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 second 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.
Civil Society Organisations’ Role in the Development of International Law through Strategic Litigation in Challenging Times – Tawanda Hondora
Many Civil society organisations (‘CSOs’) are now using strategic litigation to realise their strategic goals and to influence the development of progressive rules of domestic and international law. Despite its growing popularity, this field of practice has not benefitted from detailed analyses, and practitioners are yet to produce one generally accepted definition. In addition to providing a working definition, this article argues that CSOs which use strategic litigation as a change-influencing tool should: (a) collaborate and address inherent weaknesses in the predominant fragmented strategic litigation model; (b) increase the number and diversity of litigation jurisdictions and forums; and (c) devise effective strategies to counter threats posed by Strategic Lawsuits Against Public Participation (SLAPPs) and the invariably high costs of strategic litigation.
Filling the Gap: The New Regime of Responsibility for Armed Non-State Actors – Agata Kleczkowska
The aim of this article is to explore whether ANSAs as such may bear direct responsibility for their violations of international law. It undertakes the task of both reconstructing the current state of law when it comes to the responsibility of ANSAs, as well as submitting a proposal for a model of direct responsibility of ANSAs. Section II compares the current regulation (or lack thereof) of responsibility of ANSAs with the regimes of responsibility of States and international organisations under international law. Section III examines how ANSAs may currently be held responsible under international law. The final section seeks to build a model of direct responsibility of ANSAs under international law, drawing on the conclusions from the previous parts. At the same time the article also pays attention to the fact that the situation of different ANSAs is diversified, examining separately the status of insurrectional movements and de facto regimes created by ANSAs.
Human Rights for Regulators: Using International Standards to Assist in Domestic Regulation – John Southalan
Government agencies and decision-makers can, and should, make more use of international human rights standards in their work. International human rights law is often seen as something only for the government’s ‘Foreign Affairs’ agency (to negotiate/decide whether to commit the State) or the legislature (to enact those parts of international law which they choose, thereby making it ‘domestic law’). There are, however, three ways in which regulators can use international human rights in furthering domestic regulatory aims: (1) where domestic law specifies a discretionary decision-making power (eg to an agency/minister in granting a licence/application, or a broad ‘public interest’ criteria in exercising governmental power) – the State’s international human rights obligations should inform the government’s discretionary decisions; (2) supporting the growing ‘business and human rights’ mechanisms, with regulators ensuring (to the greatest extent legally possible) their actions regarding business operations complement the human rights’ responsibilities that business needs to meet; and (3) as a ‘defence’ against attacks on regulatory initiatives, in responding to legal challenges (including those raised in the course of investment arbitration) to public health and environmental regulation – international human rights obligations have assisted in responding to some of these claims. This article examines these three aspects, in explaining why and how domestic regulators can use international human rights standards.
Protecting Children from Unintended Effects of Return Orders under the 1980 Hague Convention – Rosa Saladino
This article advocates for proper consideration to be given to the welfare of the individual child in proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘1980 Convention’). Such an approach will bring the 1980 Convention into line with the United Nations Convention on the Rights of the Child (‘UNCRC’) and address the paradigm shift, which has occurred at least since 1999, from abducting non-custodial father to abducting custodial mother. The 1980 Convention was based on the paradigm of the frustrated access father abducting the children in order to assert his rights to an ongoing relationship with them. This is clear from the International Social Services study, which was commissioned for the 14th session of the Hague Conference concerning the 1980 Convention. The article reviews research on the wellbeing of children who have been the subject of international parental child abduction and argues for a shift in focus in the conduct of Hague Convention matters from a pure rights based inquiry to one which gives a greater role to the welfare of the individual child rather than the welfare of children in general and advances some suggested measures that in the light of the research may assist in minimising harm to individual children involved in Hague Convention proceedings.
Introduction to the Forums in Resolving International Aviation Disputes – Luping Zhang
This article will offer an overview of forums in resolving international aviation disputes. It will first address the significance of the topic by identifying the special features of aviation and market growth in aviation. It will then define the scope of the topic, which includes disputes at three levels of governance: State-to-State disputes, State-to-airline disputes and airline-to-airline disputes. Further, it introduces potential forums: International Civil Aviation Organization (‘ICAO’) Council, International Court of Justice (‘ICJ’), ad hoc arbitration tribunals, Dispute Settlement Body (‘DSB’) in World Trade Organization (‘WTO’), International Centre for Settlement of Investment Disputes (‘ICSID’), and Court of Justice of the European Union (‘CJEU’).
A Survey of the Jurisdiction Rules in Unimodal Transport Conventions and Their Impact on International Multimodal Transport of Goods Contracts – Ling Zhu and Xiaojing Li
Given the fact that uniform liability rules for international multimodal transport contracts of goods are still lacking, it is important to undertake a holistic study of the rules for resolving issues that may arise relating both to jurisdiction and to dispute resolutions in a contract for the international multimodal transport of goods. This article thus carries out a general survey of jurisdiction rules in the unimodal transport conventions and discusses the possible impacts of those rules on international multimodal transport of goods contracts. It concludes that, unless the parties have clear and unequivocal agreements in their contracts, a set of jurisdiction rules for contracts for the multimodal transport of goods is both necessary and important.
Extending a Collective Human Right to Address A Global Challenge: Self-Determination for Refugees, Asylum Seekers and Stateless Persons – Amy Maguire and Amy Elton
Forced human displacement is a significant challenge for global society, with 68.5 million people displaced by conflict or persecution at the end of 2017. This challenge is both massive in scale and highly complex, with the human experience of displacement varying globally for refugees, asylum seekers and stateless people. Nation States are increasingly adopting securitised responses to large-scale human movement that prioritise territorial integrity and border regulation over human rights and wellbeing. No existing international legal mechanism enables forcibly displaced people to interact productively with States or international organisations.
This article grapples with the development of international law in this highly challenging context. It focuses particularly on the collective human right of self-determination, which was most frequently engaged during the decolonisation era. We question whether the right of self-determination should be extrapolated from its historical context to enable forcibly displaced people to communicate their aspirations. This proposal sees merit in countering State-centric discourses in international law with the lived experiences of some of the world’s most vulnerable populations; in particular refugees, asylum seekers and stateless persons. As a founding principle of the international human rights framework, can self-determination be deployed to generate more durable and humane responses to forced displacement?