Author: Editors

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

Editors Events

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

Editors Events

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

Editors Analysis, Articles

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

Editors Analysis, Articles

Introduction

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

Editors Articles

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

Editors Articles

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 [email protected].

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

Editors Articles, News

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

Editors Events

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 [email protected].

International criminal law and autonomous weapons: a challenge less considered — Sarah Ahern

Editors Analysis, Articles

As early as 1950, computer scientists such as Alan Turing were considering whether a machine might ever be capable of thought and, if so, what the implications of this might be for humankind. Turing opined that

I believe that at the end of the century the use of words and general educated opinion will have altered so much that one will be able to speak of machines thinking without expecting to be contradicted. (Alan Turing, ‘Computing Machinery and Intelligence’ (1950) 49 Mind 433, 442)

The dawn of the twenty-first century has proven Turing’s quote more or less prophetic in substance. The development of automated, autonomous and artificially intelligent machines has the capacity to revolutionise the human existence. In particular, the rise of these machines has enormous implications for the conduct of warfare.

An autonomous weapons system (AWS) is one that is capable of operating, to a greater or lesser extent, without human intervention. Autonomous machines must be distinguished from automatic machines: whereas as automatic machine can be left to carry out a defined task under strict parameters with predictable results, an autonomous machine can comprehend and respond to varied situations without human input.

The question of whether AWS could ever be in compliance with international humanitarian law (IHL) has been thoroughly discussed, with conclusions ranging from adamant rejection to more favourable and nuanced critiques. Human Rights Watch, for example, published the dramatically titled report ‘Losing Humanity: The Case Against Killer Robots’, which called for a complete ban on AWS on the premise ‘that fully autonomous weapons would not only be unable to meet legal standards but would also undermine essential non-legal safeguards for civilians.’ Professor Mike Schmitt, on the other hand, points out that autonomous weapons may be (though will not necessarily be) more compliant with the laws of armed conflict than traditional military systems (Michael N Schmitt, Autonomous Weapons Systems and International Humanitarian Law: A Reply to the Critics).

These discussions, though crucial to the development of the law regulating AWS, overshadow an equally important but much less-considered challenge: the question of how international criminal law (ICL), the system of enforcement developed to promote accountability for violations of IHL, can be applied to crimes involving machines as perpetrators.

The most intuitive response to this question seems to be that the programmer ought to be liable. After all, one might assume that it is the programmer who designs the parameters that dictate the machine’s behavior. This, however, is an overly simplistic approach to what will likely be, in the coming decades, a complicated area of law. An AWS, rather than having one programmer and one user to whom liability may be clearly attributed, is likely to have been programmed by an entire team of developers and to be operated by a team of users (See, eg, General Atomics Aeronautical, Predator UAS (2014)). Moreover, it is likely to operate alongside human peers and commanders in a combat setting.

This raises several challenging questions. First, can a machine ever be liable for a crime in its own right? Secondly, in any event, how can we create accountability for any humans directly involved in a crime alongside an AWS? Finally, can that accountability extend along the chain of command?

These issues have been discussed at length elsewhere — individually by other authors, some of whom are cited in this work; and cohesively by this author in an undergraduate dissertation from which this work is adapted. The following discussion attempts to introduce the issues and frame what is likely to be a significant legal debate as AWS technology develops and becomes more widespread.

Can a machine commit a war crime?

Can a machine ever satisfy the mental elements of a criminal law that has evolved over centuries to moderate and punish human behaviour?

Questions like this tend to spark debates about whether the human capacity for logical, emotional and moral reasoning can ever be replicated in a machine. However, this debate is misplaced in an exploration of mens rea and machine liability because it conflates questions of law with existential questions of sentience, morality, and reason. IHL is silent as to ethical or moral reasoning. Decisions are either lawful or not lawful; within the scope of what is lawful, the law offers no moral guidance or judgment (See generally Dale Stephens, ‘The Role of Law in Military Decision-Making: Lawfare or Law Fair’ (SJD Thesis, Harvard University, 2014) ch 1). A person can be criminally liable for a breach of the laws of armed conflict regardless of their motives, their morality or their ethical reasoning.

The exact definitions and requirements of mens rea vary between jurisdictions and offences and have been discussed at length elsewhere. For the purposes of this discussion, intent is taken to require knowledge and volition: knowledge of the relevant act or omission and the circumstances or results, and volitional action to engage in the act and bring about the contemplated result (or at least volitional acceptance of the risk of the result) (See Prosecutor v Bemba (Pre-Trial Decision) [357]–[359], cited in Johan van der Vyver, ‘Prosecutor v Jean-Pierre Bemba Gombo’ (2010) 104 American Journal of International Law 241).

In a technical sense, knowledge is ‘the sensory reception of factual data and the understanding of that data.’ (Gabriel Hallevy, ‘Virtual Criminal Responsibility’ (2010) Original Law Review, citing William James, The Principles of Psychology (1890) and Hermann von Helmholtz, The Facts of Perception (1878). Although Hallevy applies the term ‘artificial intelligence’ to systems already in use, including in industry, medicine and gaming. His general discussion of machine liability is therefore applicable to the immediate future development of machines in warfare as well as many machines already in use). There are machines in operation today that possess knowledge in this sense. GPS units, fingerprint scanners, facial recognition technologies and medical sensors all use a combination of input devices and contextual information to receive, store and process knowledge in a similar fashion to the human brain.

Volition is another matter, and depends on the sophistication of the machine’s programming and its independence from human operators. A distinction must be drawn between a machine carrying out the task for which it was programmed, and a more sophisticated machine which was not programmed for a particular task, but was instead programmed with learning capabilities and the capacity to make autonomous decisions. In the former case, the intention does not belong to the machine, but to its human operator. Even in the latter case, it is difficult to draw a line between what the programmer designs a machine to do, and what the machine does of its own volition.

Clearly, there are significant questions about whether a machine could form mens rea. These questions might only be answered as the technology develops. In order to create accountability in the meantime, it is necessary to consider AWS in a broader context.

A gun, a soldier, or an innocent agent?

The ambiguity of machine intelligence means at least three legal options must be considered. The first is another intuitive response: why discuss the liability of machines at all? Under this approach, an AWS is no more than a gun or other weapon in the hands of a human operator. This makes sense when considering, for example, remotely-piloted Predator drones.

Equating an AWS with a gun makes less sense, however, where humans are the supervisors rather than the operators of the machines. Setting aside questions of use and command restrictions, the key feature of an AWS is autonomy; an AWS by its very definition has the capacity to perform functions independently of human input. It is this feature that places AWS in a fundamentally different class than an AK-47 (which requires contemporaneous human input) and an antipersonnel mine (which requires non-contemporaneous human input).

AWS and perpetration by another

That being the case, two options remain for situating the AWS in the framework of ICL. One is to treat the programmer or the human user of the AWS as a perpetrator-by-another (Hallevy, above, 11-13). In this approach, the machine is deemed capable of perpetrating the actus reus or physical elements of the offense, but incapable of forming the requisite mens rea or mental elements. This is more or less equivalent to the indirect perpetration model in article 25(3)(a) of the Rome Statute. The AWS is treated the same way as an infant or a mentally incompetent adult.

AWS and group criminal liability

The problem with this model is that, as discussed above, it is more simplistic than the real-world environment in which AWS are likely to operate. It is necessary to consider how the indirect perpetration model might work alongside group modes of liability. Fortunately, this is not a novel concept in ICL: the Pre-Trial Chamber of the International Criminal Court accepted in Katanga that group liability can apply to cases of indirect perpetration (Prosecutor v Katanga (Decision on Confirmation of Charges) cited in Jernej Letnar Cernic, ‘Shaping the Spiderweb: Towards the Concept of Joint Commission Through Another Person under the Rome Statute and Jurisprudence of the International Criminal Court’ (2011) 22 Criminal Law Forum 539).

AWS as perpetrators

Finally, AWS may be viewed as perpetrators in their own right (Hallevy, above, 10). This approach initially seems outlandish in light of today’s widespread technology. However, in the not-entirely-futuristic event that an AWS is programmed with machine learning capabilities and makes a decision that was not specifically dictated by a programmer or user, this might be the most rational approach.

In this last approach, the problem becomes one of accountability. A human can be fined, jailed, or even sentenced to death for a crime; these punishments are unlikely to have any impact on machines. Hallevy argues that as with corporate criminal responsibility, the punishment ought to be adapted to the perpetrator: corporations, for example, cannot be jailed but can be fined (Hallevy, above, 22-6). The difference, however, between corporations and machines is that when a corporation is punished, ultimately its human owners suffer. The same cannot necessarily be said of machines, and this is an area that warrants significant further consideration.

AWS and command responsibility

What liability for the commander of an AWS? Schmitt argues that under the ICL doctrine of command responsibility, the ultimate responsibility for a war crime committed by an AWS would lie with the military commander responsible for deploying the machine into the circumstances in which the crime was committed (Schmitt, above). The concept of holding a superior responsible for crimes committed by subordinates is an accepted principle of customary international law (See, eg, Prosecutor v Delalic et al (Appeal Judgment), Prosecutor v Limaj et al (Trial Judgment))

However, command responsibility is not vicarious liability (See generally Ilias Bantekas, International Criminal Law (Hart Publishing, 4th ed, 2010)), and the application of the doctrine in the context of AWS raises some important questions. The first is whether a commander can be held liable for a crime committed by a machine despite general doubt as to whether a machine can ever possess the requisite mental elements of a crime. The second concerns the nature and degree of understanding required before a commander can be said to have had ‘reason to know’ that a crime was about to be committed. The third is what would constitute ‘punishment’ in the context of a crime committed by an AWS.

With regards to the first question, if the law is reluctant to find that a machine is capable of forming mens rea, then it cannot be said that a crime has been made out for which the commander might be liable. The law as it stands therefore creates a significant gap in accountability for commanders of AWS.

The second question arises because as the algorithms used in AWS become increasingly complicated, it becomes increasingly less likely that a commander without extensive specialist training will understand the AWS in enough detail to have knowledge that a crime is about to be committed. It could be argued that a commander with even basic training regarding the AWS ought to have known, but this ventures dangerously close to presuming knowledge, an approach rejected by the ICTY in the Limaj trial. Again, this creates a gap in accountability.

Finally, as to the third question, it might be sufficient that a commander conduct ‘an effective investigation with a view to establishing the facts’ (Limaj Trial, above, [529]). This point is unsettled, though, and warrants further consideration. Moreover, it is not likely to be a politically palatable option in light of strong public sentiment against AWS.

Conclusion

AWS are no longer the realm of science fiction, and the international legal community (led by countries with advanced militaries including Australia and its allies) must seriously consider the implications of this. To date, almost all of this consideration has been dedicated to the compliance of AWS with IHL. The aim of this discussion has been to introduce some of the questions that will arise in the event that AWS, in design or eventuality, are not so compliant. While we are yet to discover whether such systems will actually be deployed, the research being undertaken to this end means that blanket denial is no longer helpful and the challenge must be acknowledged.

Sarah Ahern is a member of teaching staff at Adelaide Law School where she tutors International Law and International Humanitarian Law. This post is adapted from her undergraduate dissertation ‘The Limits of International Criminal Law in Creating Accountability for War Crimes Committed by Autonomous Machines’. You can contact Sarah at [email protected] or on Twitter @SarahKAhern.

The Good Citizen of Australia: Human Rights and Citizenship in the Twenty-First Century – An Address by Hilary Charlesworth

Editors Articles

Introduction

On Thursday, 12 November 2015, Professor Hilary Charlesworth delivered the annual Nelson Mandela Lecture at the University of South Australia. The podcast can be accessed by clicking here.

Charlesworth’s lecture focused on proposals to amend the Australian Citizenship Act 2007 (Cth) to use the revocation of citizenship as a tool to deter terrorism. These proposals were first put before the House of Representatives in June 2015 in the form of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Bill), and were reintroduced in an amended form on 12 November 2015. This article canvasses Charlesworth’s examination of the amended Bill, with a particular focus on her discussion of the compatibility of the Bill with international human rights law.

Overview of the Proposals

Charlesworth commenced the lecture by highlighting that the Bill envisages two distinct bases for the revocation of citizenship of dual nationals, being persons who are citizens of Australia and one other country. Under the first basis, citizenship automatically ceases upon engagement in specified conduct, such as performing a terrorist act, assisting or financing terrorists (proposed s 33AA) and fighting for a ‘declared organisation’ (proposed s 35). Under these provisions, citizenship ceases immediately upon the person engaging in the specified conduct, and the Minister for Immigration and Border Protection (Minister) is simply required to give notice that the person’s citizenship has been revoked (ss 33AA(10), (11), 35(2)). However, immediately following the issuance of the notice, the Bill requires that the Minister consider whether to rescind the notice and exempt the person from the operation of the provision (ss 33A(15), 35(9)). In deciding whether to do this, the Minister is to have regard to factors including the severity of the matters that were the basis of the notice and the degree of threat posed by the person.

Under the second of the basis, the Minister may make a determination in writing that a person ceases to be an Australian citizen if they have been convicted of a specified offence. As with the first basis, the Minister is required to give notice of the revocation of citizenship (s 35A(5)).

However, under both bases for the revocation of citizenship, the Minister is not required to give notice of the revocation of citizenship if the Minister is satisfied that ‘giving notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations’ (ss 33A(13), 35(7), 35A(7)).

Compatibility with International Human Rights Law

Charlesworth highlighted that, while the amended Bill reflects a significant improvement to the initial proposals, particularly in relation to how the Bill safeguards the rights of children, substantial tensions remain between the terms of the Bill and international human rights law.

 Right to a Fair Trial

 The right to a fair trial is enshrined in Art 14 of the International Covenant on Civil and Political Rights (‘ICCPR’). This right requires that a person be informed of the case against them, have the opportunity to test the evidence against them and to testify. Under proposed ss 33AA and 35, renunciation of citizenship occurs without warning or any form of judicial scrutiny of the evidence of the conduct that is deemed to be inconsistent with the person’s allegiance to Australia. While the Minister is required to consider whether to exempt the person from the operation of the laws, in doing so, the Minister is not required to have regard to any submissions by the person whose citizenship has been revoked. Under proposed s 35A, the person whose citizenship is to be revoked similarly lacks any right to be heard in relation to the revocation. The intention to subvert the right to be heard is made explicit by provisions that state that the rules of natural justice do not apply to the Minister’s exercise of power under the provisions (ss 33AA(17), 35(11), 35A(11)).

Double Punishment

The right to protection against double punishment is provided for in Art 14(7) of the ICCPR. As discussed in the report by the Joint Parliamentary Committee on Human Rights, ‘An individual subjected to both the automatic loss of citizenship and a criminal conviction and punishment for the same conduct will effectively suffer double punishment’. Charlesworth said that this result would be in clear violation of Art 14(7).

Rights of Children

The initial version of the Bill was plainly inconsistent with Australia’s obligation under Art 3 of the Convention on the Rights of the Child to ensure that, in all actions concerning children, the best interests of the child is a primary consideration. Charlesworth acknowledged that many of these inconsistencies have been addressed in the amended Bill. For example, while the provisions in the initial proposals applied to persons of all ages, proposed ss 33A and 35 only apply to persons aged 14 or over, meaning that the citizenship of children under 14 years of age cannot be automatically revoked. Further, if the person is under the age of 18, the Minister is required to consider whether to exempt the person with regard to the best interests of the child as a primary consideration, being a factor that the Minister was not required to have regard to under the version of the Bill initially put before House of Representatives.  However, proposed s 35A applies to persons of all ages.

Does the Bill Satisfy Established Criteria?

 Charlesworth then moved on to explore whether the Bill satisfies the criteria proposed by former United Nations High Commissioner for Human Rights, Mary Robinson, to help build human rights into measures dealing with terrorism. These criteria include that the measures use precise terms, conform to the principles of proportionality and non-discrimination, be compatible with human rights treaties and be necessary in a democratic society. Charlesworth considered that the Bill ‘comes up short’ with regard to all of these criteria.

The Human Rights Compatibility Statement put before the House of Representatives states that ‘the Government considers that the measures in the Bill are appropriate and proportionate in light of the existing and emerged threats to national security’. However, Charlesworth deemed the analysis in the Statement to be ‘cursory and unsatisfactory’. Charlesworth highlighted that, as it currently stands, the Bill could capture religious charities training people with community skills, such as public speaking or accounting practices, that could later be put to use in support of terrorist activities, indicating that the Bill may not conform to the principle of proportionality. In addition, the Bill fails to conform to the principle of non-discrimination due to its application to dual nationals only, and contains ‘contested and vague terms’.  For example, the purpose of the Bill in s 4 suggests that commitment to the ‘shared values of the Australian community’ is a prerequisite for citizenship. Section 4 of the Bill provides that the Bill’s purpose is to provide for the revocation of Australian citizenship on grounds of conduct that is ‘incompatible with the shared values of the Australian community’.  Using value-based language, which could be deployed as an interpretive aid by a court, could have unintended consequences.

Conclusion

Professor Charlesworth concluded her lecture by reflecting on the true worth of laws such as the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, which are oppressive or appear discriminatory, in combating terrorism. According to Charlesworth, research reveals that alienation and humiliation play a large part in the decision to engage in terrorism, and ‘true security depends on broadening respect for human rights rather than treating human rights as dispensable when the going gets tough’.