The wording of s 18C of the Racial Discrimination Act 1975 (Cth) (“RDA”) is once again the subject of heated political debate, after Liberal Senator Cory Bernardi put forward a motion to rewrite the section.
In July 2015, the United Nations Human Rights Council issued Resolution 29/22 on the protection of the family as the natural and fundamental group unit of society. The Human Rights Council requested that the Office of the High Commissioner for Human Rights (OHCHR) prepare a report on the protection of the family and present it at the 31st session of the Human Rights Council. Such a report is a relevant step forward for lesbian gay bisexual and transgender (LGBT) parent-families’ rights within the United Nations aegis.
Resolution 29/22 focused on issues related to single-headed households, protection of children, disparity of household responsibilities between men and women and the protection of disabled members of families. To prepare the report, a note verbale was sent; 24 states and 81 civil society organisations responded with their input to the OHCHR. In particular, Denmark pointed out that Resolution 29/22 does not ‘properly recognize [sic] the fact that various forms of families exist’. Furthermore, the United Kingdom, the United States, and organisations such as Sexual Rights Initiative, and OutRight Action International, asked the OHCHR to consider LGBT parent-families.
Indeed, in the report submitted by the OHCHR to the Human Rights Council pursuant to item 37 of Resolution 29/22 (OHCHR report), the OHCHR states that there is no definition of ‘family’ in international law, and that there is a general consensus within UN documents that the concept of ‘family’ must be understood in a ‘wide sense’. While states maintain a margin of appreciation in defining the concept of family (para 26), the report encourages states to ensure that children born in de facto unions and in LGBT parent-families have equal rights of those born from married and heterosexual couples (para 42).
However, the OHCHR report also reiterates that men and women of full age have the right to marry (para 28. See also article 16 of the Universal Declaration of Human Rights and article 23(2) of the International Covenant on Civil and Political Rights (ICCPR)), and this right can only be understood to mean that a man can marry a woman and vice versa. Indeed, in 2002, the UN Human Rights Committee clarified in Joslin et al v New Zealand that the expression ‘men and women’ denotes that only different sex couples have the right to marry, because the drafters of the ICCPR considered marriage to mean an exclusively heterosexual institution (Luca Paladini, ‘Same-Sex Couples before Quasi-Jurisdictional Bodies: The Case of the UN Human Rights Committee’ in Daniele Gallo, Pietro Pustorino, Luca Paladini (eds) Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, Heidelberg, 2014) 533 at 545). Nevertheless, the OHCHR report also stresses that the Committee on Economic, Social and Cultural Rights has called upon states to provide some sort of legal recognition — for example civil partnership acts or legal recognition of de facto couples — for same-sex couples (OHCHR report, para 27).
The prohibition of discrimination on grounds of sexual orientation and gender identity is a politically controversial issue and a developing concept in international human rights law (Frederick Cowell and Angelina Milon, ‘Decriminalisation of Sexual Orientation through the Universal Periodic Review’ (2012) 12 Human Rights Law Review 341 at 344; Ronald Holzhacjer, ‘State-Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights’ (2013) 35 Law & Policy 1 at 8). In general, issues related to LGBT rights — particularly those related to LGBT family rights — trigger strong reactions from conservative/religious states and organisations. Indeed, conservative voices did not delay in expressing their disappointment with the OHCHR report. In February 2016, Global Helping to Advance Women and Children, the UN Family Rights Caucus and 26 organisations with consultative status at the UN Economic and Social Council submitted a written statement to the UN Secretary General (A/HRC/31/NGO/155) which maintained that the OHCHR report seeks to advance the status of LGBT relationships contrary to international law. The written statement continued to say that the claim that there is a general consensus within the UN on the term ‘various forms of families’ is ‘false and disingenuous’; and concluded by calling upon the OHCHR to edit the report by removing reference to the recognition of different forms of families.
In conclusion, the mention in the OHCHR report to different types of families, and the prohibition of discrimination against children born in LGBT parents-families, are much-needed steps forward in the advancement of LGBT family rights. However, at this point, it is crucial to see whether a second resolution on the protection of the family can evolve in a direction that reflects the sentiments expressed in the OHCHR report.
Giulia Dondoli is a PhD Candidate at Te Piringa — Faculty of Law of the University of Waikato.
The Editors would like to draw readers’ attention to an upcoming seminar in Sydney, hosted by the International Law Association and Baker & McKenzie. The seminar is on ‘Sea Level Rise and International Law’. A flyer about the seminar is available here — it is on Monday 10 August 2015, 12:00 pm to 2:00 pm at Baker & McKenzie’s Sydney office.
The speakers are all members of the ILA’s Committee on International Law and Sea Level Rise:
- Professor David Freestone (Executive Secretary of the Sargasso Sea Commission) — Committee Co-Rapporteur;
- Professor Rosemary Rayfuse (University of New South Wales) — Committee Member; and
- Professor Clive Schofield (University of Wollongong) — Committee Member.
The speakers will discuss the Committee’s work regarding the ‘consequences of sea-level rise on entitlements to maritime areas and on the natural environment’. They will also discuss the Committee’s draft interim report and future programs. Professor Rayfuse recently published a report on the Committee’s work on the ILA Reporter.
Australian members of the Committee:
- Professor Jane McAdam, UNSW Australia – Co–Rapporteur
- 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.
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).
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:
- 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);
- 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;
- Express agreement to confidentiality should specify the scope, extent, duration of the confidentiality obligation, the exceptions to it, and how it may be enforced;
- 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
- 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: firstname.lastname@example.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.
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.