Case Analysis – Plaintiff M68/2015 v Minister for Immigration and Border Protection – Esther Pearson


The High Court of Australia delivered its judgment in Plaintiff M68/2015 v Minister for Immigration and Border Protection on 3 February 2016. The primary issues raised in the case related to whether the plaintiff’s detention at Nauru was authorised by a valid law of the Commonwealth, insofar as it was a valid exercise of executive power under section 61 of the Constitution of Australia. However, the case also raised questions of private international law in relation to the laws and Constitution of Nauru. This article will focus on these questions.


The plaintiff was a Bangladeshi national who arrived in Australia as an ‘unauthorised maritime arrival’ (UMA) under s 5AA of the Migration Act 1958 (Cth) (the Act). She was detained and taken to Nauru on 22 January 2014 pending the resolution of her claim for refugee status pursuant to s 198AD(2) of the Act.

Upon arrival in Nauru, the plaintiff was granted a Regional Processing Centre visa (RPC visa). Pursuant to regulation 9(6)(a) of the Immigration Regulations 2013 (Nauru) (the Regulations), the plaintiff’s RPC visa specified that the plaintiff must reside at the Nauru Regional Processing Centre. As the plaintiff was a UMA taken to Nauru under section 198AD of the Act, the plaintiff was a ‘protected person’ under the Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru) (RPC Act). Under section 18(1) of the RPC Act, a protected person was not to leave the Centre without permission, and any protected person who attempted to do so committed an offence.

The Commonwealth submitted that its participation in the plaintiff’s detention was authorised by section 198AHA of the Act. That section applies when the Commonwealth enters into an arrangement in relation to the regional processing functions of a country, and provides that the Commonwealth may take any action in relation to the arrangement. Section 198AHA(5) defines ‘regional processing functions’ to include ‘the implementation of any law… by a country in connection with the role of the country as a regional processing country’.

Questions of law

The parties agreed on a number of questions for the consideration of the Court. The questions of present relevance are:

Question 3

Were the laws by which the plaintiff was detained on Nauru contrary to the Constitution of Nauru?

Question 7

If the plaintiff were returned to Nauru, would her detention there be contrary to [a]rt 5(1) of the Constitution of Nauru?

Article 5(1) of the Constitution of Nauru provides relevantly:

No person shall be deprived of his personal liberty, except as authorised by law in any of the following cases:

(h)        for the purpose of preventing his unlawful entry into Nauru, or for the purpose of  effecting his expulsion, extradition or other lawful removal from Nauru.

The plaintiff submitted that the RPC Act did not fall within the terms of article 5(1)(h) of the Constitution of Nauru because the detention was not ‘for the purpose of effecting… expulsion… or other lawful removal from Nauru’. The plaintiff further submitted that, for this reason, section 198AHA of the Act did not authorise the Commonwealth’s participation in her detention, as the regional processing functions of a country only include the implementation of laws that were lawful under the constitution of the regional processing country, thereby meaning section 198AHA did not apply to the arrangement between the Commonwealth and Nauru.


As identified by French CJ, Kiefel and Nettle JJ (at [48]), the questions and submissions raised the question of whether an Australian court should express a view as to the constitutionality of foreign legislation. French CJ, Kiefel and Nettle JJ — with whom Bell J agreed (at [102]) — found that while there may be some cases where an Australian court must make conclusions as to the legality of another country’s conduct under its own laws, such cases are rare and this was not one. Their Honours found that the plaintiff’s case concerned the Commonwealth’s conduct, and whether this was authorised by a law of the Commonwealth. Consequently, the Commonwealth’s defence did not require any consideration of the validity of the laws of Nauru (at [48]–[49]). Gageler and Gordon JJ came to similar conclusions (see [187] and [414] respectively).

Keane J considered in greater depth the questions and submissions put in relation to the laws of Nauru, and the construction of section 198AHA of the Act. His Honour quoted a passage of the majority of the High Court in Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 (the ‘Spycatcher case’), adopting the dictum of Fuller CJ in Underhill v Hernandez 168 US 250 (1897) (‘Underhill’) that, generally, ‘courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign’s own territory’. In the passage, their Honours also state that the principle rests partly on ‘international comity and expediency’ and is a principle of ‘judicial restraint or abstention’, ‘inherent in the very nature of the judicial process’.

His Honour then turned to consider the more recent Moti v The Queen (2011) 254 CLR 456 (‘Moti’). In that case, an accused was deported from the Solomon Islands to Australia. Commonwealth officials supplied the necessary travel documents knowing that the documents would be used to deport the accused in circumstances that were unlawful under the laws of the Solomon Islands. It was necessary for the High Court to determine whether the deportation was unlawful in considering whether to stay the prosecution of the charges against the accused on the ground of abuse of process. His Honour distinguished the present case on the ground that it was not necessary to determine the validity of the Nauruan legislation to resolve the interpretation of section 198AHA of the Act (at [257]).


The principle articulated by their Honours in the Spycatcher case is commonly referred to as the ‘act of state’ doctrine, although that term has been criticised as being ‘vague and unsatisfactory’: Potter v Broken Hill Company Pty Ltd [1906] HCA 88 (O’Connor J) (‘Potter’). It is clear that an act of state encompasses the passage of legislation: Lucasfilm Ltd v Ainsworth [2011] UKSC 39 at [87]. The present case affirms this.

The High Court’s consideration of the doctrine in the present case sits squarely with examinations of principle following the Underhill decision. In Underhill, Fuller CJ expressed the principle in absolute and universal terms. However, it has since been recognised that courts may consider the legality of foreign governments in exceptional circumstances. In earlier decisions, such as Potter, the High Court expressed the exception in terms of whether the legality of the acts of the foreign country arose incidentally to the main issue(s) in the action. In more recent decisions, such as Moti, the exception has been expressed in terms of whether the court needed to come to a conclusion as to the legality of the conduct as a necessary step towards the ultimate decision (at [53]). French CJ, Kiefel and Nettle JJ adopted this expression of the exception in the present case (at [48]).

The result of the High Court’s decision is that the lawfulness of the Nauruan legislation remains to be tested. It should be noted that, however, following the hearing of the matter, regulation 9(6)(a) of the Regulations, which restricted the movement of RPC visa holders, was repealed, and an amended section 18C was inserted into the RPC Act establishing an ‘open centre’ allowing asylum seekers to move freely in and out of the centre 24 hours a day, seven days a week. These changes may be critical to any future analysis of the validity of the legislation.

Esther Pearson is Assistant Editor of the ILA Reporter.

Racial discrimination in Australia: (lack of) protection for Muslims — Jennifer Tridgell


2015 brought an escalation of Islamophobia across the Western world. In the United States, Donald Trump called for creation of a Muslim register and restrictions upon Muslims entering the country. Worryingly, his inflammatory, and profoundly racist remarks resonated with many Americans, arguably by ‘merely indulging a [widespread] sentiment’ (Vox, 2015).

Meanwhile, Australian Muslims faced persistent abuse and discrimination, which intensified after the siege in Sydney’s Martin Place (AHRC, 2015). This is consistent with reports from the national Islamophobia Register. But 2015 also marked the 40th anniversary of the Racial Discrimination Act 1975 (Cth) (RDA).

In the words of Australian Race Discrimination Commissioner, Dr Tim Soutphommasane, this historic Act is not about punishing racism, but rather ‘protecting people against prejudice’. The RDA does not shelter Muslims, but only offers them ‘limited protection’, as a national consultation report by the Australian Human Rights Commission revealed. So why does an Act supposed to protect the most vulnerable groups in Australia from vilification, seem to fail?

A Matter of Definitions

For barrister Kate Eastman SC, the answer lies in delineating between the blurred definitions of race and religion. Whilst the RDA makes it unlawful to discriminate against a person on the basis of race, colour, descent, national origin or ethnic origin, it does not extend to religion (section 9). Yet since 1995, Jewish Australians have been comprehensively protected for sharing a common ‘ethnic origin’ (see for example the decision in Jones v Scully). This article calls for similar protection to be extended to Muslim Australians.

Uncertainty around scope of the term ‘ethnic origin’ creates difficulties for Australian courts, especially without clear definitions to guide statutory interpretation. Neither the RDA nor the treaty it incorporates, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), have defined the meaning of each ground for discrimination, such as ‘race’ or ‘ethnic origin’.

As Eastman notes, the ICERD Committee has argued that these terms are flexible and should be interpreted in light of contemporary circumstances. It asserted that religion is intertwined with issues of ethnic and racial discrimination, and expanded the scope of ICERD to encompass discrimination against Muslims, Jews and Sikhs, amongst others.

However, in Maloney v R the High Court of Australia rejected an approach to interpreting the RDA as a living or organic instrument. Rather than consider recent developments in international law, which could spark ‘informal modification’ (French CJ at [23]), the Court treated the RDA as an instrument of static meaning.

International Jurisprudence

Australia has largely followed two major cases for defining ethno-religious grounds of discrimination. First is the New Zealand decision of King-Ansell v Police, where the defendant was charged with vilification of Jewish people under New Zealand’s equivalent of the RDA. The Court treated ‘ethnic origin’ as a fluid concept, a ‘historically determined social identity’ (Richardson J at [543]) that stems from a common historical origin, and shared beliefs, customs and traditions.

Secondly, in Mandla v Dowell Lee the House of Lords ruled that a school was guilty of discrimination by refusing entry to a Sikh boy, who insisted on wearing his turban and not cutting his hair in compliance with school uniform standards. The majority favoured two different approaches. Lord Templeman took an essentialist stance to define Sikhs as an ethno-religious group based on ‘common colour and a common physique’. On the other hand, Lord Fraser treated ‘ethnic origins’ as a contemporary concept and social construct that evolves over time. By contrast, Australia’s treatment of ethno-religious identity has been inconsistent.

A Domestic Perspective

In New South Wales, courts have taken a narrow reading of ‘ethno-religious origin’ under the Anti-Discrimination Act 1977 (NSW). In Khan v Commissioner, Department of Corrective Services, an Indian Muslim prisoner claimed that refusal to provide halal food was discrimination based on his ethno-religious origin. His case was rejected, despite the fact that his Jewish inmates could request kosher food. Moreover, the Attorney-General of NSW expressly stated that the Act must recognise the link between race and religion, thereby deliberately clarifying that ‘ethno-religious groups such as Jews, Muslims, and Sikhs have access to racial vilification and discrimination provisions’. Despite the shortcomings of this approach, this case has not been overturned and remains the leading decision on ethno-religious discrimination in NSW.

To address this, the RDA should be amended to ensure greater protection for Muslims. Currently in Australia, it is sufficient that a person’s ‘ethnic origin’ is one of the factors in discrimination (RDA, section 18B). Yet where it is the sole factor, the victim does not have protection available. Additionally, attempts to distinguish between an individual’s religion and ethnic origins are often arbitrary and confusing. By either amending the RDA or adopting a national multicultural Act, as Professor Andrew Jakubowicz proposes, we can offer more comprehensive protection for vulnerable groups from ethno-religious discrimination in Australia.

Regardless of which approach is favoured, our government should consult all members of the community, including Muslims, on how to strength legislative protection. Finally, implementation is most effective when law is widely known and respected. Community education programs can raise awareness of the RDA, whilst also shaping a culture where racial discrimination is widely denounced.


Upon the enactment of the RDA, Prime Minister Gough Whitlam declared that it was a historic Act, which would ‘entrench new attitudes of tolerance and understanding in the hearts and minds of the people’. Over 40 years later, these sentiments are just as important today, especially as Islamophobia continues to sweep the Western world. If Australia is truly a land of the ‘fair go’, then Muslims clearly should have statutory protection from racial discrimination and vilification.

Jennifer Tridgell is a final year law student at Macquarie University and Assistant Editor of the ILA Reporter. She has previously worked at the Australian Human Rights Commission in the Race Discrimination team. This article is written in her personal capacity.

ILA Event – Sydney – International Law and Sea Level Rise, 9 March 2016

On 9 March 2016, the Andrew & Renata Kaldor Centre for International Refugee Law, the International Law Association (Australian Branch) and the UNSW Environmental Law Group will co-convene an expert panel discussion on International Law and Sea Level Rise: Human Rights, Displacement, Maritime Zones and Biodiversity.

The panel of expert speakers include:

  • Associate Professor Stephen Humphreys, LSE: international human rights law;
  • Professor Jane McAdam, UNSW: international law and forced migration; and
  • Professor Rosemary Rayfuse, UNSW: international environmental law and law of the sea.

The event will be chaired by Christopher Ward SC, President of the Australian Branch of the International Law Association.

The event will start at 1 pm and finish at 2 pm and will be held at the Law Staff Common Room, Level 2, Law Building UNSW (please see reception on Level 2 for directions).

The event is free. To register pleaseclick here.

ILA Event – Sydney – Peter Nygh Hague Conference Internship Award and 10 Year Anniversary

On 15 February 2016, a reception was held in Sydney at the offices of Baker & McKenzie to mark the 10th anniversary of the Peter Nygh Hague Conference Internship and to present the 2016 Peter Nygh Hague Conference Internship to Ms Reyna Ge.

The presentation was made by The Hon Michael Kirby AC CMG in the company of special guests Dr Willem Cosijn, Consul-General of the Netherlands, the Hon Mr Phillip Ruddock MP, Australia’s Special Envoy for Human Rights, Dr Christopher Ward SC, President of the ILA Australian Branch, Melissa Conley Tyler, National Executive Director of the Australian Institute of International Affairs, and Nicola Nygh, representing the family of the late Hon Dr Peter Nygh AM.

Ms Ge is a recent graduate of the University of New South Wales, and will be the 11th Peter Nygh intern to be sent to the Hague Conference on Private International Law, where she will contribute to the work of the organisation on the development of a new multilateral treaty on the cross-border enforcement of civil and commercial judgments.

The Peter Nygh Hague Conference Internship is an award in memory of Dr Nygh, a leading international lawyer, former judge of the Family Court of Australia and an Australian delegate to and rapporteur of the Hague Conference. In 2002, Dr Nygh was appointed a Member of the Order of Australia in part for service to international law, particularly through honorary assistance to the Hague Conference.

The award provides a post-graduate student or graduate with the rare opportunity to travel to The Hague and work in the area of private international law.

The ILA Australian Branch is proud to support the Peter Nygh Hague Conference Internship, together with the Australian Institute of International Affairs, and is delighted to join in celebrating this significant milestone and the 2016 award to Ms Ge.

For more on the Peter Nygh Hague Conference Internship, click here. For more on the current work programme of the Hague Conference, click here.

What’s the Big Deal? Legal Implications for Australians in the wake of the TPP — Anna John

The final stages of the Trans Pacific Partnership (TPP) negotiations were well-publicised in Australia, albeit hazy with regard to the implications of the agreement. Negotiations between Australia, the US, Japan and nine other Asia-Pacific countries over the mammoth deal have been ongoing for seven years. From an international law point-of-view, the fact that an agreement has been reached is in itself laudable.

DFAT has said that outcomes from the conclusion of the TPP include new market opportunities for exporters and investors, increased transparency of regulators frameworks, greater certainty for businesses, improved access for regional supply chains, and a reduction in bureaucratic processes. However, reactions to the deal so far have been mixed, and key economic commentators have concluded that the advantages and the disadvantages of the TPP are largely unremarkable (see for example, opinions by Ross Gittins, Joseph Stiglitz and Adam S. Hersh). Major changes to existing legislation as a result of the TPP are unlikely. There are, however, legal implications to be aware of.

Investor-state dispute settlement arrangements

One of the most contentious issues appears to be the investor-state dispute settlement (ISDS) mechanisms in the TPP. Australia initially maintained that it would not accept any arbitration mechanisms for investor-state dispute settlements. However, the final text of the TPP reveals that Australia has conceded to the ISDS provisions, which allow for the establishment of an arbitration tribunal specifically to adjudicate on claims arising from the operation of the TPP. As a result, foreign investors will be able to bring claims against a participating TPP country.

ISDS mechanisms can enable foreign investors to attack legislation enacted for the protection of the public interest. The best example of such a such a scenario is the Phillip Morris litigation. One of the avenues Phillip Morris used to challenge Australian plain-packaging legislation was the ISDS mechanism in the 1993 Australian bilateral investment treaty with Hong Kong. Recently, the Permanent Court of Arbitration dismissed the case, agreeing with Australia’s position that it did not have jurisdiction to hear the case.

Notably, the TPP disallows tobacco companies to challenge public health legislation. So Phillip Morris, for example, will not be able to seek relief under the TPP. Nevertheless, such free trade agreements can stand in opposition to public interest legislation. Article 9.15 of the the TPP’s Investment Chapter provides that a signatory party is not prevented from legislating in the public interest. However, there is a clause allowing non-discriminatory public welfare legislation to be challenged ‘in rare circumstances’, at appendix 9-B, clause 3(b). Effectively, this can give rise to challenges against legislation that protects legitimate public welfare objectives.

Intellectual property

The Intellectual Property Chapter of the TPP was crucial to the conclusion of the negotiations, especially for the Australian delegation.

The TPP and pharmaceuticals

One of the central issues was the length of the data exclusivity period, especially for biologics. Biologics are a type of medicine made of protein-producing cells found in living organisms, and are used to treat a number of illnesses, including diabetes and cancer. Generic versions of biologics, known as biosimilars, can be manufactured in Australia after a minimum of five years since the release of the biologic. This is known as the data exclusivity period.

The US pushed for a twelve-year minimum data exclusivity period during the negotiations. However, according to the final text of the TPP, the agreed data exclusivity period is five years. Since this is the same level of protection that is afforded to biologics under Australian legislation, there is no real impact here.

The TPP and copyright

Once again, it is unlikely that there will be any major change to domestic copyright laws. DFAT has confirmed that provisions under domestic legislation relating to copyright terms, patents and Internet Service Provider liability are all consistent with the TPP’s standards. Notably, there will likely be no introduction of new civil or criminal penalties for individuals who download movies illegally.

The biggest legal implication here for the Asia-Pacific region involves the TPP’s provisions on counterfeit and pirated goods. The TPP requires signatory countries to legislate against the use of counterfeit and pirated goods. This includes expanding the range of offences for counterfeit or pirated labels and packaging, broaden powers to allow the forfeiture of counterfeit or private goods, and ensuring that adequate damages are available for copyright and trademark infringement. Within the Asia-Pacific region, this may have large implications, given that the large majority of counterfeit goods originate from the Asia-Pacific region (mostly from China, but also from Malaysia, a TPP signatory). These countries will now be required to legislate according to the TPP’s provisions. This is a welcome development for Australia.

Finance Expats in the Asia-Pacific Region

Under the TPP, the Australian financial sector has more opportunity to integrate with those in the Asia-Pacific region. Australian bank and asset managers have been seeking expanded growth in Asia, with a focus on financial services exports. This includes lowering restrictions for Australian professionals to work in Australian financial companies overseas. Some countries within the Asia-Pacific region limit the number of foreign persons that can hold senior managerial positions in a financial institution in their country. The TPP places a cap on these restrictions, and also provides for special visa arrangements that will allow such professionals more certainty during their stay overseas. This is outlined by DFAT, announcing that Australian financial institutions will be ‘guaranteed’ the option to transfer specialists and managerial staff to their overseas branches for extended periods. Conversely, such provisions will also lead to an increase in financial services (and expats) from Asia-Pacific countries.

Where does the TPP leave us?

Overall, the TPP is a good deal for Australia, and promotes Australian involvement in the Asia-Pacific. Legally, the biggest uncertainty is what the ISDS provisions will entail. While an exception has justifiably been made for tobacco companies, the clause allowing public welfare legislation to be challenged is perturbing. For example, under a similar ISDS mechanism, a US investor was able to sue Costa Rica on the basis that its environmental legislation impeded their business interests, thus contravening a free trade agreement. As has been pointed out, ‘tobacco control measures are not the only policies worth protecting’. Litigation against public welfare legislation is detrimental to the public interest, can encroach on national sovereignty in a negative way, and could ultimately lead to the public expenditure of millions in legal fees.

A further (albeit political) consideration for Australia is its relationship with the US. Australia has an important role to play in the imminent economic dominance of the Asian countries. A criticism often brought against the TPP is that it preserves US interests in the Asia-Pacific region in the face of growing Chinese influence. Tellingly, the negotiations (released on Wikileaks)showed a reluctance on Australia’s part to step away from its alignment with US interests and establish itself as an important regional player in its own right. For example, Australia’s position in the negotiations lined up with the US 64 times. This was higher than its alignment with the next highest, Peru (54 times) and Singapore (51 times). Additionally, Australia ranked second last in terms of the support drawn by its proposals. The dominance of Asia-Pacific region should lead to a convergence in regional interests, but Australia appears to be taking a step away from this direction.

The TPP is an important step towards economic integration within the Asia-Pacific region. This is not without legal implications, and while many aspects of the deal are welcome and needed, a better outcome could be achieved in others.

Anna John is a final year Law/Arts student at the University of Queensland. She works as a research assistant at the T. C. Beirne School of Law. Anna was recently also a guest researcher and research assistant at the Max Planck Institute of Comparative Public and International Law in Heidelberg, Germany.

International Court of Justice rules on preliminary objections in Bolivia–Chile territorial dispute — Timothy Gorton


On 24 September 2015, the International Court of Justice (ICJ) handed down judgment in the preliminary objections phase of a dispute between Bolivia and Chile.  Contrary to Chile’s submissions, the ICJ determined that it had jurisdiction to consider the dispute, which concerns whether Chile is obliged to negotiate and grant sovereign access to the Pacific Ocean to the otherwise landlocked Bolivia.  The proceedings are interesting not only because of the Bolivia’s intriguing claim, but also because they relate to peace treaties signed by the parties at the start of the 20th century.

Context of the dispute

As The Economist succinctly puts it, ‘Bolivia has all the trappings of a maritime power except an actual coastline’, having a merchant navy and a National Day of the Sea. Indeed, at independence in 1825, Bolivia had territorial access to the Pacific Ocean.  In 1879, territorial disputes over the Atacama Desert (and the valuable mining opportunities within) led Chile to declare war on Bolivia and its ally Peru. An initial armistice between Chile and Bolivia was signed in 1884 and a final settlement was reached in 1904 (1904 Peace Treaty), under which Bolivia ceded its coastal territories and became a landlocked country.  Bolivia has attempted to reclaim the territory through diplomatic means for the past century, most recently inserting its claim into its 2009 Constitution (see article 267 of the Constitución Política del Estado de Plurinacional de Bolivia).

In 1948, Bolivia and Chile signed the American Treaty on Pacific Settlement (also known as the Pact of Bogota), a treaty committing states to the peaceful resolution of disputes and conferring jurisdiction on the ICJ (under article XXXI).  Relevantly, article VI of the Pact of Bogota states that the procedures established by the treaty

may not be applied to matters already settled by arrangement between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty.

The effect of this article is to exclude from the ICJ’s jurisdiction any dispute that had been settled prior to the Pact of Bogota.

History of the proceedings — Application by Bolivia

Bolivia filed its application with the ICJ in April 2013, requesting that it make declarations that Chile is obliged to negotiate sovereign access to the Pacific Ocean for Bolivia, in good faith, and that Chile had breached this obligation.  The ICJ’s jurisdiction over the dispute was based on article XXXI of the Pact of Bogota.

The substance of Chile’s obligation is founded on a number of diplomatic exchanges and resolutions since the 1904 Peace Treaty, including:

  • an exchange of notes (1950) and Memorandum of Understanding (1961) between the two governments to the effect that the two states should enter into negotiations for Bolivia to be given its own access to the Pacific Ocean (Application [17]–[19]);
  • Negotiations in 1975 between the two governments, during which Chile reaffirmed its in-principle preparedness to negotiate with Bolivia. During negotiations in 1986 Chile had rejected Bolivia’s proposals (Application [20]–[22]);
  • A joint agenda in 2006 by the two governments on issues that included Bolivia’s maritime access (Application [26]);
  • Resolutions of the General Assembly of the Organization of American States urging the two states to negotiate coastal access for Bolivia (Application [23]–[25]); and
  • Statements and requests by the President of Bolivia (Application [27]–[29]).

The effect of these events as alleged by Bolivia is that

Chile has committed itself, more specifically through agreements, diplomatic practice and a series of declarations attributable to its highest‑level representatives, to negotiate a sovereign access to the sea for Bolivia.  Chile has not complied with this obligation and, what is more, at the present date Chile denies the very existence of its obligation (Application [31]).

History of the proceedings — Objection by Chile

Chile filed a preliminary objection  to Bolivia’s application in July 2014, claiming that:

  • The nature of the dispute concerns territorial sovereignty and Bolivia’s access to the Pacific;
  • These are matter that were settled conclusively in the 1904 Peace Treaty, and any subsequent negotiations or statements concern the same substantial matters; and
  • Consequently, the dispute is not justiciable by operation of article VI of the Pact of Bogota, which excluded disputes already settled by treaty or award.

In its response, Bolivia stated that Chile has misconstrued the subject matter of the dispute — it is about obligations to negotiate that are separate from the 1904 Peace Treaty.  The judgment of the ICJ made in December concerned whether Chile’s objection was correct and what the proper subject matter of the dispute was.

Judgment of the majority

The ICJ handed down several judgments, but ruled 14–2 in favour of Bolivia, rejecting Chile’s objections.  First, the majority judgment rejected Chile’s characterisation of the subject matter of the dispute.  The Court determined that it is not being asked to determine the character of what Bolivia’s access to the ocean is or what the outcome of any negotiation should be.  Instead, the character of the dispute is whether Chile, by its actions, has created an enforceable obligation to negotiate with Bolivia and whether Chile has breached that obligation (Majority Judgment [34]).

The majority rejected Chile’s second objection that the subject matter of the dispute was excluded from consideration because of article VI of the Pact of Bogota and the 1904 Peace Treaty.  Chile had submitted that the 1904 Peace Treaty was a conclusive territorial settlement, that it fell into the excluded categories in article VI and this dispute, by covering the same matters, was also excluded.  Bolivia had responded that the obligation and negotiations arose independently of the 1904 Peace Treaty and were therefore not excluded.  Given the conclusion drawn by the majority on the characterisation of the dispute, the majority agreed with Bolivia.  Bolivia’s application concerns a legal obligations created subsequent to and independent of the 1904 Peace Treaty, and therefore is not excluded by article VI (Majority Judgment [50]).

Additionally, the majority noted that it was satisfied that Chile’s objections were preliminary in character and could be properly addressed at an interlocutory stage.  The ICJ has three options of addressing a preliminary objection: upholding it; rejecting it; or holding that it is not exclusively preliminary in character and postponing consideration of the objection to the merits phase.  The majority considered that on the facts before it, it could rule whether the disputed issues had been settled by the 1904 Peace Treaty without making findings on the merits of the overall dispute.  Therefore, it was suitable to dispose of Chile’s objection at this time (Majority Judgment [52]–[53]).

Other opinions

The ICJ published four other opinions.  Briefly, they were:

  • Declaration of Judge Bennouna — His declaration criticised two paragraphs of the main judgment , wherein the majority had provided their opinion on a Bolivian subsidiary argument. Because the Majority’s decision rendered Bolivia’s subsidiary argument moot, Bennouna considered that discussion by the majority ‘pointless’. Having rejected Chile’s objection, it had implicitly regarded it as preliminary and there was no need to consider the subsidiary argument.
  • Separate Opinion of Judge Cancado Trindade — In a substantial separate opinion (that agrees with the majority’s orders), Judge Cancado Trindade gave an expanded treatment of the jurisdictional regime of the Pact of Bogota and article 79 of the ICJ Rules (which deals with preliminary objections), considering the majority’s consideration ‘far too succinct’. The separate opinion concluded that Chile’s objection is not of exclusively preliminary character and that its arguments should therefore be considered in the merits phase.
  • Declaration of Judge Gaja — His declaration also noted that disposing of Chile’s objection was not an exclusively preliminary matter. Judge Gaja considered that the Court could not have made a decision on jurisdiction without examining whether the matter purportedly settled by the 1904 Peace Treaty had been subsequently ‘unsettled’. This would have required consideration of the merits of the parties’ arguments and therefore the Court should have instead ruled that the objection should be heard as part of the merits phase.
  • Dissenting Opinion of Judge ad hoc Arbour — Arbour had been selected by Chile as its Judge ad hoc in the proceedings. In her dissent, she also considered that Chile’s objection was not exclusively preliminary and should have been postponed until the merits phase. In particular, she considered that the Court can only decide in the merits phase whether a Chilean obligation exists and whether the scope and content of that obligation falls within the exclusionary language of article VI.

A more substantial summary of the ICJ’s judgment and additional opinions is available here.

Moving forward

The ICJ has requested that Chile file its Counter-Memorial by 25 July 2016.  At this time, there is no further public indication of when the Court will hear the parties’ substantive arguments.  The dispute will remain of interest because of Bolivia’s unique argument that Chile has created an obligation to negotiate in good faith, and what the ICJ has to say about the existence or content of such an obligation may have ramifications for future diplomacy between states.

Timothy Gorton practices commercial litigation in Melbourne and is an Editor of the ILA Reporter.  He is a former Editor of the Melbourne Journal of International Law.  Any opinion expressed is the author’s alone.


32nd International Conference of the Red Cross and Crescent – Failures and Successes

States at the 32nd International Conference of the Red Cross and Red Crescent (RC), held in Geneva between 8 and 10 December 2015, failed to agree on a new mechanism proposed by the International Committee of the Red Cross (ICRC) and the Swiss government to strengthen compliance with International Humanitarian Law (IHL).

Between 2012 and 2015, the ICRC undertook extensive negotiations regarding strengthening legal protection for victims of armed conflict. These consultations were undertaken following the adoption of a resolution in 2011 at the 31st International Conference of the RC. The resolution acknowledges that respect for IHL is lacking and that, as it currently exists, IHL does not provide effective mechanisms to stop violations when they occur.

The consultation process focused on two distinct areas of work. One area focused on options for enhancing IHL in regard to detention in non-international armed conflict (NIAC) (detention track). The other area looked at strengthening general compliance with IHL by states and non-state armed groups (compliance track).

Based on the consultations, the ICRC prepared concluding reports on the compliance track and the detention track. The reports set out the discussions undertaken as part of the consultations, as well as the recommendations of the ICRC based on the consultations. The draft elements of the resolutions put forward by the ICRC on the compliance and detention tracks of work were circulated for feedback by States taking part in the International Conference, and, on the basis of the feedback received, the ICRC prepared and circulated official drafts to be considered at the Conference.

The resolution in regard to the compliance track of work involved setting up an annual meeting of States party to the Geneva Conventions to discuss best practices and share expertise. The official draft also provided for the periodic review of the work, functions and tasks of the annual meeting by participating States to ensure compliance with the guiding principles of the resolution. However, States at the 32nd International Conference failed to reach agreement on the terms of the resolution, and instead adopted a resolution that involves launching an inter-governmental process to explore ways to strengthen compliance with IHL. The outcome of the process is to be presented at the 33rd International Conference.

States succeeded in agreeing on a resolution regarding the detention track of work. The resolution encourages States to pursue further work in collaboration with the ICRC with the goal of producing a document of a non-binding nature that ensures IHL remains practical and relevant to protecting persons deprived of liberty in non-international armed conflicts.

Reforming Jurisdiction – Dan Svantesson

In many ways, the territoriality principle represents the jurisprudential core of our current thinking on jurisdiction in both public and private international law. However, its flaws and inadequacies are increasingly obvious and its application is particularly problematic in relation to the online environment. Further, there is an increasing appreciation that, in a globalised world, State responsibilities do not end at States’ territorial borders. This is particularly clear in areas such as human rights law, environmental law and space law.

A recent symposium issue of the American Journal of International Law Unbound explores a proposal I have put forward, aimed at reforming our thinking on jurisdiction. Put succinctly, my proposition is that the proper jurisprudential core of jurisdiction in both public and private international law can be summarised in the following principles:

In the absence of an obligation under international law to exercise jurisdiction, a State may only exercise jurisdiction where:

  1. there is a substantial connection between the matter and the State seeking to exercise jurisdiction;
  2. the State seeking to exercise jurisdiction has a legitimate interest in the matter; and
  3. the exercise of jurisdiction is reasonable given the balance between the State’s legitimate interests and other interests.

Although these principles may not have been presented and emphasised in this way before, they are of course not new. Rather they can be found throughout the body of public and private international law.

Using these principles as our point of departure, we should construct more detailed — field of law specific — norms. In other words, these principles are not intended to be directly applied as such by the courts. Instead, they will be important as a tool in the interpretation of the mentioned field of law specific norms to which they should give rise.

Furthermore, the practical consequences of the shift from our current territoriality focus to the proposed framework, if conducted carefully and diligently, will be minimal in noncontroversial areas of jurisdiction. For example, a State would obviously have a substantial connection to, and a legitimate interest in, a traffic offence occurring within its territory. The balancing principle between that State’s legitimate interests and other interests ought not to cause any complications in such instances.

The absolute majority of cases, whether or not they involve the internet, would not augur a conflict between territoriality on the one hand, and a substantial connection and legitimate interest on the other hand. At the same time, the proposed reform would make us much better equipped to address what are now controversial areas. It would allow us to think more creatively rather than just in a mechanically binary fashion. It would, for example, free us from the thinking that a State must always have a possible jurisdictional claim over all aspects of data that happen to be located on a server located within its borders (consider e.g. the ongoing dispute between Microsoft and the US Government).

As part of the symposium issue, three internationally recognised experts — Professors Cedric Ryngaert of Utrecht University, Tom Ginsburg of University of Chicago and Horatia Muir Watt of Sciences-Po Paris — wrote insightful pieces commenting on my proposal.

The introduction to the symposium issue can be found here and my proposal is here.

Professor Ryngaert’s piece can be found here; Professor Ginsburg’s piece can be found here; and Professor Muir Watt’s piece can be found here:

I will continue working on this issue and would welcome feedback. I can be contacted by email at

Dan Jerker B Svantesson, Professor and Co-Director, Centre for Commercial Law, Faculty of Law, Bond University; Researcher, Swedish Law & Informatics Research Institute, Stockholm University; Australian Research Council Future Fellow. The views expressed herein are those of the author and are not necessarily those of the Australian Research Council.

Médecins Sans Frontières launches the online Practical Guide to Humanitarian Law

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.

ILA Event – Sydney – End of Year Function

On Wednesday, 9 December 2015, the ILA (Australian Branch) is hosting an end of year function in Sydney. The event will feature presentations on the work of various international committees and study groups, as well as a talk by Dr Ralph Wilde entitled ‘Dilemmas Promoting Global Economic Justice through Human Rights Law’.

Drinks and canapes will be provided. For details of this event, see this flyer. If you wish to attend, please register by email to