Upcoming Lecture with Justice Keane AC – “Courts and International Arbitration: A Reappraisal of Roles”

The International Law Association, Queensland Chapter warmly invites you to a breakfast lecture by Hon. Justice Patrick Keane AC of the High Court at 7:30 – 8:45 am on Friday 4 November 2016 in the Edinburgh Room, Brisbane Club. He will be speaking on the topic of “Courts and International Arbitration: A Reappraisal of Roles”.

Justice Keane was appointed to the High Court in March 2013. At the time of his appointment he was Chief Justice of the Federal Court of Australia. He served as a judge of the Court of Appeal, Supreme Court of Queensland from 2005-2010 before joining the Federal Court. He is a graduate of the University of Queensland and Oxford University. He was admitted to the Queensland Bar in 1977 and in 1988 he was appointed Queen’s Counsel. He was Solicitor-General for Queensland from 1992 to 2005. Justice Keane AC was appointed a Companion in the General Division of the Order of Australia in 2015.

CPD POINTS: Solicitors may wish to claim 1 general CPD unit, and Barristers may wish to claim 1 CPD point in the Substantive Law category. You will be able to record your attendance by signing an attendance register.

A hot plated breakfast will be served, accompanied by fresh fruit, pastries, juices, tea & coffee. Tickets will cost $60 for Members, $70 f0r Non-Members and $45 for full-time students.

For payment details, download the flyer here. Please RSVP to Liz Cottle by email to ecottle@qldbar.asn.au

We look forward to you joining us!

ILA Conference 2016 – Johannesburg – Update

The 77th ILA conference will be taking place in Johannesburg, South Africa, from 7-11 August 2016. The President of the South African Branch, which is organising the conference, has sent the following update to the Australian Branch:

“The 77th Biennial Conference of the International Law Association, which is scheduled for 7 – 11 August 2016 in Johannesburg, will mark the second time only for a biennial conference to take place on the African continent in the almost 150 year history of the Association. Expectations are therefore high that the members of the historically dominant ILA constituencies in the North will attend the conference in substantial numbers in the interest of providing a platform for the establishment of a community of international law scholars that is more representative of the regions of the world than is currently the case.

Apart from this imperative, and in addition to the reporting sessions of some thirty ILA committees and study groups, the programme offers parallel sessions on issues of regional and global interest and significance. These include the UN report on Africa’s illegal capital flight; harmonization efforts in international commercial law; BRICS in international law; the peace and security architecture of the African Union; automated weapon systems and international law; marine bio-diversity beyond areas of national jurisdiction; investor – state dispute resolution; nuclear weapons, non-proliferation and contemporary international law; the law of armed conflict in Africa; and international criminal law.

Leisure options abound. Pre- and post-conference tours to the spectacular Victoria Falls and to Cape Town are available. In Johannesburg and surroundings delegates have the option to visit game farms, the Constitutional Court, the Apartheid museum, SOWETO and Liliesleaf Farm where senior members of the ANC were arrested in 1963 for plotting the overthrow of the Apartheid government.

The members of the South African Branch of the ILA have invested a lot of time and energy in putting this conference together in adverse circumstances. We hope that we can count on the patronage of our fellow ILA members in other branches.”

All members and subscribers are encouraged to attend this significant conference. To register, visit http://ila2016.com/index.php/register-now/.

A conversation with Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions — Sophocles Kitharidis and Laura Baykara

On 8 October 2015, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Christof Heyns, gave a rare lecture to the International Law Association (Victorian Chapter) during his three-day visit in Australia. Having held this UN mandate for the last five years, Professor Heyns discussed the ways in which his mandate functions and its coverage of the scope and limitations of the right to life, and provided an overview of the central themes that addressed by the mandate, including:

  • the need for law reform on the use of force by law enforcement officials in most countries in the world;
  • the development of guiding principles on the management of demonstrations for the Human Rights Council;
  • the demise of the death penalty; and
  • the emergence of new technologies that affect the right to life, both in terms of weapons and technologies that can be used to protect life.

The Mandate

In 1982, the Commission on Human Rights put forward resolution CHR Res 1982/29 to the Economic and Social Council requesting the appointment of a special rapporteur with a focus on the practices concerning summary or arbitrary executions. The mandate was established under resolution ESC Res 1982/35.

Ten years later, resolution CHR Res 1992/72 widened the mandate to include ‘extrajudicial’ as well as ‘summary or arbitrary’ executions. The amendment indicated the importance placed by members of the Commission on Human Rights to include all violations of the right to life as guaranteed by the majority of international human rights instruments (further information available here).

Professor Heyns discussed the importance of the mandate covering all countries, irrespective of whether a state has ratified relevant international conventions. He noted his most recent country visits to Gambia, Papua New Guinea, and Ukraine.

In resolution HRC Res 26/12, the United Nations Human Rights Council underscored the importance of the UN’s chief investigator to carry out their mandate in the following way:

(a)       To continue to examine situations of extrajudicial, summary or arbitrary executions in all circumstances and for whatever reason, and to submit his or her findings on an annual basis, together with conclusions and recommendations, to the Human Rights Council and the General Assembly, and to draw the attention of the Council to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;

(b)       To continue to draw the attention of the United Nations High Commissioner for Human Rights to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;

(c)       To respond effectively to information which comes before him or her, in particular when an extrajudicial, summary or arbitrary execution is imminent or threatened or when such an execution has occurred;

(d)       To enhance further his or her dialogue with Governments, as well as to follow up on recommendations made in reports after visits to particular countries;

(e)       To continue to monitor the implementation of existing international standards on safeguards and restrictions relating to the imposition of capital punishment, bearing in mind the comments made by the Human Rights Committee in its interpretation of article 6 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol thereto;

(f)        To apply a gender perspective in his or her work.

Professor Heyns articulated the importance of the operational duties of the Special Rapporteur as an advisor to the UN. He underscored the need for rapporteurs to secure invitations from member states where investigations are required and the challenges associated in obtaining approval for the country visits, such as governments not replying or delaying responses due to political pressure and sensitivities. One would also assume that further challenges would include the rapporteurs’ ability to maintain an independent and impartial position throughout their investigation.

Drones, weapons systems and the right to life

Professor Heyns explored the concepts of drones and autonomous weapons systems (AWS) and the complexities (both legally and morally) around how these systems have the ability to make an accurate decision concerning the use of force against human beings — both within and outside armed conflicts, such as those undertaken by law enforcement agencies. The concept of the ‘weapon becoming the warriorunderscores the legal and ethical quandaries around the new mechanisms for the use of force. Within the context of law enforcement, intervention (and not human intervention) can be used as a form of non-lethal action, but questions still exist around the ability of a machine making a judgement on when and how the intervention is to be used.

In examining the use of armed drones and AWS from a human rights approach, accountability comes to the forefront of the debate (where a violation of the right to life is evident). Otherwise, it can be classified as an empty normative system. Arguably, since the AWS will have the ability to make judgements with the ‘human’ element absent, it may be that human beings may not be held responsible for collateral damage or for circumstances where the armed drone or AWS fails its target or mission; this is due to the importance of meaningful responsibility depending on meaningful control (see also Professor Heyn’s comments earlier this year) (http://www.ohchr.org/Documents/Issues/Executions/CCWApril2015.doc).

Professor Heyns further examined an AWS’ ability to accurately target legitimate objects. The ability for a machine to make life and death decisions is a growing area of debate concerning the right to life and human dignity. Questions concerning the dignity of the targeted not being affected and the machine’s decision-making process arise as areas for further review. However, it is important to note that even though the machine is making the decision, a human element will also continue to exist within the chain — whether it be the individual who created the structure of the machine, designed the machine, programmed the machine or released the machine to undertake the attack.

Professor Heyns discussed the right to life in the context of the use of force, political killings and the death penalty. The right to life is a precondition to other human rights — for example, political killings against journalists have a chilling effect on a number of other human rights. However, it cannot necessarily be assumed that the right to life is the supreme right vis-à-vis other rights, given the debate surrounding armed drones and AWS. Where the right to life is accepted as the supreme right, it is done on the condition that it is a right that is a prerequisite of all other existing rights. This can be seen in the example of armed drones and the use of force where the drones themselves are not illegal. However, when implementing them as a weapon of force, ‘they may be easily abused and lead to unlawful loss of life, if used inappropriately’ (as stated here by UN Special Rapporteur on counter terrorism, Ben Emmerson).

The presentation concluded with a number of questions from the audience. On behalf of the International Law Association (Victorian Chapter), we extend our greatest appreciation and thanks to Professor Christof Heyns for making this event possible.

This article is not intended to be a transcript of the presentation.

Laura Baykara holds a Bachelor of Laws (Hons) from Monash University and is a solicitor at Herbert Smith Freehills.

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

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.

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.

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.

Welcome to the ILAReporter!

The Editors are proud to bring you the official blog of the International Law Association (Australia) (ILA) and the first blog in Australia dedicated to public and private international law.

The ILAReporter is for practitioners, academics and students alike, and provides a resource for tracking international legal issues which have bearing on Australia and our region.

What can you expect from the ILAReporter?

The ILAReporter 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.

We believe that international law is integral to Australia’s place in the world.

Australia is, after all, something of an international law powerhouse – our citizens have been responsible for developing the R2P doctrine, preparing the International Law Commission’s work on the International Criminal Court and penning UN Security Council Resolution 2166 following the downing of flight MH17.

And yet our actions are not without controversy at home and abroad – we have, for example, been criticised for our controversial asylum and detention policies.

But international law touches on more than our reputation and standing in the global community. It also has bearing on national security, environmental protection, mineral rights, cultural heritage, cross-border transactions, tourism and much more.

It is the ambition of the ILAReporter to chart as much of this exciting constellation as possible. We hope that contributions will be many and varied and that you will always find them insightful and thought-provoking.

There will be a few regular pieces to keep you anchored, including:

  • briefing posts from leading experts on topical international legal issues; and

We hope to be able to offer more regular contributions as time goes on.

Who are our editors and contributors?

The ILAReporter is edited on a rotating basis by the State and Territory Chapters of the Australian Branch of the International Law Association. The Victorian Chapter is currently responsible for editing the blog.

The current Editors are Harry Aitken and Timothy Gorton, who are both lawyers practising in Melbourne.

Our contributors include lawyers, academics and advanced research students who have a practice or interest in international law.

If you would like to make a contribution, please read our Terms and Conditions and send your work to the editors at editor@ilareporter.org.au.

ILA Committee Update: Committee on International Cultural Heritage Law – Patrick J. O’Keefe and Lyndel V. Prott

The Committee on International Cultural Heritage Law (Committee) was established by the Executive Council of the International Law Association (ILA) at the 63rd Conference in Warsaw in 1988. The previous year, we had written to the then Chairman of the Australian Branch, Rodney Purvis, proposing the creation of the Committee. Rodney supported the idea wholeheartedly and went through the necessary steps to have it placed on the agenda for the Warsaw meeting. At that meeting, Patrick was going down in the lift at the conference hotel when Ian Brownlie, then Director of Studies, entered and announced that the Executive Council had recommended establishment of the Committee and that he, Patrick, had been nominated as Chairman. He asked for a recommendation of Rapporteur – to which Patrick suggested Jim Nafziger of Willamette University in Oregon – and a topic – to which Patrick proposed the preparation of a Draft Convention on the Protection of the Underwater Cultural Heritage. Both proposals were endorsed by the ILA in due course.

Patrick and Jim began work on the Draft Convention at the same time as the Committee was being formed. The Committee worked hard for the next four years, engaging with subject matter which was very controversial and involved complex issues of public and private international law. The United Nations Law of the Sea Convention contained two provisions – Articles 149 and 303 – relating to archaeological and historical objects at land and sea which were generally considered confused and inadequate. The Committee had to find solutions more effective than these. For example, it proposed that there be a “Charter” – developed by the International Council on Monuments and Sites (ICOMOS) – to govern archaeological investigations. The Charter would be attached to the Draft Convention and enforced by states using nationality and port-state jurisdiction. Provisions on the movement of unlawfully excavated material were included. The Draft Convention was adopted by the 66th Conference at Buenos Aires in 1994.

The ILA has consultative status with UNESCO, the major international organisation with responsibility for cultural matters. The Draft Convention was forwarded for consideration to UNESCO which had just decided to make protection of underwater cultural heritage a priority topic. UNESCO and the United Nations Division of Ocean Affairs and Law of the Sea took the Draft Convention and used it as a basis for their own working document. This was debated by states during four negotiating sessions in Paris before being adopted as the Convention on the Protection of Underwater Cultural Heritage in 2001 with 87 states in favour, four against and 15 abstentions. As at January 2015, there were 48 States Parties. Patrick attended all negotiating sessions as an observer and Jim was frequently present, when he could leave his post in Oregon. Without the work of the ILA there may not have been a UNESCO Convention on the subject.

Following work on the Draft Convention, the Committee has undertaken a number of significant projects. One was a Blueprint’ to guide research, progressive development and codification of the cultural heritage law. It was felt that when a problem arose a state often tried to devise a solution without looking to see what other states had done in similar circumstances. Comparative studies might not provide a solution but they could give guidance. In particular they could assist the development of law in a logical manner rather than a series of ad hoc decisions as a reaction to particular crises. The studies were published as a symposium in (2004) 9 Art Antiquity & Law. They do not form a single blueprint for action, but provide a set of suggestions and designs for reform and development of international cultural heritage law in the early years of the twenty-first century.

Patrick resigned as Chairman in 2002. Jim was appointed in his place and Bob Paterson from the University of British Columbia in Vancouver became Rapporteur. The Committee continued with its work.

In times of great disaster people often want to keep their national treasures free from harm, even if this means sending them to a foreign country. Famous examples from around the time of World War II include the Crown and regalia of St. Stephen of Hungary (sent to USA); the tapestries from Cracow Castle in Poland (sent to Canada) and Picasso’s Guernica (sent to USA before the War but kept there at Picasso’s request as long as General Franco remained in power). In all these cases there was conflict over when and how the objects should be returned. More recently, the rise of the Taliban in Afghanistan brought to the fore fears concerning the safety of Afghan cultural heritage in foreign countries. There were moves to acquire these objects and keep them in a secure place until they could be safely returned to responsible authorities in the country. The great danger with this approach is that it could encourage illicit traffic in such objects if those responsible know they have a market.

The ILA Committee proceeded to draft a set of Guidelines for the Establishment and Conduct of Safe Havens for Cultural Material, including a Safe Haven Model Contract (adopted at the 73rd Conference, Rio de Janeiro, 2008). It covers not only the Afghan type of situation but also those where cultural material has been removed from its normal location due to natural disasters such as earthquake. Under the Guidelines, a safe haven ‘shall not engage in any activity the result of which would be to stimulate illegal trafficking in cultural material or other threats to it.’ Material is to be returned when there is a bona fide request. However, and this is a controversial clause, the safe haven must be satisfied that the entity making the request is capable of fulfilling ‘conditions for safekeeping and preserving the material.’ In the three cases from World War II specifically mentioned above, return was controversial because of the political persuasion of the requesting state. The Guidelines are intended to be incorporated into the operating rules of international organisations, ranging from the World Bank to museums and other relevant entities.

Another international convention is in the making with the Draft Convention on Immunity from Suit and Seizure for Cultural Objects Temporarily Abroad for Cultural, Educational or Scientific Purposes. This was adopted by the ILA at the 76th Conference, Washington, April 2014. The Draft was to be distributed to, inter alia, the United Nations, UNESCO, the Hague Conference on Private International Law, the European Union and the Council of Europe.

This topic raises complex political and legal issues. Many cultural objects have a disputed ownership history. People have had their prized possessions lost or seized as a result of war, social unrest or societal change. The owner (or his or her heirs) later finds the object in a foreign state and begins legal proceedings for its return. Complexities arise when the object of concern is on public display in the foreign state. The Preamble to the Draft Convention states that cultural objects ‘in light of their special importance, should be treated differently under international law from other objects.’ In particular, rules on immunity from seizure should apply to facilitate ‘the mobility of cultural objects’ and overcome ‘the reluctance of lenders to send their cultural objects into a foreign jurisdiction where they might be subject to some form of judicial seizure.’ The Draft Convention had to balance protecting the security of loans against the need to guard against assisting illicit traffic. It attempts to do this by emphasising that the object must be only temporarily in the receiving state. This is defined as not more than five years from the time the object enters the state. During this time no order can be issued preventing its return. Moreover, its presence in the state shall not form the basis for any legal process.

The Committee has long been interested in the legal rules governing the transfer of cultural objects. For example, it produced a set of Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material which was adopted by the ILA in 2006 at the 72nd General Conference. This emphasised what the Committee saw as the ‘need for a collaborative approach to requests for transfer of cultural material, in order to establish a more productive relationship between and among parties.’

In 2014, Jim Nafziger and Bob Paterson edited a volume entitled Handbook on the Law of Cultural Heritage and International Trade, published by Edward Elgar. This contains 20 specialised state reports by local experts (Craig Forrest wrote the one on Australia) plus a general chapter on international trade; one on human rights and export controls; another on export controls on objects of foreign origin and finally one setting out a ‘legal pluralist approach to international trade in cultural objects’.

The Committee’s newest project is to prepare a set of guidelines or recommendations on landscapes as cultural heritage pertaining to indigenous groups. The project will involve a series of detailed examples of landscapes significant to indigenous cultures and an identification of issues related to those landscapes in the context of corresponding indigenous understandings and national legal systems.

The original concept of the Committee was that of a body which produced high quality research into particular subjects, but also used the results to advance selected areas of international law through publications, guidelines and draft conventions. This would seem to have been achieved. The challenge continues to be delivering the Committee’s work to those with the means and the enthusiasm to implement it.

Patrick J. O’Keefe and Lyndel V. Prott are members of the Committee on International Cultural Heritage Law. Patrick was founding Chairman of the Committee, and is former Adjunct-Professor of law at ANU. Lyndell is former Director of UNESCO’s Division of Cultural Heritage and former Professor of Cultural Heritage Law at the University of Sydney.

The key documents of the Committee can be found here.