Event: ILA (Australian Branch) End of Year Event, 2 December 2020

The International Law Association (Australian Branch) is hosting an end of year event featuring Professor Philippa Webb, King’s College London on the following topic: Swaying or straying? Australia’s influence on freedom of expression and the right to a fair trial in international law.

Philippa Webb is Professor of Public International Law at King’s College London. She joined The Dickson Poon School of Law in 2012 after a decade in international legal practice. She was previously visiting Assistant Professor in the Advanced LLM Programme at Leiden University (2009-2011). She has been Visiting Professor at Université Paris X Nanterre, ESADE Law School and Pepperdine University’s London programme.

In recent studies of geopolitical influence, Australia has been labelled a ‘hemispheric power’, more influential than India and Russia. There is also a long held view that Australia is a ‘middle power’ than can ‘punch above our weight’. By focusing on Australia’s influence on two critical protections – freedom of expression and the right to a fair trial – I will examine whether Australia is shaping international law (swaying) or forging its own, potentially violative path (straying). I will distil some of the key debates in international law and identify Australia’s contribution to the law through its state practice and the jurisprudence of international human rights bodies. 

The event will be held on Wednesday 2 December 2020 from 8:00 AM to 9:00 AM CET via Zoom and is free of charge. Registration is essential and may be done through this link.

International Law, Australia, and the Antarctic – Ankit Malhotra

Antarctica, one of the world’s last great wildernesses, presents special challenges for international law. Fears that Antarctica would become a front in the Cold War catalysed agreement on the 1959 Antarctic Treaty which neither legitimised nor challenged the existing sovereign claims to the continent. The unique Antarctic Treaty System has provided the foundation for peaceful, harmonious, and effective governance. There are, however, new anxieties about the frozen continent and the Southern Ocean. Antarctica already feels the effects of climate change and ocean acidification. Claimant states assert rights to the Antarctic continental shelf and interest in Antarctic resources grows. Tourism brings new environmental and safety risks. China and other powers are increasing their activities, with some questioning the consensus of the ‘Antarctic club‘. Security concerns are increasingly discussed, despite Antarctica’s dedication to peaceful purposes. As visible, the law applicable to Antarctica has constantly adapted to meet new challenges and is a sophisticated, inclusive, dynamic, and responsive regime. Throughout history, countries have been wishing to claim it and expand their empires, even if that means overlapping territorial claims. The expansion was the heartbeat of Imperialism and during the Age of Imperialism and colonisation, the following claimants expressed keen interest. The Antarctic claimants are Chile, Argentina, the United Kingdom, Norway, Australia, New Zealand, and France. Nonetheless, there is left a section of unclaimed land, which is also the largest unclaimed section of land on earth. Most of these claims are recognized only by other claimants and not by the broader international community. 

Read More

Remedies And The Role Of Corporations: Learning From The Jukaan Gorge Explosion – Justin Jos

This piece examines whether business-driven remediation processes, such as Operational-level Grievance Mechanisms, should allow corporations to act as the remedy provider in cases of corporate human rights abuse.

Introduction

The blowing up of a cave in Jukaan Gorge by mining giant, Rio Tinto, for expansion of an iron ore mine in the Hammersley Ranges of Western Pilbara, caused huge public outrage in Australia and across the globe. Some experts argued that the act of blowing up the cave was within the law while pointing out the deficiencies in the current local laws, especially Western Australia’s Aboriginal Heritage Act 1972. One deficiency in the Act is the absence of a statutory requirement ensuring traditional owners be consulted on matters pertaining to cultural heritage. As a fallout of the blast and growing investor pressure, the CEO of Rio Tinto along with two other senior executives had to resign from their positions. This step was welcomed by the National Native Title Council and hailed as the “first step to recovery”. After the announcement of a Senate inquiry and a visible public relations crisis, Rio Tinto pledged to conduct a review of its heritage management processes and subsequently released a document titled “Board Review of Cultural Heritage Management.” In this document, Rio Tinto expressed its unreserved apology and highlighted the priorities for change in its heritage management processes, including working closely with the traditional owners of the land, the Puutu Kunti Kurrama and Pinikura people (PKKP). However, the fact of the matter was that the damage had been done and the Aboriginal site lost. The remedy offered for heritage destruction was largely corporate driven with limited involvement of the state. The idea of inclusion of the corporate actor as part of the solution to a corporate wrongdoing is not novel. The United Nations Guiding Principles on Business and Human Rights  (UNGPs) provide some guidance on this. In the UNGPs, the notion of providing remedies through business-driven remediation processes is known as Operational-level Grievance Mechanisms (OGMs). The theoretical underpinning for OGMs is enshrined in Principle 29 of the UNGPs where it states that “business enterprises should establish or participate in effective operational-level grievance mechanisms.”

Read More

An inevitable reform, a long awaited solution: The establishment of the Australian Foreign Investment Regulatory Authority (AFIRA) – Bovas Johannan

The compliance framework under the Australian foreign investment regime undertaken by both the Foreign Investment Review Board (FIRB) and the Australian Taxation Office (ATO) are currently under the microscope for their lackadaisical approach in achieving the outcomes expected of a compliance framework. 

In 2014, the report on foreign investment in residential real estate by the House of Representatives Standing Committee on Economics provided a rather scathing assessment of the FIRB in the following words: 

“In practice the framework has been undermined due to poor data collection, along with a lack of audit, compliance and enforcement action by FIRB. Australians are entitled to expect that the rules are properly enforced and our committee recommendations strengthen the ability to do this.”

In 2020, not much has changed. The Productivity Commission shares a similar view while considering the spillover impacts of foreign investment:

On the negative side, competition from efficient foreign businesses can result in some Australian firms going out of business, and there are ongoing worries about whether investors generate negative social and environmental spillovers by not adhering to domestic regulations.

Having a robust compliance and enforcement mechanism in the post-COVID-19 era is important not only for delivering a system that arrests the flow of Australian fiscal resources—say in the form of tax evasion by deliberately restructuring companies to avoid Australian taxation liability— and intellectual property rights into foreign hands, but also for sending a message out to the investors that the investments will have solid legal endorsement in Australia and that predatory moves will not be tolerated.

Read More

Nuclear weapons have always been inhumane and unacceptable, soon they will be illegal – Tilman Ruff

On Saturday 24 October 2020, Honduras brought the number of nations ratifying the United Nations Treaty on the Prohibition of Nuclear Weapons (‘TPNW’) to 50. This milestone means that after 90 days have elapsed, on 22 January 2021, the treaty will enter into legal force, becoming international law and binding on the states that have ratified it, and all those which ratify in future. The treaty will, however, stigmatise nuclear weapons for all states, whether or not they join the treaty.

It is fitting that 24 October also marked the 75th anniversary of the founding of the UN, ‘determined to save succeeding generations from the scourge of war’. The very first resolution of the UN General Assembly, on 24 January 1946, established a commission to develop a plan for the elimination of atomic weapons.

This is a historic achievement and an enormous win for humanity and planetary health. Outlawing nuclear weapons is an essential step towards eliminating them, which is the only reliable way to prevent their use. 

Australians can take particular pride and encouragement from this achievement. The International Campaign to Abolish Nuclear Weapons (‘ICAN’) was founded in Melbourne by the Medical Association for Prevention of War in close collaboration with International Physicians for the Prevention of Nuclear War (‘IPPNW’). ICAN became the leading civil society coalition working with the majority of the world’s governments to conclude the TPNW. For this work, in 2017 ICAN became the first Australian-born entity to be awarded the Nobel Peace Prize

This effort involved many partners. Crucial among them was the world’s largest humanitarian organisation, the Red Cross/Red Crescent Movement, and particularly the International Committee of the Red Cross, which provided substantive input to many aspects of the treaty. 

Read More

Could the Rome Statute apply to those responsible for the Israeli settlements in the West Bank? – Simon McKenzie

It has been over 50 years since the beginning of the Israeli occupation of the Palestinian territories. It is estimated that there are approximately 750,000 Israeli settlers living in the West Bank and East Jerusalem, and they are supported, protected, and maintained by the Israeli state. Simon McKenzie’s new book discusses whether international criminal law could apply to those responsible for allowing and promoting the growth of these settlements, and examines what this application would reveal about the operation of international criminal law. 

In December 2019, Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), announced that there was enough evidence to open an investigation into alleged Israeli and Palestinian war crimes in the West Bank, East Jerusalem and the Gaza Strip. One of the most consequential parts of this investigation will be examining whether those responsible for promoting and maintaining the settlements in East Jerusalem and the West Bank – where an estimated 750,000 Israelis currently live – should be held criminally responsible under the Rome Statute. This raises complex legal questions, demonstrating the challenges of incorporating some parts of international humanitarian law (IHL) into international criminal law.

My book examines how the Rome Statute applies to the settlements in the West Bank through a close examination of two relevant Rome Statute crimes: the war crime of the transfer of population, and the war crime of unlawful appropriation of property. The crimes are based on international humanitarian law, and more specifically, the Fourth Geneva Convention prohibition on the transfer of population of the occupying power into occupied territory, and the 1907 Hague Regulations rules on the management of property during an occupation. The analysis shows that while the crime of transfer of population is a suitable vehicle for a prosecution, the lack of clarity in the underlying law will make the crime of appropriation of property much harder to prosecute. 

Read More

Representation as Gender Justice: Gender in the ICC’s Prosecutorial Election – Natalie Hodgson

This piece examines recent developments in the election of the International Criminal Court’s third Prosecutor with a focus on gender issues, in particular, the underrepresentation of female candidates and the vetting of candidates to ensure that they do not have a history of sexual harassment.

At the 2020 Assembly of States Parties meeting, States will elect the third Prosecutor of the International Criminal Court (ICC). At a time when the ICC is faced with increasing challenges, including hostile attacks from States, investigations into politically sensitive situations and limited financial and personnel resources to carry out its mandate, the decision on who will best serve the Court as Prosecutor for the next nine years is particularly significant. 

The election has been far from uneventful. After establishing a Committee on the Election of the Prosecutor (CEP) to receive applications, interview candidates and produce a shortlist for States to consider, there has been frustration with that shortlist, with Kenya arguing that the list is skewed in favour of a particular candidate. The deadline for the nomination period has been extended twice, with the most recent indication being that States are unable to reach a consensus on the shortlisted candidates and are considering introducing other candidates, possibly from the CEP’s longlist. 

Among these developments, gender issues have also featured significantly. This piece discusses two such issues and provides some suggestions for how they can be addressed in the short and long term – first, the underrepresentation of women among candidates nominating for the position of Prosecutor, and second, the vetting of candidates to ensure that they do not have a history of committing, condoning or ignoring sexual harassment. 

Read More

Claims and current developments in the South China Sea – Julia Cirne Lima Weston

This article provides an overview of the conflicting claims to the South China Sea and analyses developments in the area in 2020. The region’s relevance for the maintenance of world trade and connectivity makes it an indispensable area to study and on which to remain informed.

Why is it so important to talk about the South China Sea? The region, although fairly small, is the connecting point between important world trade hubs – connecting Asia to the West – through which major trade tonnage traverses. The region therefore functions as a ‘connecting tissue’ within world maritime trade, through which more oil passes than through the Suez and Panama canals (for further reading, see Robert Kaplan, Asia’s Cauldron: The South China Sea and the end of a stable pacific).  

Territorial claims to the South China Sea and international law

Due to its undeniable relevance to most, if not all, States, the South China Sea issue is often debated both in world politics and international law settings. The territorial dispute involving China, Taiwan, Vietnam, the Philippines, Brunei and Malaysia has been at the centre of the international discussion since 2012. The dispute concerns the region’s maritime territory and its so-called archipelagoes of small land, rock, or reef formations, namely the Spratlys and the Paracels. It also raises important questions concerning international law of the Sea and public international law in general. 

Read More

The ‘National Interest’ test and thinking beyond COVID-19 – Bovas Johannan and Umair Ghori

An opaque and vaguely defined standard may hold the key to national economic recovery in the post COVID-19 era. The problem is that no one knows the exact contours of a ‘gatekeeper’ test that will enable foreign investors to inject much-needed capital into the Australian economy. Traditionally, the Treasurer sought advice from the Foreign Investment Review Board (FIRB), a curious non-statutory advisory body responsible for generating a recommendation for the Treasurer based on the operative factors under the national interest. The final word rests with the Treasurer. 

When the Foreign Acquisitions and Takeovers Act 1975 (Cth) was being debated in the Parliament, it was suggested that the ‘national interest’ criterion should be assessed by reference to a variety of operative factors such as net economic benefits to Australia to justify the change in foreign control, whether the foreign investor was expected to follow practices consistent with Australian expectations and whether the proposal would be consistent with the Government’s policy objectives. In assessing these matters, it was suggested during parliamentary debates that the Government would look at factors such as Australian participation in ownership, control, and management as well as the interests of employees, shareholders, and creditors.

Read More

The public order exception in international trade, investment, human rights and commercial disputes – Zena Prodromou

In her new book, The Public Order Exception in International Trade, Investment, Human Rights and Commercial Disputes, Zena Prodromou analyses the application of the ‘public order’ exception to various legal obligations in international dispute resolution. In this post, Zena outlines the origins of the research and the key findings. In the context of the global coronavirus pandemic and the imposition of unprecedented restrictions in the name of public health, the book is a timely examination of the meaning and application of the concept of ‘public order’ under international law.

Read More