There is no such thing as a funny dictatorship. This seemingly obvious point was highlighted with the death of Otto Warmbier, who was until recently imprisoned in North Korea. While Hollywood movies like Team America: World Police and The Interview have, from time to time, parodied the North Korean regime, Warmbier’s death is a stark reminder that this regime is not a joking matter. More
In June 2017, negotiations began anew between Turkey and Greece over the contested island of Cyprus. This update details the history of the conflict and analyses progress from the recent talks. More
Attorney-General George Brandis outlines Australia’s position at international law on the right to self-defence against imminent attack
On 11 April 2017 Attorney-General Senator the Hon. George Brandis deliver a public lecture at the TC Beirne School of Law, University of Queensland, on the “The Right of Self-Defence Against Imminent Armed Attack In International Law”. While the doctrine of self-defence against imminent attack is well established at international law the Senator seeks to place the doctrine a modern context in which states must take account of non-state actors who have the capability to commit harm transnationally, and in which alongside the threat of terrorism by physical attack lies the threat of cyber attack. The key, according the Senator, is placing the word “imminent” in this modern context.
The speech consists in large part of an historical overview and a re-stating of the doctrine in its post-World War context. Australian, says the Senator, subscribes to the prevailing understanding of the doctrine. Under Article 51 of the UN Charter and international customary law the central point of the doctrine is that force may only be used in situations of armed attack or imminent armed attack:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
The Article also requires nations exercising self-defence against an armed attack to report the attack to the Security Council. Two further developments in international customary law give the structure for Australia’s position on the doctrine of self-defence in a modern context.
First, the Senator cites a UN High Level Panel Report and the development of international customary law as making clear that the right to self-defence is triggered not only by an armed attack itself but also by an imminent armed attack. Second, the Senator then cites UN Resolution 1368 passed in the aftermath of the September 11 2001 attacks as the basis for widening the international customary law principle to one in which states are not confined to using force in self-defence against another state only.
The Senator then seeks to outline Australia’s approach to using the doctrine in the situation of terrorism or cyber-attack by highlighting the difficulties of implementing how a strictly traditional definition of the term “imminent” would prevent states from acting in the interest of their populations’ security in certain situations.
He uses the example where a terrorism cell has expressed an intent to cause harm to a state and then goes dark. This is an observed pattern which may indicate a future attack but it still remains difficult to tell how “imminent” an attack is, where it will occur or whether there may be some other unrelated reason for the communication going dark for a period.
In applying “imminence” to the doctrine of self-defence, according to the Senator Australia seeks to apply what are known as the “Bethlehem Principles”, enunciated by Sir Daniel Benthem QC (Sir Daniel Bethlehem KCMG QC, ‘Principles Relevant to the Scope of a State’s Right of Self‑Defense Against an Imminent or Actual Armed Attack by Non‑State Actors’ (2012) 106 American Journal of International Law 769). The principles concern the questions such as the probability of an attack, the scale of the anticipated attack, whether it is isolated or not and whether there will be other opportunities to defend against or avoid the attack.
The Senator also makes clear that the doctrine of self-defence must also be tempered by necessity, proportionality and the clear point of differentiation between self-defence as anticipatory to an imminent attack and self-defence as pre-emptive to an attack. The difference as he puts it is that pre-emptive self-defence is responding to “threats which have not yet crystallised but which might materialise in the future”. This is the line of demarcation in applying the doctrine in the context of terrorism and cyber-attack. The Senator quotes Livy in stating Australia’s unequivocal opposition to pre-emptive self-defence: “Men, to guard against their alarms, make themselves objects of terror; averting the danger from their own heads, by imposing upon others the necessity of either doing or suffering the evil which they themselves fear.”
Adherence to anticipatory self-defence rather than pre-emptive self-defence, the Senator says, allows Australia to act “from a position of legal authority and moral strength”. As the Senator himself highlights, the tensions in anticipatory self-defence are truly difficult, and future challenges will demonstrate whether Australia can reconcile its doctrine with its practice.
Investor-State Dispute Settlement: Controversial, but Constitutionally Valid? – Lisa Burton Crawford, Patrick Emerton and Emmanuel Laryea
Investor-State Dispute Settlement (ISDS) clauses are a prominent feature of many modern International Investment Agreements (IIAs). They are included in nearly all the IIAs to which Australia is a party. Typically, an ISDS clause allows a foreign investor (often a corporation) to challenge a government decision before a panel of private arbitrators who have the power to make decisions and make awards that are binding and enforceable. More
The Martin Place Papers are an occasional series published by the International Law Association (Australian Branch) to provide wider access to the proceedings and outcomes of ILA sponsored seminars and conferences. No 7 in this series has now been published. Martin Place Paper No 7,The International Law Context of Recent Developments in Indigenous Policy contains the proceedings of a seminar convened jointly by the ILA and the National Centre for Indigenous Studies (NCIS) at the ANU in late 2015.
The paper by ILA member Greg Marks, ‘Lifestyle choices? Closing down Aboriginal communities and international law’ examines the relevance of Australia’s obligations under the UN International Covenant on Economic, Social and Cultural Rights (ICESCR) to policies aimed at closing down remote small Aboriginal communities. Such policies and their concomitant funding arrangements have been problematic to Aboriginal groups endeavouring to achieve their aspirations to live on and manage their traditional lands and waters. The analysis by Greg Marks indicates that the policies are also problematic in terms of Australia’s international legal obligations.
The second paper, by Dr Sean Kerins, ‘Indigenous Development in the Southwest Gulf of Carpentaria region of the Northern Territory: Opportunities and Challenges’ examines policies and developments in the Region from the viewpoint of international norms and expectations contained in instruments such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). This analysis is particularly relevant to the current controversy about the proposal to expand the huge McArthur River mine near Borroloola (see media coverage here).
To obtain a copy of Martin Place Paper No 7, contact the Secretary, ILA (Australian Branch) firstname.lastname@example.org. Cost is $20 per copy.
The Multiple Roles of Women in the Bosnian War: Victims, Ex-Combatants, Peace Builders, and Perpetrators – Dr Olivera Simic
War generally affects the entire population, male and female. Yet within the portrayal of war, men are usually portrayed as the aggressors and perpetrators, and women as the helpless victims. Most of the literature on women and warfare, or women and genocide, analyses the role of women from a victim-centred perspective. More
For our fourth profile of Women in International Law Month, Editor-in-Chief Jennifer Tridgell sat down with the President of the Australian Human Rights Commission (AHRC), Professor Gillian Triggs. She is a highly accomplished international lawyer and academic, with experience on matters from commercial law to Indigenous rights. More
On 24 June 2006, the Philippines abolished the death penalty for all crimes within Philippine jurisdiction when Republic Act No. 9346 was enacted. A year later, the Philippines ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (“ICCPR”). In doing so, the Philippines decided to absolutely and permanently abolish the death penalty.
Yet on 30 June 2016, Deputy Speaker Fredenil Castro introduced House Bill No. 4272 into the House of Representatives. The proposed Bill reimposes the death penalty for drug-related offenses, including, amongst other acts, the importation, sale, trading, delivery, or distribution of dangerous drugs, and authorises hanging, firing squad, and lethal injections as modes of execution. On 7 March 2017, the House of Representatives passed the Bill by 217 votes to 54.
This paper, authored by Dr Christopher Ward in collaboration with the Commission on Human Rights of the Philippines, argues that, in light of the Philippines’ obligations under customary international law and other international treaties, notably the ICCPR and its Second Optional Protocol, the Senate should not pass this Bill.
The report is published here with the permission of Dr Christopher Ward (President of ILA Australian Branch).
The ACT Chapter of the International Law Association (Australian Branch) is seeking nominations for the following positions:
- Publications Editor
- Events Coordinator
- Communications and Sponsorship Coordinator, and
- General Committee members.
For descriptions of these positions and further information on the ACT Chapter of the ILA, please click the link below. To nominate for a position, please send a short (max 1/2 page) statement on what you can bring to the ACT Chapter and the particular position to email@example.com by 31 March 2017.
For our third profile for Women in International Law Month, we were honoured to interview Professor Christine Chinkin of the London School of Economics. She is a renowned Feminist scholar, particularly for her ground-breaking work on women, peace and security, in addition to her collaboration with Hilary Charlesworth and Shelley Wright on the gendered boundaries of international law. More