Volume 21 of the Australian International Law Journal has just been published by the International Law Association (Australian Branch).
The Editors of the ILA Reporter are pleased to alert readers to the following call for papers issued by the Melbourne Journal of International Law:
The Editors of the Melbourne Journal of International Law, Australia’s premier generalist international law journal, are now inviting submissions for volume 17(2). This issue will have a special focus on the legal implications of the Trans-Pacific Partnership, and space will also be available for articles on other issues of international law.
For consideration for inclusion in the print issue of 17(2), authors should submit on or before July 1, 2016. Submissions and inquiries should be directed to firstname.lastname@example.org. For more information, please visit http://www.law.unimelb.edu.au/mjil#submissions.
International law practitioners, academics and students alike will benefit from the recent release by Médecins Sans Frontières (MSF) of the updated Practical Guide to Humanitarian Law in an online format. The online release comes at the launch of the second updated edition of the Practical Guide, originally authored in 1998 by MSF Legal Director, Françoise Bouchet-Saulnier.
MSF is a humanitarian organisation that delivers aid to people affected by armed conflict and health disasters and globally advocates for the proper implementation of international humanitarian law. The Practical Guide was originally launched in order to comprehensively present the terms and rules of international humanitarian law accessibly to a global audience, such that a uniform interpretation could be established with a due focus on victims’ rights.
The 2015 update recognises the new dilemmas that have been posed to international humanitarian law since 1998. These include the ambiguities arising from the ‘global war on terror’, the rise of non-state armed groups and the increasing use of asymmetrical warfare. Amidst such changes, the Practical Guide considers how international humanitarian law can remain relevant, and for what purpose it exists in the 21st century. The answer that is ultimately put is that humanitarian law remains a crucial means of tempering power and warfare, despite its imperfections as a body of law.
The online Practical Guide includes a variety of alphabetically-arranged entries that cover humanitarian law issues from aggression to military necessity to right of access.
October 2015 has seen the flaring of tensions once more in the ongoing whaling dispute between Japan and Australia. On 6 October, Japan filed a special reservation to its declaration recognising the compulsory jurisdiction of the International Court of Justice (ICJ). The special reservation, filed with the United Nations, excludes ICJ jurisdiction over:
any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.
In effect, Japan’s reservation seeks to prevent a future legal challenge being brought internationally against its whaling activities. Japan’s scientific whaling program has been the subject of a longstanding dispute between Australia and Japan that, in 2010, led Australia to institute legal proceedings against Japan at the ICJ. This was after the exhaustion of bilateral negotiations and discussions at the International Whaling Commission.
The Whaling in the Antarctic (Australia v Japan) case considered whether Japan, in undertaking the Japan Whale Research Program Under Special Permit in the Antarctic II (JARPA-II), had breached the 1946 International Convention for the Regulation of Whaling (ICRW) by killing whales in the Southern Ocean. Australia argued that Japan was in breach of a moratorium on commercial whaling effectively imposed from 1986 onwards by the adoption of paragraph 10(e) of the ICRW Schedule (which provided for zero catch limits) and Japan’s further obligation under paragraph 10(d) to observe the moratorium. Japan argued that its program fell under the limited exception to the moratorium provided in article VIII of the ICRW, allowing nations to give special permits to its nationals to kill whales ‘for purposes of scientific research’.
On 31 March 2014, the ICJ handed down its judgment, holding that JARPA-II did not fall within the scope of article VIII and determining that Japan was in contravention of the ICRW. The ICJ ordered that Japan revoke any JARPA II permits and refrain from granting any further permits under the program.
While the judgment was widely celebrated at the time as a successful instance of legal dispute resolution and a triumph for the global anti-whaling coalition, Japan has since signalled preparations for a new scientific whaling program, NEWREP-A.
Japan’s filing of a special reservation this month seemingly flouts the scope and power of the ICJ and limits Australia’s options to challenge NEWREP-A on grounds of international law. The Australian government has since announced it is seeking legal advice.
Last week the USS Lassen, a United States guided-missile destroyer, sailed within 12 nautical miles of a series of artificial islands built by China in the South China Sea. In response, China reportedly summoned the US Ambassador, with a state-run newspaper claiming that China was not afraid of fighting a war. China’s naval commander warned that the move was ‘dangerous and provocative’, and policy makers, officials and journalists on all sides of the dispute have debated the wisdom, or otherwise, of these actions by the US.
The latest move by the US comes in the wake of China’s actions in the previously uninhabited Spratly Island group. In late 2014, China began reclaiming land on a series of reefs, some of which were only partially exposed at low tide. In 2015, satellite images showed significant construction beginning on the reefs/islands. China based its claim over the reef/islands on the so-called ‘Nine-Dash Line’, a 1947 map drawn up by Chiang Kai-shek’s nationalist government. It has been used as the basis, once in 1958, and in 2009 before the UN, in order to substantiate China’s claims.
China’s claim has not gone uncontested. Both Vietnam and the Philippines lay claim to the Spratly Island group, and some of the islands fall within the Exclusive Economic Zone of Malaysia and Brunei under the United Nations Convention on the Law of the Sea (UNCLOS). The Philippines has brought a case challenging the validity of China’s claims before an arbitral tribunal under UNCLOS. Despite China’s argument that the is over competing sovereignty claims, and so outside the remit of the arbitral body, last week the Permanent Court of Arbitration rejected this argument and will consider the case under UNCLOS (see Lea Christopher’s piece on the ILA Reporter on 5 November 2015 summarising the tribunal’s decision). However, China has pre-empted any finding, stating that it will not comply with any unfavourable ruling.
The legal issues associated with the South China Sea are complicated. There is a distinction to be made between claims that are covered by customary law and claims that are covered by the international law of the sea (predominantly contained within UNCLOS). The case of the USS Lassen is to be distinguished on this basis as well, and Shannon Tiezzi’s Diplomat analysis is instructive on the point. The recent US patrol was not concerned with challenging China’s claim to sovereignty over the islands, but rather asserting freedom of navigation, a point which the author claims has been lost among much of the news coverage.
Under UNCLOS, territorial sea extends 12 nautical miles from the shore (article 3). Within it, any ship enjoys the right of innocent passage (article 19). The circumstances that will generate territorial sea is central to the current disputes. A key provision is article 13, regarding low-tide elevations (LTEs):
Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.
Article 60 then states that artificial islands do not have any territorial sea of their own and are only entitled to at most a 500 metre ‘safety zone’. This means that under UNCLOS, any artificial structures built by China on LTEs have no territorial sea. Whilst some of China’s construction has occurred on land not considered LTEs, the US has only conducted patrols within 12 nm of Mischief and Subi reefs, artificial islands that were previously LTEs, and so understood by the US not to have a territorial sea. By asserting their right to freedom of navigation past such structures, Tiezzi suggests the US ‘is not challenging China’s sovereignty over the Spratly features; it is challenging the status of those features under international law‘.
With many other LTEs in the region, this stand on freedom of navigation past the Spratly chain is an important test. Understanding how patrols, such as the USS Lassen’s, challenge China under the international law of the sea will be central in understanding the broader geopolitical developments in the region.
Click here to access the video.
Professor Joseph Weiler, Editor-in-Chief of the European Journal of International Law (EJIL), and Charlesworth discuss whether feminist theory in international law has become mainstream. Charlesworth acknowledges that there have been gains in the feminist project since she co-published her seminal article, ‘Feminist Approaches to International Law’ with Christine Chinkin and Shelley Wright in 1991 (see (1991) 85 American Journal of International Law 613). In particular, the language of feminism has entered mainstream institutions. However, Charlesworth provides that, whilst the ‘vocabulary has triumphed … the political agenda behind the ideas hasn’t’.
Charlesworth says that it is problematic that the debate on feminist theory remains ‘in-house’. She suggests that the project would progress if international lawyers who were not feminist theorists were to engage with the issue in respect of their various fields of expertise.
Charlesworth and Weiler also traverse the topic of Australian and New Zealand international lawyers abroad. Weiler jokes that both countries are considered ‘international law powerhouses’ and sometimes people tell him that EJIL should be called the Australian Journal of International Law because it publishes the work of so many Australians.
Charlesworth suggests that a possible explanation is that international law is considered an escape route for Australians, ‘a bridge from our isolated existence into other worlds’. She observes, however, that it is a shame for Australian scholarship that there is such a leakage of talent to Europe and the United States.
The Melbourne Journal of International Law (MJIL) has released Issue 1 of Volume 16, which is available publicly on its website. MJIL is a student-edited, generalist international law journal at the University of Melbourne, and is published twice a year.
Issue 16(1) contains the following articles, which may be of interest to ILA Reporter readers:
- Banal Crimes against Humanity: The Case of Asylum Seekers in Greece, by Ioannis Kalpouzos and Itamar Mann. This article considers actions by Greek and European border agency agents against asylum seekers in Greek detention facilities and whether they may constitute crimes against humanity under the Rome Statute.
- Ebola: A Threat to the Parameters of a Threat to the Peace?, by Anna Hood. Hood’s article looks at UN Security Council Resolution 2177, which declared the Ebola outbreak in West Africa to be a ‘threat to the peace’ under article 39 the UN Charter. Hood argues that, having for the first time recognised a health issue as a threat to the peace, the Security Council has substantially expanded the scope of the term. Hood considers what new limits there may be on article 39 given this expansion.
- What Happened to the International Community? R2P and the Conflicts in South Sudan and the Central African Republic, by Spencer Zifcak. The article examines the conflicts in South Sudan and the Central African Republic and the responses of the international community to the intra-state violence that has occurred. Zifcak seeks to explain why the implementation of any doctrine of responsibility to protect to the situations was ultimately insufficient.
- The Ascendancy of the Lex Loci Delicti: The Problematic Role of Theory in Australian Choice of Tort Law Rules, by Robert Pietriche. This article considers choice of law issues in the context of Australian High Court decisions. Pietriche contends that exclusive reference to the lex loci delicti (the law of the place of the tort) when determining choice of law is an unsatisfactory approach that has at its origins the failure of the High Court’s theoretical approaches in important cases.
- LGBTI Activism Influencing Foreign Legislation, by Giulia Dondoli. This article looks at the efficacy of LGBTI NGOs participating in transnational advocacy. Dondoli explores examples in Australia and the United Kingdom before looking at potential negative effects of NGO advocacy.
- Of Souls, Spirits and Ghosts: Transposing the Application of the Rules of Targeting to Lethal Autonomous Robots, by Tetyana (Tanya) Krupiy. The article examines the rules of targeting and their application to the development of ‘lethal autonomous robots’. Krupiy analyses the current employment of three types of robots and their compliance with targeting rules. She describes the decision-making qualities such robots would need so that they could follow the rules of targeting.
- The Fight against Hooliganism in England: Insights for Other Jurisdictions?, by Alexandra Veuthey and Lloyd Freeburn. This article analyses the effectiveness of the United Kingdom’s regulatory responses to organised group violence and whether their approach has been as successful in other European countries.
- The Italian Constitutional Court’s Ruling against State Immunity when International Crimes Occur: Thoughts on Decision No 238 of 2014, by Marco Longobardo. The case note explores the 2014 decision of the Italian Constitutional Court, which ruled on the constitutionality of legislation created to implement the ICJ’s 2012 decision Jurisdictional Immunities of the State  ICJ Rep 100. That legislation required Italian judges to deny jurisdiction for trials relating to Nazi crimes in the 1940’s, but the Court ruled it unconstitutional as it limits access to justice. The Court determined that Italy’s judiciary would not implement the international law of state immunity when it is invoked at a trial for international crimes.
- Privacy in the Digital Era: Human Rights Online?, by Daniel Joyce. The commentary examines the UN General Assembly’s 2014 resolution The Right to Privacy in the Digital Age and uses it a springboard to discuss whether human rights law is successfully being adapted to the modern reality of the digital age.
- Book Review by Milena Sterio of Self-Determination and Secession in International Law edited by Christian Walter, Antje von Ungern-Sternberg and Kavus Abushov. The book is a collection of essays on questions of self-determination and rights to secession. It is divided in to three parts: Part I addresses the general legal questions around these concepts and recent decisions such as the ICJ advisory opinion, Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo  ICJ Rep 403; Part II focuses on case studies from the former Soviet Union such as Transnistria, South Ossetia and Nagorno-Karabakh; and Part III presents ‘comparative studies of secessionist conflicts’ such as Kosovo, Western Sahara and the Crimea.
The Editors encourage readers to let us know of other publications and periodicals on international law by Australian institutions. It is an important goal of the ILA Reporter and the International Law Association in Australia to promote greater awareness of the work of international legal practitioners and academics.
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.
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].
On 12 June 2015, the International Court of Justice (ICJ) confirmed that Timor-Leste had officially withdrawn its case against Australia in Questions relating to the Seizure and Detention of Certain Documents and Data (see this ICJ Press Release). Timor-Leste commenced the proceedings against Australia in December 2013 in relation to the seizure by ASIO of Timorese legal documents relating to the dispute between the two states before a tribunal at the Permanent Court of Arbitration. The arbitration concerns the validity of the Treaty on Certain Maritime Arrangements in the Timor Sea following allegations that Australia spied on the Timorese Cabinet during the treaty negotiation process. The resolution of the ICJ proceedings come only after Australia returned the seized documents.
The ICJ had previously indicated provisional measures (see the ICJ Summary) in March 2014. The ICJ determined that the sovereign equality of states provided an inviolable right to confidential correspondence with their legal counsel. Whilst undertakings given by Australia not to review the documents reduced the risk of disadvantage to Timor-Leste, orders were still given by the ICJ to fully protect Timor-Leste’s rights to their confidential legal documents. The ICJ’s measures required that Australia:
(a) ensure that the content of seized materials was not used to the disadvantage of Timor-Leste;
(b) keep all documents, electronic data and copies of the data under seal; and
(c) not interfere in communications between Timor-Leste and its lawyers in relation to the arbitration.
As the dispute between the two states has concluded at the ICJ, the central arbitration dispute will now resume. Australia’s Department of Foreign Affairs and Trade, commenting on the withdrawal of the ICJ proceedings, stated that the Australia is ‘disappointed that Timor-Leste has decided to resume the arbitration against Australia’ and that ‘Australia will strongly defend the arbitration’ (see this DFAT Press Release).