Treaty Now: Why denial of Indigenous self-governance is internationally unjust – Thomas Brennan

04/03/2018 Editors Articles, Opinion

One of the most pointed criticisms levelled at the Turnbull Government in 2017 was its refusal to ratify the proposals of the Indigenous Referendum Council.

In the recommendations of their final report submitted to Prime Minister Turnbull, the Council proposed the creation of an advisory body representative of First Nation peoples to work with the legislature in order to address constitutional inequalities facing Indigenous Australians. The recommendations further included interpreting (or possibly even amending) the power to make laws with respect to ‘any race’ under s 51 (xxvi) as well as establishing an additional legislative committee to oversee the process of ‘truth-telling’ in drafting treaties with respect to Indigenous Australian Sovereignty at a Federal level. This relationship was encapsulated in the word ‘Makarrata’, which denotes a relationship of honesty and candour amongst leaders within the Yolgnu people of Arnhem Land.

(‘Request for Treaty’ by Michael Coghlan/Flickr)

The Turnbull Government defended their position on the grounds that the proposals were unclear in their intent and, in any event, could be so radical that they would create a parliamentary ‘third chamber’, which would prove divisive amongst Australians. This article will explore what models the Referendum Council may wish to pursue with reference to domestic and international notions of representation and sovereignty.

The Treatment of Bitcoin across Different Jurisdictions – Anja Kantic

12/02/201813/02/2018 Editors Analysis, Articles, Opinion

Bitcoin has taken the world by storm as the most popular cryptocurrency. Bitcoin is a means of peer-to-peer transacting with no middleman institutions or banks, no transaction fees and no delay in transfer between parties all around the world. This ease and convenience makes it a popular alternative to conventional banking, in spite of its fluctuating and volatile value.

It is useful to explore the treatment of Bitcoin across different jurisdictions in order to understand how it functions and how it will affect transacting in the future.

Nygh Internship 2018 awarded to Alexandra Kaye

25/01/201825/01/2018 Editors Articles, Events, ILA Updates, News

The International Law Association (Australian Branch) is pleased to announce the recipient of the 2018 Peter Nygh Hague Conference Internship is Alexandra Kaye.

(Nygh Internship 2018 award ceremony. L to R: Ms Nicola Nygh, Ms Alexandra Kaye, Mr Richard Broinowski, Dr David Bennett AC QC.)

The award was jointly presented to Ms Kaye by the International Law Association (Australian Branch) and the Australian Institute of International Affairs at a ceremony in Sydney shortly before Christmas. Ms Kaye commenced her internship with the Hague Conference on Private International Law in January 2018.

The Peter Nygh Hague Conference Internship was established in memory of the late Hon Dr Peter Nygh AM, a leading international lawyer and former judge of the Family Court of Australia.

The annual award provides support for a post-graduate student or graduate to work with some the world’s leading private international law practitioners at the secretariat of the Hague Conference on Private International Law.

More information about the annual Peter Nygh Hague Conference Internship can be found here.

ILA 2018 Conference – Registrations now open!

27/12/201717/01/2018 Editors Events, ILA Updates, News

Registration for the 78th ILA Biennial Conference is now open.

The ILA 2018 Conference will be hosted by the International Law Association (Australian Branch) in Sydney, Australia
from 19 – 24 August 2018.

Scholarships are available to contribute towards the Conference registration fees, travel costs, accommodation, and subsistence. Scholarship applications are particularly welcomed from younger persons in regions of the world that are generally under-represented in the ILA’s work.

Check out the confe rence website for all the latest info about registration, accommodation, FAQs, getting around Sydney and more.

The High Court of Australia, torture, and ‘oblique intention’ – Stephen Ranieri

20/12/201718/01/2018 Editors Analysis, Articles

*(“High Court of Australia” by Malcolm Tredinnick/Flickr. Adapted from original.)*

The absolute prohibition of torture, both as a matter of treaty law and international customary law, has been described as one of the ‘few issues on which international legal opinion is [most] clear’ and its transgressors rightfully identified as the ‘common enemies of mankind’. In SZTAL and SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 (SZTAL), the High Court of Australia recently had cause to consider the CAT, ICCPR, and other international legal materials regarding torture, in relation to Australia’s ‘complementary protection regime’ established through the Migration Act 1958 (Cth) (Migration Act).

Indian court intervenes in Vodafone investment arbitration against India – Ishbel McLachlan

19/09/201718/01/2018 Editors Analysis, Articles, Opinion

The Delhi High Court has temporarily restrained British companies Vodafone Group Plc and Vodafone Consolidated Holdings Ltd (together, “Vodafone“) from taking any further action in respect of a claim against India under the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of India for the Promotion and Protection of Investments (“UK-India BIT“): Union of India v Vodafone Group PLC United Kingdom & Anr. CS(OS) 383/2017.

The Court’s decision was made on the basis that an arbitration under the UK-India BIT would duplicate a claim already filed by Vodafone’s subsidiary Vodafone International Holdings BV (“Vodafone BV“) under the Agreement between the Republic of India and the Kingdom of the Netherlands for the Promotion and Protection of Investments (“Netherlands-India BIT“) and that the “natural forum” for the dispute was the Indian courts. The Court has asked Vodafone to respond to India’s request for a permanent anti-arbitration injunction by 26 October 2017 before any further orders are made.

International Law Update – The Conflict in Yemen, the International Criminal Court, and the Srebrenica Massacre

14/09/201725/01/2018 Editors Articles, ILA Updates, News

Yemen

Human Rights Watch called for the release of Yemeni activist Hisham al-Omeisy, whom Human Rights Watch claims has been detained by Houthi authorities. Human Rights Watch states that al-Omeisy was arrested by 15 officers on 14 August 2017 in Sanaa. They claim he has not been charged, brought before a judge or given access to a lawyer or his family, and that he is in an undisclosed location. Amnesty International has made a similar statement.

Please don’t take my arbitrators away: a clash of terms between arbitration agreements and institutional rules – Andrew Foo

31/08/201704/12/2017 Editors Analysis, Articles, Opinion

It is reported that the courts of the People’s Republic of China (“PRC”) have refused to enforce a Singapore International Arbitration Centre (“SIAC”) award under Article V(1)(d) of the New York Convention, on the basis that “the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties…”.

In this case, two parties entered into a contract for the sale and purchase of iron ore. However, the arbitration agreement therein contained a potential (and potent) clash of terms:

The arbitration agreement provided for a three person panel, and

The arbitration agreement also provided for arbitration under the SIAC Rules, and the SIAC Rules contain an expedited procedure and state that if this expedited procedure applies, the case would be referred to a sole arbitrator (unless the SIAC determines otherwise).

Same-Sex Couples in Australia: A Right to Divorce But What of Marriage?

24/08/201718/01/2018 Editors Analysis, Articles, News

On 3 August 2017, the Human Rights Committee (HRC) of the United Nations handed down a landmark ruling that Australia had breached its international human rights obligations because it did not allow same-sex couples in Australia to divorce, when they had legally married overseas. This decision comes at a time when the political temperature on the same-sex marriage debate in Australia is heating up.

While it is clear from the HRC decision that same-sex couples in Australia have a right to divorce, it is less clear whether they have a right to marriage and whether Australia will recognise it. Under the Marriage Act 1961 (Cth), marriage is currently defined as “the union of a man and a woman”. This definition was introduced in 2004 under then-Prime Minister John Howard. Before then, same-sex couples could allegedly marry.

Can there be justice for Otto Warmbier? – Lorraine Finlay

17/08/201717/01/2018 Editors Analysis, Articles, Opinion

(“Mansudae Monument” by Evan Ritli/Flickr)

There is no such thing as a funny dictatorship. This seemingly obvious point was highlighted with the death of Otto Warmbier, who was until recently imprisoned in North Korea. While Hollywood movies like Team America: World Police and The Interview have, from time to time, parodied the North Korean regime, Warmbier’s death is a stark reminder that this regime is not a joking matter.