Publication of Australian International Law Journal Vol. 25 (2018) – Part 1

The International Law Association (Australian Branch) is proud to announce the publication of Volume 25 of the Australian International Law Journal. This Special Volume compiles selected papers presented at the International Law Association’s 78th Biennial Conference held in Sydney, Australia from 19 to 24 August 2018.

From its modest beginning in 1983 as Australian International Law News, the Australian International Law Journal has become a peer-reviewed law journal of international standing with contributions from prominent individuals in the field. Articles published in the Journal cover a wide range of topics of public and private international law. The Journal is currently edited by Professor Anthony E Cassimatis AM of the TC Beirne School of Law at The University of Queensland.

This post, the first of two, shares abstracts of the contributions available in the Special Volume. To read the contributions, visit the International Law Association (Australian Branch)’s website to become a member, or subscribe to the Journal.

Responsibility Rising from the Rubble: Lessons from the Bangladesh Accord for Arbitration of Business and Human Rights Disputes – Judith Levine and Ashwita Ambast

This article explores lessons learned from two recent arbitrations brought by global workers unions against fashion companies pursuant to the 2013 Accord on Fire and Building Safety in Bangladesh. The cases, administered by the Permanent Court of Arbitration in The Hague, were the first publicly known arbitrations of their kind dealing with business and human rights. The first part of this article sets the cases in the context of the PCA’s evolving mandate in facilitating resolution of multi-stakeholder disputes. The second part reviews developments in the realm of business and human rights generally, with a focus on the third pillar of the UN Guiding Principles on Business and Human Rights, access to remedy. It also sets out key provisions of the Bangladesh Accord, which was a ground-breaking example of a legally binding instrument offering a genuine access to remedy for victims of human rights violations. The third part of the article recounts the progress of the Bangladesh Accord arbitrations and reflects on lessons from the experience, including those relating to consent, confidentiality, and coordination of multiple claims. Finally, the article considers the Bangladesh Accord as a model for resolving business and human rights disputes in the future, within the fashion industry and beyond.

Technology and International Law: An Emerging Markets Perspective – Hannah Lim

The impact of technology on society is primarily discussed in the context of the developed world, where such technology was developed. This article considers how technology trends could impact developing countries and the unique challenges such communities face. This article argues that these struggles arise, in part, because our current technological capabilities allow actors to ignore State borders rooted in geography, thereby making it difficult for States to manage their jurisdiction. This posits a direct challenge to existing conceptions of jurisdiction and international legal personality under international law.

Investor-State Dispute Settlement Challenges and Reforms – Marina Kofman

This article will discuss the issues that have emerged over time in the field of investor-State dispute settlement (ISDS) as the field has matured, and the efforts being made by different stakeholders to reform the current system. The first part will give a brief background to the ISDS system. The second part will discuss the criticisms of the system that have emerged and the challenges of reforming the system given its structural aspects. The third part will outline the reform efforts currently underway, including the reform mandate of UNCITRAL Working Group III. The fourth part will look to the future, reflecting on some dynamics that have emerged during the UNCITRAL negotiations.

Freedom (?) of the High Seas: Some Preliminary Remarks on a Venerable Old Concept – Vincent Cogliati-Bantz

Et la mer et l’amour ont l’amer pour partage,

Et la mer est amère, et l’amour est amer,

L’on s’abîme en l’amour aussi bien qu’en la mer,

Car la mer et l’amour ne sont point sans orage.

Pierre de Marbeuf (1596-1645)

There is a famous paradox in mathematics according to which the sum of natural numbers 1+2+3 +…∞ , is not, contrary to instinctive popular belief, an infinite number, but –₁‒ ₂. . The Ramanujan summation, as it is called, is not the subject of this article. Yet, it seems that there is something equally paradoxical about the freedom of the high seas: while we continue to advocate the freedom of the high seas as a structuring principle, neither its content, nor the limit to its exercise, has received any consensual understanding. This article therefore aims to make some tentative remarks on the role of freedom in the modern law of the sea and its relationship with competing values.

The Due Diligence Principle from International to Domestic Law: Applying the Principle in Practice – Nicola Pain and Brigitte Rheinberger

Due diligence is an emerging principle of public international law requiring States to ensure that activities carried out in their jurisdiction do not cause harm to other States. It has developed as a variable and flexible concept responsive to the level of risk posed by a particular source of environmental harm and the means available to prevent such harm. The principle may require States to adopt certain rules or measures or conduct environmental impact assessment inter alia. This article considers how the due diligence principle may usefully inform or is already incorporated in some respects in Australian environmental law. Elements of due diligence which are already part of Australian environmental law such as the precautionary principle and the prevention of harm through the use of environmental impact assessment will be discussed. The regulation of the Murray Darling Basin and the Montara Oil Spill incident in 2009 in the Timor Sea provide useful case studies of how implementing due diligence principles could further improve Australia’s environmental laws.

Role of Non-State Actors in the Paris Agreement and the Development of International Law – Hitomi Kimura

This article analyses the role of non-State actors, especially of cities and companies, in the Paris Agreement in the context of development of international law. In spite of President Trump’s decision to withdraw from the Paris Agreement, initiatives by local governments, cities, companies, investors and universities are notable in keeping to the initial US’ pledge. These bottom-up initiatives support the UN Framework Convention on Climate Change (UNFCCC) process toward effective implementation of the Paris Agreement, but at the same time, pose fundamental questions about the role of non-State actors in the development of international law, which has been traditionally based on State actors. The traditional international law focus on States’ obligations does not include consideration of the positive contribution which non-State actors make to achieving respect for international obligations such as those contained in the Paris Agreement. Expansion of transnational networks by non-State actors may create and reinforce the State and international legal regimes without confronting or challenging traditional international law, in particular, if those private and local government connections are proactively linked with national government networks. In the climate arena, non-State actors are no longer just indirectly affecting international law-making, and they could be key players in this process.