additional expertise on the Committee to enable a fuller consideration of these broader issues was expressed.

At the inter-sessional meeting on 12–13 June 2015, discussion papers were presented on the two main areas of the Committee’s mandate. Of the Australian members, Professor Clive Schofield spoke on options to address the instability of baselines and maritime limits as a result of sea level rise and outlined recent trends in state practice towards the fixing of maritime boundaries and outer limit lines. In addition, in response to the wishes of the membership expressed during the Washington meetings, Professor Rosemary Rayfuse presented a paper on the broader issue of the impacts of sea-level rise on regimes relating to the protection, conservation and management of natural (as opposed to human) systems, including the Convention on Biological Diversity, the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Ramsar Convention on Wetlands of International Importance. Co-Rapporteur Professor Jane McAdam presented an extensive draft interim report on human rights and mobility prepared by a working group comprised of herself, Committee members Bruce Burson (New Zealand) and Walter Kälin (Switzerland), and Sanjula Weerasinghe.

Robust discussions were held on both the law of the sea and the human rights/mobility issues. There was a significant amount of agreement among the Committee members on both the issues for consideration and the possible recommendations that might be made as work progresses, which will be reflected in a draft interim report. This will be circulated to Committee members for comment and input prior to its submission for consideration at the 2016 ILA Conference in Johannesburg.

ILA members interested in the work of the Committee are invited to attend a seminar to be held at UNSW Law on Monday 10 August 2015 (details forthcoming) at which Co-Rapporteur Professor David Freestone will speak on the law of the sea and statehood issues.

Tribunal holds hearing on jurisdictional questions in Philippines v China arbitration — Lea Christopher

Introduction

From 7 to 13 July 2015, the Arbitral Tribunal held the first hearing in the arbitration between the Republic of Philippines and the People’s Republic of China in connection with their dispute in the South China Sea.  The arbitration was submitted by the Philippines on 22 January 2013, pursuant to the compulsory dispute settlement provisions under part XV of the United Nations Convention on the Law of the Sea (UNCLOS).  A five member ad hoc tribunal was constituted under annex VII of UNCLOS and sat in the Peace Palace, the headquarters of the Permanent Court of Arbitration, in the Hague. While the hearing was not open to the public, the Tribunal permitted the governments of certain states (Indonesia, Vietnam, Japan, Thailand and Malaysia) to send small delegations as observers.

The arbitration concerns disputes between the Philippines and China in relation to their maritime entitlements in the South China Sea. China has continued to reiterate its position of non-acceptance of (and non-participation in) the arbitration, maintaining that it believes in resolving disputes in the South China Sea via bilateral negotiations and that the arbitration violates previous agreements between the two states. The Philippines has sought to challenge this position at the hearing, submitting that they have pursued a course of bilateral and regional diplomatic efforts to resolve its disputes with China for almost two decades without success. The Philippines says that this has left no recourse other than arbitration.

In its Statement of Claim, the Philippines relies on UNCLOS which, it submits, defines and limits the entitlements of coastal states to a territorial sea, exclusive economic zone (EEZ) and continental shelf (and sets out states’ rights and obligations within those areas).  In particular, the Philippines relies on provisions that provide that a state’s EEZ cannot extend beyond 200 nautical miles from its mainland coast (or any island over which the state has sovereignty) (article 57), and that its continental shelf extends to the same distance (unless it can be established that the state’s continental margin extends beyond that distance) (article 76).

According to the Philippines, China contravenes these provisions by claiming, on the basis of its nine-dash line, ‘historic rights’ to areas that are beyond its 200M limit, including some areas that fall within 200M of the coasts of the Philippines’ main islands.  While China is a signatory to UNCLOS (which enabled the Philippines to commence the compulsory arbitral proceedings), it claims that it does not subscribe to some of its tenets.

However, the purpose of the first hearing was not to decide the Philippines’ substantive claims, but to decide whether the Tribunal has jurisdiction over these claims and whether they are admissible.

The Philippines’ substantive claims

At the hearing, the Philippines outlined the principal substantive claims that it intends to pursue if the Tribunal decides the question of jurisdiction in its favour. They can be summarised as follows:

  1. China is not entitled to exercise its alleged ‘historic rights’ over the waters, seabed and subsoil beyond the limits of its entitlements under UNCLOS.  Its nine-dash line, insofar as it purports to define the limits of China’s ‘historic rights’, is not supported by international law;
  2. The various maritime features relied upon by China to assert its maritime claims in the South China Sea are not islands (as China claims) but are either ‘rocks’ (within the meaning of article 121, paragraph 3 of UNCLOS), ‘low tide elevations’ or are permanently submerged.  While rocks generate an entitlement to a territorial sea of 12M (allowing China to exercise sovereignty over that area), they cannot generate an entitlement to an EEZ or continental shelf beyond that limit (and low tide elevations generate no entitlements).  China’s significant construction activities on various maritime features cannot change their nature in law;
  3. China has breached UNCLOS by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction; and
  4. China’s fishing practices have damaged the marine environment in the South China Sea, including within the Philippines’ EEZ, in breach of UNCLOS. UNCLOS requires states parties to adopt measures to protect the marine environment.

The jurisdictional question

China’s position

In a position paper published in December 2014 (see also a summary of the paper here), China contended that the Philippines’ claims are beyond the scope of the Tribunal’s jurisdiction because they require the Tribunal to make determinations on territorial sovereignty and the delimitation of sea boundaries.

China made three interrelated claims in support of this contention. First, it claimed that UNCLOS does not give the Tribunal jurisdiction to address territorial sovereignty-related questions. According to China, in order to decide any of the Philippines’ claims, the Tribunal would be required to determine, directly or indirectly, the territorial sovereignty over various maritime features in the South China Sea, which is beyond the scope of UNCLOS.

Secondly, it claimed that in 2006, pursuant to article 298 of UNCLOS, China opted out of compulsory arbitration on particular categories of disputes, including those relating to sea boundary delimitations. Article 298(1) provides that, when signing or ratifying UNCLOS (or any time thereafter), a state may opt out of compulsory arbitration with respect to particular categories of disputes, one of which relates to sea boundary delimitations.  Article 298(a)(i) then provides that, when such a dispute arises and no agreement within a reasonable period of time is reached in negotiations, the opted out party must accept, at the request of the other party, submission of the matter to conciliation.

The Philippines has not requested that the parties participate in conciliation pursuant to article 298(a)(a) presumably because, as discussed below, its position is that the dispute does not concern sea boundary delimitations and therefore has not been ‘opted out of’ by China.

The Philippines’ position

At the hearing, the Philippines submitted that its claims do not require the Tribunal to make determinations on the question of territorial sovereignty or the delimitation of sea boundaries (its statement is available here). It emphasised that the Tribunal is really being asked to do the following:

  1. To clarify the nature of the disputed features in the South China Sea (ie, whether they are rocks, islands or low-tide elevations) that are relied upon by China to assert its claims, because the features’ characterisations determine whether they can be appropriated by China or can generate their own 200M EEZ; and
  2. To examine the validity of China’s nine-dash line based on its ‘historical rights’.

According to the Philippines, the question to be determined by the Tribunal on this issue, therefore, is whether UNCLOS allows a state to claim maritime entitlements based on ‘historic’ rights beyond those provided for in UNCLOS.

Accordingly, a key issue in the dispute is whether it is possible for the Tribunal to make determinations about the nature of particular maritime features and their entitlements, without addressing who actually exercises sovereignty over those features. The Tribunal will also need to consider whether it can determine the validity of the nine-dash line without addressing sovereignty over any of the maritime features within the area delimited by the line.

On a higher level, the Philippines painted the case as being a test of the utility and feasibility of UNCLOS compulsory dispute resolution mechanisms. Emphasising China’s ‘aggressive and disconcerting’ activities in the South China Sea, the Philippines contended that the dispute resolution mechanisms give weaker states the opportunity to ‘challenge the powerful on an equal footing’ on the belief that ‘law triumphs over force’. On this basis, according to the Philippines, a finding that the Tribunal lacks jurisdiction to hear its claims would render the UNCLOS dispute resolution mechanisms almost valueless for small states parties vis a vis their more powerful neighbours.

Conclusion

Notwithstanding the Philippines’ contentions concerning the case’s significance to the international community, the jurisdictional questions facing the Tribunal turn on the characterisation of the Philippines’ substantive claims and, in particular, whether they involve the determination of questions of territorial sovereignty.

The Philippines now has until 23 July 2015 to provide supplementary written submissions in response to questions posed by the Tribunal at the hearing. The Tribunal expects to determine the issue of jurisdiction by the end of the year. If it decides that it does have jurisdiction over the Philippines’ claims (and they are admissible), the matter will proceed to a substantive hearing. However, China has reiterated that it will not alter its position in the South China Sea and, therefore, is unlikely to comply with any unfavourable ruling ultimately made by the Tribunal.

Lea Christopher is a lawyer at Clayton Utz in Canberra. The views expressed in this article are solely her own.

Book Launch – The Silent Victim: Crimes Against the Environment

This event hosts the Australian launch of Professor Steven Freeland’s new book, which considers the inclusion of a new crime in the Rome Statute of the International Criminal Court, to be called ‘Crimes Against the Environment’.

Professor Freeland and Professor Don Henry will discuss the environmental challenges that warfare poses, the legal recourse available under the current legal framework, and the potential for prosecution and remedies under the proposed crime of ‘Crimes Against the Environment’.

The event will be held at 6 pm (for a 6.30 pm start) on 17 August 2015 at King and Wood Mallesons, Level 61, Governor Phillip Tower, 1 Farrer Place, Sydney.

The event flyer can be accessed here.