Author: Editors

Whaling Case Revisited: Japan Rejects ICJ Jurisdiction Over Scientific Whaling Program

Editors Articles, News, Uncategorized

October 2015 has seen the flaring of tensions once more in the ongoing whaling dispute between Japan and Australia. On 6 October, Japan filed a special reservation to its declaration recognising the compulsory jurisdiction of the International Court of Justice (ICJ). The special reservation, filed with the United Nations, excludes ICJ jurisdiction over:

any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.

In effect, Japan’s reservation seeks to prevent a future legal challenge being brought internationally against its whaling activities. Japan’s scientific whaling program has been the subject of a longstanding dispute between Australia and Japan that, in 2010, led Australia to institute legal proceedings against Japan at the ICJ. This was after the exhaustion of bilateral negotiations and discussions at the International Whaling Commission.

The Whaling in the Antarctic (Australia v Japan) case considered whether Japan, in undertaking the Japan Whale Research Program Under Special Permit in the Antarctic II (JARPA-II), had breached the 1946 International Convention for the Regulation of Whaling (ICRW) by killing whales in the Southern Ocean. Australia argued that Japan was in breach of a moratorium on commercial whaling effectively imposed from 1986 onwards by the adoption of paragraph 10(e) of the ICRW Schedule (which provided for zero catch limits) and Japan’s further obligation under paragraph 10(d) to observe the moratorium. Japan argued that its program fell under the limited exception to the moratorium provided in article VIII of the ICRW, allowing nations to give special permits to its nationals to kill whales ‘for purposes of scientific research’.

On 31 March 2014, the ICJ handed down its judgment, holding that JARPA-II did not fall within the scope of article VIII and determining that Japan was in contravention of the ICRW. The ICJ ordered that Japan revoke any JARPA II permits and refrain from granting any further permits under the program.

While the judgment was widely celebrated at the time as a successful instance of legal dispute resolution and a triumph for the global anti-whaling coalition, Japan has since signalled preparations for a new scientific whaling program, NEWREP-A.

Japan’s filing of a special reservation this month seemingly flouts the scope and power of the ICJ and limits Australia’s options to challenge NEWREP-A on grounds of international law. The Australian government has since announced it is seeking legal advice.

International Law and ASEAN Approach on Transboundary Haze Pollution: Litigating Environmental Disputes — Laely Nurhidayah

Editors Analysis, Articles

Introduction – the 2015 haze pollution crisis

Haze pollution from Indonesian forest fires is an annual environmental disaster in the Southeast Asian region. This year, haze pollution hit the region severely, to an extent far worse than the previous 2013 haze pollution. The Pollutant Standard Index (PSI) in Central Kalimantan reached far above the minimum hazard threshold (350 mg/m3) on 3 October 2015.

The haze pollution this year has not only affected Singapore and Malaysia, who experience it annually, but also reached Thailand. Most of the fires were deliberately caused by human activity to clear peat land for plantation and agriculture. However, El Niño has exacerbated the forest fires, prolonging them for months since the outbreak in August 2015. The El Niño is predicted to continue until November or December 2015.

Poor air quality standards, caused by the fires, have negatively impacted upon peoples’ health across Indonesia and in neighbouring countries.   Children, the elderly and people with asthma are the most vulnerable groups, as they are disproportionately affected. Schools are closed due to poor air quality, and the increasing PSI in the Indonesian cities of Kalimantan and Sumatera has recently forced the government to conduct emergency action evacuation plans for these vulnerable groups. Economic activities in the region have been disrupted, with the aviation industry directly affected with many cancellations of flights to the haze-affected areas.

Litigating transboundary environmental disputes in ASEAN

In response to the haze pollution, Singapore has launched legal action against five Indonesian companies, who it blames for starting fires in farm and plantation areas. These companies, including the multinational corporation Asia Pulp and Paper (APP), have been served with preventive measures notices. Last year, Singapore passed Transboundary Haze Pollution Act No 18/2014. This act has extra-territorial application, which allows Singapore’s government to prosecute the external conduct of an entity that causes or contributes to domestic haze pollution. Offenders can be subject to a fine not exceeding AUD$100,000 for each day that there is haze pollution in Singapore. The act was passed in response to frustration at the inability of the Indonesian government to enforce its own laws against corporations responsible for the fires. On another level, it is a response to the inability of the ASEAN Agreement on Transboundary Haze Pollution to address annual and consistently repeated haze pollution. Implementation of the customary international law principle of state responsibility within ASEAN is problematic, because state sovereignty is strongly embedded in the ASEAN Charter. A further complication is the ‘ASEAN Way’, a term describing the approach taken by ASEAN states to avoid interfering in each other’s domestic affairs and to use consensus planning and cooperative programs paired with national implementation, rather than relying on a strong region-wide agency or bureaucracy. Under the international law regarding transboundary pollution, the main obligation is that a state should not cause harm to other territories. The Stockholm and Rio Declarations stated that states have, in accordance with the UN Charter and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies. However, they also bear responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states. Breach of this obligation of environmental protection may make a state responsible for an internationally wrongful act and liable to make reparations for the injury caused under customary international law, as codified in the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts.

The Singapore Government’s response to haze pollution problem has shifted from state responsibility towards a civil liability regime for transboundary environmental pollution — as adopted in the Transbounday Haze Pollution Bill — and it has its precedents. This approach is in keeping with the work of the International Law Commission on the codification of state responsibility for environmental damage. During the forest fires disaster of 1997–98, Singapore tried to hold the Indonesian Government accountable its failure to control the fires that precipitated a transboundary haze crisis (Tan, 1999). However, insurmountable geo-political resistance to bringing an action against Indonesia under international law meant that this legal action did not materialise (Tan, 2015). Since then, Singapore has launched legal action against Indonesian companies.

Yet the Malaysian Government is refraining from legal action on the basis that it needs to consider potential jurisdictional restrictions under international law. The Malaysian Government can wait and see whether the Singaporean Government succeeds against the offenders. Evidence beyond reasonable doubt is required to prove that the defendant was responsible for causing haze pollution in specific area. Although, current technology can identify the location of forest fire ‘hot spots’, it cannot identify the actor responsible. The primary difficulty is that there is not any one-map policy in Indonesia for identification of concession holders and oil palm companies. Furthermore, land tenure is often disputed in Indonesia. In addition, to obtain remedies, the damage should be quantifiable, the polluters identifiable and there must be clear causation. As a result, civil liability is not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link negative environmental effects with either an act or failure to act by specific actors. In this regard, Singapore’s Government will face difficulties in its suits: Indonesia’s Coordinating Ministry of Political, Legal and Security Affairs has stated that it would not share with Singapore the data of companies who conduct burning activities. Indonesia’s Government argue that domestic law prohibits public disclosure of this information. Yet Article 17 of the Freedom of Information Act No 14/2008 states that there is an exception, as the Government is obliged to inform the public if such information assists the maintenance of natural resources in Indonesia.

Taking legal action against companies in other jurisdictions is challenging, as formal dispute mechanisms can be slow and costly. Alan Tan states that extraterritorial legislation against individuals or companies engaged in transboundary pollution is rare. The first international air pollution case was the Trail Smelter Arbitration 1941. Two states, the United States of America and Canada, were involved in this dispute regarding transboundary fumes causing damage to the property of apple growers in Washington, USA. A dispute between two private parties quickly escalated to the an international-level dispute between states. Obstacles prevented the national courts from exercising jurisdiction during the original Trail Smelter dispute, as the American courts faced difficulties with personal jurisdiction, extraterritorial application of law and the extraterritorial enforcement of its decision — a Canadian Court would not have been able to enforce an American decision.

Additionally, international mechanisms do not provide a useful forum for private parties to resolve Trail Smelter-type disputes, according to Kerkhof. In recent years, there have been a number of multilateral and bilateral initiatives to improve the ease with which as court can be accessed to address transboundary pollution issues. One of these initiatives is the OECD’s recommendation on the Implementation of a Regime of Equal Right of Access and Non-Discrimination in relation to Transfrontier Pollution, but it is not binding. In the USA, the most recent and successful step towards access for justice in cases of transboundary pollution is the Uniform Transboundary Pollution Reciprocal Access Act.

It seems unlikely that ASEAN will establish a liability regime to protect the environment within its own legal framework. ASEAN has a stronger emphasis on prevention and cooperation (rather than determination of liability) when responding to haze pollution or environmental issues. Therefore, Singapore’s legal suits are an important indicator for the future, as success would be a breakthrough for the development of liability regimes in international law and ASEAN.

Conclusion

Litigating environmental disputes is one solution to obtain compensation and deter offenders. However, in seeking compensation or remedies in the environmental sphere, initial barriers lie in proving causation, identifying the polluters and evaluating the claim for the damages. In the case of long distance transboundary pollution, such as air pollution, it is often difficult to identify the sources of the pollution and the polluters themselves. There is also a problem of scientific uncertainty, particularly given the complexity of environmental problems. Even though Transboundary Haze Pollution Act has limited implementation, it represents robust development in ASEAN’s legal framework for haze pollution.

One solution would be to deal with land and forest fires in accordance with international environmental principles and changing attitudes on the ‘ASEAN Way’. However, to ignore the ‘ASEAN Way’ is not legally possible, as those principles are part of the ASEAN Charter. Improving transnational cooperation is an alternative option, particularly by increasing capacity building efforts for local people.

Where international action fails, other solutions exist, such as reform to peatland management and law enforcement in Indonesia. Another solution to deal with land/forest fires is to change attitudes at local level, particularly amongst the companies and local communities who use burning practices. Strengthening community based fire management and activating and revitalising adat, or local customary law, institutions are key to addressing haze pollution and improving environmental protection.

Dr. Laely Nurhidayah, Researcher Indonesian Institute of Sciences (LIPI) (Macquarie University Graduate)

The Act of Killing: Human Control of Weapon Systems and the Future of Warfare — Aneta Peretko

Editors Articles

The future of warfare lies not in drones that are remotely controlled by a pilot, but in unmanned weapon systems that can independently acquire, track and engage targets.

In fact, this future has been a reality since at least the 1980s, in one respect or another. Weapon systems such as the Phalanx Close-In Weapon System, the Aegis Weapon System and the Iron Dome Weapon System detect incoming threats and react to them without requiring a human to pull the trigger.

But there is a difference between these types of mechanised responses and autonomous weapon systems that are able to select and analyse a target, and decide whether or not to attack it.

The latter are the subject of this article, which proceeds in three parts to explain what autonomous weapons are, what issues they raise at international law, and what they may mean for the future of war.

What are autonomous weapon systems?

In 2013, as part of a test mission, an Air Force B-1 bomber deployed a Long Range Anti-Ship Missile (LRASM) over Point Mugu, off the coast of California. Although pilots initially directed the LRASM, the weapon entered its autonomous mode half way through its voyage. Without any further human intervention, it analysed three possible ships before selecting one to attack.

Weapon systems with some level of autonomy are already being used, and may be considered for deployment by Australia by the mid-2020s (Defence White Paper at 2.81). Autonomy is a matter of degree, but the LRASM evidently displays a high level of it. It is different from the defensive systems described above, which react on the basis of pre-programmed rules to intercept incoming threats. We know precisely what the Iron Dome will do to an incoming missile. Autonomous weapon systems, on the other hand, behave in a way that is not exactly predictable.

What else we know about autonomous weapon systems is mostly hypothetical. Their use for lethal force is banned by the US Department of Defense up to 2022 (US Department of Defense, Directive Number 3000.09: Autonomy in Weapons Systems at [4.c.(3)] albeit with some exceptions [4.d.]). But we do know that they will not be silver screen, silver-boned killer robots from the future. A definition offered by the US (Directive Number 3000.09, Part II: Definitions) explains that these are systems that ‘once activated can select and engage targets without further intervention by a human operator [emphasis added].’ There is necessarily some human interference.

What human interference does not do, however, is the legally significant act of selecting and engaging a target. Where that act is not subject to meaningful human control, including where there is an override function but the response happens so quickly that it would be impossible for a human operator to keep up, the weapon may be considered autonomous.

How to regulate autonomous weapons systems?

According to a report by the Special Rapporteur on Extrajudicial, Summary and Arbitrary Execution to the UN Human Rights Council, such weapons should meet international standards before even considering them for deployment (Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary & Arbitrary Execution).  As yet, there are no specific treaties dealing with autonomous weapon systems, but per Article 2(b) of the Additional Protocol I to the Geneva Conventions (API), generally recognised principles and international humanitarian law (IHL) continue to apply.

Article 36 of the API requires states to determine whether new weapons are prohibited under international law. That determination requires consideration of two further API articles: article 35(2), which prohibits weapons causing unnecessary suffering or superfluous injury, and article 51(4)(b), which prohibits inherently indiscriminate weapons (for a more in-depth look at how these provisions affect autonomous weapons, see Kenneth Anderson & Matthew C. Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why A Ban Won’t Work and How the Laws of War Can’, Stanford University, The Hoover Institution (Jean Perkins Task Force on National Security and Law Essay Series), 2013). Autonomous weapon systems tend to offer a new method of delivering existing weaponry, including bombs and bullets, so they are unlikely to be the subject of a blanket ban in this regard. However, the use of such weapons may still contravene IHL if the weapons are incapable of exercising the principles of proportionality and distinction (International Committee of the Red Cross, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects 75).

Proportionality demands the balancing of military advantage against civilian injury. Assessment of a target’s worth is typically carried out on-scene by a commander who makes a judgment call. It does not adhere to a system of precedent, or a rigid ratio, so programming a weapon to make such an assessment may be difficult, particularly as that assessment may change from minute to minute based on new intelligence.

Distinction forbids the targeting of persons who are not directly taking part in the hostilities, and although autonomous weapon systems can be fitted with advanced sensors to process biometric data, they may not be able to account for the difficult and fluid line between civilians and combatants (Peter Asaro, ‘On Banning Autonomous Weapon Systems‘; the International Committee of the Red Cross has released an entire guide to interpreting what direct participation in hostilities means, see Nils Mezler, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law). Civilians can become legal targets if they take up arms, which sensory equipment may be able to process, but also if they perform acts to assist military operations without actually carrying a weapon. Likewise, combatants may or may not become illegal targets if they are hors de combat due to injury, but that depends on the severity of the injury.

Are automated weapon systems capable of following the law? In fact, some argue that a properly programmed weapon system will follow the law perfectly (Marco Sassoli, ‘Autonomous Weapons: Potential Advantages for the Respect of International Humanitarian Law’). It will not react in anger or panic, seek revenge or withhold information concerning its own conduct. Human soldiers do not always exercise complete compliance with IHL. Can machines do so perfectly? And if they cannot, and can only comply to the same imperfect level as humans, is that good enough?

And what if programming fails? Assigning liability is a challenge. A machine cannot be convicted of war crimes. The prosecution of developers and manufacturers is unlikely – as a preliminary bar, IHL only applies once hostilities have begun. Weapons developed in the lead up to war, or during peace, fall outside of the temporal coincidence required (Tim McFarland and Tim McCormack, ‘Mind the Gap: Can Developers of Autonomous Weapons Systems be Liable for War Crimes?’ 372). Those who procured the weapon may face the same challenge. Even if they did not, should they really hold legal responsibility? It would also be difficult under modes of liability to implicate a commander – if the weapon is autonomous to a degree that it selects and engages its own target, the commander may not have the requisite knowledge of pending criminal acts (Jack M. Beard, ‘Autonomous Weapons and Human Responsibilities’ (2014) 45 Georgetown Journal of International Law 647, 658). For command responsibility to apply, the principle would have to be modified. But is that level of culpability appropriate if the weapon behaved autonomously?

Why regulate autonomous weapons systems?

The real conceptual difficulty with autonomous weapon systems is not one for lawyers, but one for ethicists. Article 1(2) of the API, the so-called Martens Clause, states that in the absence of other agreements, we must be guided by the principles of humanity and public conscience. Does that humanity-guided decision-making involve moral and intuitive paths that are not algorithmic in nature?

Consider Mark Bowden’s widely read 2013 article in The Atlantic, ‘The Killing Machines’, which recounts the experience of a 19-year old drone operator. In 2013, when a truck began shooting at a patrol of marines in Afghanistan, he fired a Hellfire missile at the vehicle and destroyed it. Those marines were at war in Afghanistan. The drone operator was at an office building in the US. Months later, he was still bothered by delivering a ‘deathblow without having been in any danger’.

Of course, for militaries around the world, this is one of the most significant benefits of autonomous weapon systems. True, machines are faster than humans in collecting, processing and acting upon information. They are also more accurate in firing at their selected targets and thus reduce civilian casualties (Avery Plaw, Matthew S. Fricker & Brian Glyn Williams, ‘Practice Makes Perfect?: The Changing Civilian Toll of CIA Drone Strikes in Pakistan’), and are not subject to fatigue or emotional responses. These are military advantages. But there is also an ethical advantage. The machine assumes the risk of war (Ronald Arkin, ‘Lethal Autonomous Systems and the Plight of the Non-Combatant’, ASIB Quarterly, No. 137, 2013). For every unmanned weapon system deployed in a battlefield, at least one human soldier does not have to face that risk.

Autonomous weapon systems will never be bothered by a lack of mutual risk. The use of highly autonomous systems may remove the culpability of the human in the act of killing, an act to which humans face a psychological barrier (see, eg, David Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (Little, Brown & Co, Boston, 1995)). But does the decreased personal responsibility in this area make it easier to ethically disassociate from the costs of war?

Aneta Peretko is a solicitor and the Chair of the South Australian International Humanitarian Law Collective, a group of young people who share an interest in the law of armed conflict. The views expressed in this article are solely her own.

Understanding the USS Lassen Move

Editors Articles, News

Last week the USS Lassen, a United States guided-missile destroyer, sailed within 12 nautical miles of a series of artificial islands built by China in the South China Sea. In response, China reportedly summoned the US Ambassador, with a state-run newspaper claiming that China was not afraid of fighting a war. China’s naval commander warned that the move was ‘dangerous and provocative’, and policy makers, officials and journalists on all sides of the dispute have debated the wisdom, or otherwise, of these actions by the US.

The latest move by the US comes in the wake of China’s actions in the previously uninhabited Spratly Island group. In late 2014, China began reclaiming land on a series of reefs, some of which were only partially exposed at low tide. In 2015, satellite images showed significant construction beginning on the reefs/islands. China based its claim over the reef/islands on the so-called ‘Nine-Dash Line’, a 1947 map drawn up by Chiang Kai-shek’s nationalist government. It has been used as the basis, once in 1958, and in 2009 before the UN, in order to substantiate China’s claims.

China’s claim has not gone uncontested. Both Vietnam and the Philippines lay claim to the Spratly Island group, and some of the islands fall within the Exclusive Economic Zone of Malaysia and Brunei under the United Nations Convention on the Law of the Sea (UNCLOS). The Philippines has brought a case challenging the validity of China’s claims before an arbitral tribunal under UNCLOS. Despite China’s argument that the is over competing sovereignty claims, and so outside the remit of the arbitral body, last week the Permanent Court of Arbitration rejected this argument and will consider the case under UNCLOS (see Lea Christopher’s piece on the ILA Reporter on 5 November 2015 summarising the tribunal’s decision). However, China has pre-empted any finding, stating that it will not comply with any unfavourable ruling.

The legal issues associated with the South China Sea are complicated. There is a distinction to be made between claims that are covered by customary law and claims that are covered by the international law of the sea (predominantly contained within UNCLOS). The case of the USS Lassen is to be distinguished on this basis as well, and Shannon Tiezzi’s Diplomat analysis is instructive on the point. The recent US patrol was not concerned with challenging China’s claim to sovereignty over the islands, but rather asserting freedom of navigation, a point which the author claims has been lost among much of the news coverage.

Under UNCLOS, territorial sea extends 12 nautical miles from the shore (article 3). Within it, any ship enjoys the right of innocent passage (article 19). The circumstances that will generate territorial sea is central to the current disputes. A key provision is article 13, regarding low-tide elevations (LTEs):

Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.

Article 60 then states that artificial islands do not have any territorial sea of their own and are only entitled to at most a 500 metre ‘safety zone’. This means that under UNCLOS, any artificial structures built by China on LTEs have no territorial sea. Whilst some of China’s construction has occurred on land not considered LTEs, the US has only conducted patrols within 12 nm of Mischief and Subi reefs, artificial islands that were previously LTEs, and so understood by the US not to have a territorial sea. By asserting their right to freedom of navigation past such structures, Tiezzi suggests the US ‘is not challenging China’s sovereignty over the Spratly features; it is challenging the status of those features under international law‘.

With many other LTEs in the region, this stand on freedom of navigation past the Spratly chain is an important test. Understanding how patrols, such as the USS Lassen’s, challenge China under the international law of the sea will be central in understanding the broader geopolitical developments in the region.

 

ILA Event – Canberra & Sydney – Work of Hague Conference on Private International Law

Editors Events

The ILA is pleased to announce presentations in Canberra and Sydney by Mr Philippe Lortie, First Secretary of the Hague Conference on Private International Law. The Hague Conference is a global inter-governmental organisation that works to achieve cross border co-operation in civil and commercial matters.

Mr Lortie will speak about the current work of the Hague Conference as well as the Peter Nygh Hague Conference Internship, which is awarded each year to a graduate or post graduate student of an Australian law school by the ILA (AB) and the Australian Institute of International Affairs.

Canberra event

12.30 pm on 16 November 2015 at the offices of the Attorney-General’s Department, 4 National Circuit, Barton ACT.

Lunch will be provided.

Please RSVP to the Secretary of the ILA at [email protected] by Thursday, 12 November 2015.

The event flyer is available here.

Sydney event

6.00 pm for a 6.15 pm start on 19 November 2015 at Baker & McKenzie, Level 27, AMP Centre, 50 Bridge Street, Sydney NSW.

Please RSVP to Patricia Kam ([email protected]) by Monday 16 November 2015.

The event flyer is available here.

Philippines v China: Tribunal rules favourably on jurisdiction in South China Sea Arbitration – Lea Christopher

Editors Analysis, Articles

On 29 October 2015, an Arbitral Tribunal (Tribunal) issued its award on the questions of jurisdiction and admissibility in the arbitration between the Republic of Philippines and the People’s Republic of China concerning the South China Sea.  In brief, the Tribunal found that it had jurisdiction to decide seven of the Philippines’ 15 substantive claims.  As to the Philippines’ remaining claims, the Tribunal decided that the question of its jurisdiction needed to be deferred for further consideration in conjunction with its hearing of the merits of the claims.

The Philippines’ substantive claims were summarised in my previous article of 22 July 2015. To recap, its 15 claims can be broadly distilled as follows:

  1. China’s maritime entitlements or ‘historic rights’ over the waters, seabed and subsoil in the South China Sea do not extend beyond the limits of its entitlements under the United Nations Convention on the Law of the Sea (UNCLOS). The corollary is that China’s nine-dash line, insofar as it purports to define the limits of China’s ‘historic rights’ in the South China Sea, is not supported by UNCLOS or another source of international law;
  2. The various features relied upon by China to assert its maritime claims in the South China Sea are not islands (as China claims) but are properly characterised as either ‘rocks’ or ‘low tide elevations’ or are permanently submerged.  China’s construction activities on particular maritime features cannot change their nature in law. This claim is critical to the arbitration because, under UNCLOS, the characterisation of these features determines the maritime entitlements they are capable of generating for a state (namely, an exclusive economic zone (EEZ) and/or continental shelf);
  3. China’s construction and occupation activities in relation to particular maritime features in the South China Sea constitute attempted appropriation of such features in violation of UNCLOS. Further, these activities, as well as China’s fishing and law enforcement activities, have interfered with the Philippines’ ability to freely navigate in its EEZ and the exercise of its sovereign rights in relation to the resources falling within its EEZ and continental shelf; and
  4. China has violated UNCLOS by engaging in fishing and construction activities that damage the marine environment in the South China Sea.

In summary, the Tribunal determined that it has jurisdiction over the second and fourth categories of claims (deferring consideration of the remaining first and third categories). In so finding, the Tribunal addressed each of the following issues in relation to the question of jurisdiction.

Did the Philippines’ claims raise a dispute concerning the interpretation and application of UNCLOS?

According to China’s Position Paper, the dispute could be characterised in two ways, both of which excluded the Tribunal’s jurisdiction. First, China characterised the dispute as concerning territorial sovereignty-related questions over features in the South China Sea. On that basis, China contended that the dispute did not concern the ‘interpretation and application of UNCLOS’, being the threshold requirement for the Tribunal’s jurisdiction under article 288 of UNCLOS.

The Tribunal rejected this characterisation, finding that, while a dispute between the parties did exist concerning land sovereignty over certain features, the Philippines’ claims did not require the Tribunal to make determinations on questions of sovereignty. The Tribunal found that each of the Philippines’ claims concerned the interpretation and application of UNCLOS.

Secondly, China contended that the dispute was properly characterised as relating to maritime boundary delimitation which, for the reasons given below, was excluded from the Tribunal’s jurisdiction by an exclusionary provision in the UNCLOS that China had activated in 2006.

In rejecting this contention, the Tribunal distinguished between a dispute concerning the existence of an entitlement to maritime zones (the present matter), and a dispute concerning the delimitation of those zones where parties’ entitlements overlap. The Tribunal also emphasised that, while it would determine the nature of particular maritime features in dispute, insofar as this resulted in overlapping entitlements between the parties the Tribunal’s determination would not go so far as to delimit boundaries.

Did any of the claims fall within the exceptions to jurisdiction in Part XV of UNCLOS?

As noted above, in 2006 China opted out of the Tribunal’s jurisdiction over particular categories of disputes, including those concerning:

  1. sea boundary delimitations;
  2. historic bays and titles;
  3. law enforcement activities; and
  4. military activities.

This action was taken in accordance with article 298 of UNCLOS, which entitles a party to opt out of compulsory dispute settlement procedures for specific types of disputes when signing or ratifying UNCLOS.

Considering each of the claims in turn, the Tribunal found that none of the exceptions to jurisdiction applied to the Philippines’ second and fourth category of claims. Consequently, it had jurisdiction to determine those claims.

As to the first and third categories, the Tribunal noted that the applicability of the above exceptions depended on merits of the claims and, as such, the possible jurisdictional objections did not possess an exclusively preliminary character. For that reason, the Tribunal reserved a decision on jurisdiction for consideration in conjunction with its determination of the merits of the claims. The Tribunal’s key considerations can be broadly summarised as follows:

  1. The Tribunal’s jurisdiction over the first category of claims (ie, the effect of any historic rights claimed by China) is dependent on whether the claims are caught by the exclusion for ‘historic bays and titles’ in article 298 of UNCLOS. This requires a determination as to the nature and effect of China’s claimed historic rights and their interaction with UNCLOS (ie, a merits determination);
  2. The Tribunal’s jurisdiction over the third category of claims (ie, concerning China’s various construction/interference activities) is dependent on the status of certain maritime features claimed by China and whether any such features generate maritime entitlements for China. Insofar as they generate entitlements for China and result in overlapping entitlements to maritime zones between the parties, the exclusion from ‘sea boundary delimitations’ in article 298 would prevent the Tribunal from addressing some of the Philippines’ claims. That is, such claims would first require a delimitation of the overlapping zones, which the Tribunal is not empowered to do; and
  3. The specifics of China’s activities in particular areas and whether they are military in nature (and therefore fall within the exclusion in article 298) are best assessed in conjunction with the merits.

Were the preconditions to the Tribunal’s jurisdiction met?

Relying on articles 281 and 282 of UNCLOS, China contended that state parties had agreed on a peaceful dispute resolution mechanism of their own choice, precluding recourse to the compulsory dispute settlement procedures under UNCLOS. The articles essentially prevent a state from resorting to the compulsory procedures in the event that they have already agreed on another means of dispute resolution.  In this regard, China pointed to a series of joint statements by state parties starting in the mid-1990s that referred to the resolution of their dispute by negotiation, as well as the Treaty of Amity and Cooperation in South East Asia.

Having regard to these statements and instrument, the Tribunal concluded that they did not prevent the Philippines from resorting to arbitration under the compulsory dispute resolution provisions.

The Tribunal also found that the Philippines had satisfied the precondition for resorting to arbitration, namely, that the parties had an ‘exchange of views’ regarding settlement of the dispute (article 283). In so finding, the Tribunal relied upon diplomatic communications by the Philippines to affected parties in which it proposed multilateral negotiations to resolve the dispute. China insisted on bilateral talks only and the parties ultimately failed to identify a mutually agreeable mode of settlement.

The Tribunal also noted that it was not deprived of jurisdiction by either China’s non-participation in the arbitration to date or the absence of other states with claims to features in the South China Sea (such as Vietnam).

Next steps

The dispute will now proceed to a substantive hearing to enable the Tribunal to determine the merits of the Philippines’ claims alongside the outstanding jurisdictional questions.

However, China has reiterated its position of non-acceptance of (and non-participation in) the arbitration. Its Vice Foreign Minister recently claimed that the outcome of the arbitration ‘will not impact China’s sovereignty, rights or jurisdiction over the South China Sea under historical facts and international law’. Without any power to enforce its rulings, the Tribunal could end up being entirely ignored by China insofar as the outcome is not in its favour.  The proceeding could even prompt China to withdraw from UNCLOS altogether.

While the Philippines has acknowledged this risk, it hopes that an outcome unfavourable to China will encourage other states to defend their respective claims in the region and will result in sufficient diplomatic pressure to dissuade China from further construction activities in the South China Sea. In the meantime, the US has presented its most significant challenge yet to China’s claims in the South China Sea, sending a guided missile destroyer into waters within 12 nautical miles of one of the reefs in dispute days before the Tribunal published its award.

Lea Christopher is a lawyer at Clayton Utz in Canberra. The views expressed in this article are solely her own.

Global Economic Law Network Workshop – Melbourne – TPP Revealed

Editors Events

The Global Economic Law Netowrk is holding a workship on Friday 13 November 2015 on the Trans-Pacific Parternship (TPP).

At this one-day workship, following immediately after the expected release of the agreed treaty text in early November, experts will present their analysis of the TPP on key issues of interest to the legal profession and their clients.

View the program here.

Tickets are $395 and places are limited. Please click here to register for this event.

Should you have any questions, please contact Ms Vesna Stefanovski at [email protected].

 

 

A conversation with Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions — Sophocles Kitharidis and Laura Baykara

Editors Articles, ILA Updates

On 8 October 2015, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Christof Heyns, gave a rare lecture to the International Law Association (Victorian Chapter) during his three-day visit in Australia. Having held this UN mandate for the last five years, Professor Heyns discussed the ways in which his mandate functions and its coverage of the scope and limitations of the right to life, and provided an overview of the central themes that addressed by the mandate, including:

  • the need for law reform on the use of force by law enforcement officials in most countries in the world;
  • the development of guiding principles on the management of demonstrations for the Human Rights Council;
  • the demise of the death penalty; and
  • the emergence of new technologies that affect the right to life, both in terms of weapons and technologies that can be used to protect life.

The Mandate

In 1982, the Commission on Human Rights put forward resolution CHR Res 1982/29 to the Economic and Social Council requesting the appointment of a special rapporteur with a focus on the practices concerning summary or arbitrary executions. The mandate was established under resolution ESC Res 1982/35.

Ten years later, resolution CHR Res 1992/72 widened the mandate to include ‘extrajudicial’ as well as ‘summary or arbitrary’ executions. The amendment indicated the importance placed by members of the Commission on Human Rights to include all violations of the right to life as guaranteed by the majority of international human rights instruments (further information available here).

Professor Heyns discussed the importance of the mandate covering all countries, irrespective of whether a state has ratified relevant international conventions. He noted his most recent country visits to Gambia, Papua New Guinea, and Ukraine.

In resolution HRC Res 26/12, the United Nations Human Rights Council underscored the importance of the UN’s chief investigator to carry out their mandate in the following way:

(a)       To continue to examine situations of extrajudicial, summary or arbitrary executions in all circumstances and for whatever reason, and to submit his or her findings on an annual basis, together with conclusions and recommendations, to the Human Rights Council and the General Assembly, and to draw the attention of the Council to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;

(b)       To continue to draw the attention of the United Nations High Commissioner for Human Rights to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;

(c)       To respond effectively to information which comes before him or her, in particular when an extrajudicial, summary or arbitrary execution is imminent or threatened or when such an execution has occurred;

(d)       To enhance further his or her dialogue with Governments, as well as to follow up on recommendations made in reports after visits to particular countries;

(e)       To continue to monitor the implementation of existing international standards on safeguards and restrictions relating to the imposition of capital punishment, bearing in mind the comments made by the Human Rights Committee in its interpretation of article 6 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol thereto;

(f)        To apply a gender perspective in his or her work.

Professor Heyns articulated the importance of the operational duties of the Special Rapporteur as an advisor to the UN. He underscored the need for rapporteurs to secure invitations from member states where investigations are required and the challenges associated in obtaining approval for the country visits, such as governments not replying or delaying responses due to political pressure and sensitivities. One would also assume that further challenges would include the rapporteurs’ ability to maintain an independent and impartial position throughout their investigation.

Drones, weapons systems and the right to life

Professor Heyns explored the concepts of drones and autonomous weapons systems (AWS) and the complexities (both legally and morally) around how these systems have the ability to make an accurate decision concerning the use of force against human beings — both within and outside armed conflicts, such as those undertaken by law enforcement agencies. The concept of the ‘weapon becoming the warrior‘ underscores the legal and ethical quandaries around the new mechanisms for the use of force. Within the context of law enforcement, intervention (and not human intervention) can be used as a form of non-lethal action, but questions still exist around the ability of a machine making a judgement on when and how the intervention is to be used.

In examining the use of armed drones and AWS from a human rights approach, accountability comes to the forefront of the debate (where a violation of the right to life is evident). Otherwise, it can be classified as an empty normative system. Arguably, since the AWS will have the ability to make judgements with the ‘human’ element absent, it may be that human beings may not be held responsible for collateral damage or for circumstances where the armed drone or AWS fails its target or mission; this is due to the importance of meaningful responsibility depending on meaningful control (see also Professor Heyn’s comments earlier this year) (http://www.ohchr.org/Documents/Issues/Executions/CCWApril2015.doc).

Professor Heyns further examined an AWS’ ability to accurately target legitimate objects. The ability for a machine to make life and death decisions is a growing area of debate concerning the right to life and human dignity. Questions concerning the dignity of the targeted not being affected and the machine’s decision-making process arise as areas for further review. However, it is important to note that even though the machine is making the decision, a human element will also continue to exist within the chain — whether it be the individual who created the structure of the machine, designed the machine, programmed the machine or released the machine to undertake the attack.

Professor Heyns discussed the right to life in the context of the use of force, political killings and the death penalty. The right to life is a precondition to other human rights — for example, political killings against journalists have a chilling effect on a number of other human rights. However, it cannot necessarily be assumed that the right to life is the supreme right vis-à-vis other rights, given the debate surrounding armed drones and AWS. Where the right to life is accepted as the supreme right, it is done on the condition that it is a right that is a prerequisite of all other existing rights. This can be seen in the example of armed drones and the use of force where the drones themselves are not illegal. However, when implementing them as a weapon of force, ‘they may be easily abused and lead to unlawful loss of life, if used inappropriately’ (as stated here by UN Special Rapporteur on counter terrorism, Ben Emmerson).

The presentation concluded with a number of questions from the audience. On behalf of the International Law Association (Victorian Chapter), we extend our greatest appreciation and thanks to Professor Christof Heyns for making this event possible.

This article is not intended to be a transcript of the presentation.

Laura Baykara holds a Bachelor of Laws (Hons) from Monash University and is a solicitor at Herbert Smith Freehills.

Sophocles Kitharidis is a public international law consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victorian Chapter) and holds a Master of Laws in Public International Law from the University of Melbourne.

Fitness First? Assessing the Treatment of Fitness to Stand Trial in the Trial of Ieng Thirith – Esther Pearson

Editors Analysis, Articles

Introduction

On 22 August 2015, former ‘first lady’ of the Khmer Rouge, Ieng Thirith, passed away at the age of 83. Ieng was the Minister of Social Action during the period of Democratic Kampuchea and had been indicted before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on charges of genocide, crimes against humanity and grave breaches of the Geneva Conventions. However, in September 2012, proceedings against Ieng were stayed after she was found to be unfit to stand trial due to progressive dementia. Following Ieng’s death, residents of Phnom Penh expressed their frustration with the lack of prosecution (for example in the Khmer Times article Khmer Rouge ‘First Lady’ Dies). This post reflects on howthe ECCC’s approach to assessing Ieng’s fitness to stand trial — and the consequences its findings — tried to strike the delicate balance between the imperative to secure a prosecution and need for a fair trial.

Fitness to Stand Trial

In 2004, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) considered the concept of fitness to stand trial in a decision on a motion for the medical examination of the accused in Prosecutor v Pavle Strugar (Decision Re the Defence Motion to Terminate Proceedings). The Trial Chamber considered that for an accused to be fit to stand trial, he or she must:

  • have the capacity to plead;
  • understand the nature of the charges;
  • understand the course of proceedings;
  • understand the details of the evidence;
  • be able to instruct counsel;
  • understand the consequences of the proceedings; and
  • testify.

While the finding of fitness to stand trial is a legal determination made by the court, medical experts are typically employed to assess the condition of the accused and produce a report detailing their findings. Before relying on the expert’s report, the court must evaluate whether the report contains sufficient information as to the sources of the expert’s conclusions, and whether those conclusions were drawn impartially.

The ECCC Rules (rule 32) provide for the medical examination of an accused at the request of a party, in order to determine whether the accused is fit to stand trial. On 21 February 2011, Ieng’s defence team filed a request for an assessment of her fitness to stand trial. Between April and October 2011, an expert geriatrician and four psychiatric experts carried out assessments. They concurred that Ieng’s symptoms were consistent with a diagnosis of dementia and, as a result of her condition, her capacity to understand the course of the proceedings and to instruct counsel was significantly impaired. However, the experts explained that there was a possibility that Ieng’s condition would improve by using a medication for Alzheimer patients and through occupational therapy.

The Trial Chamber acknowledged the gravity of the crimes for which the accused was charged (Decision of Ieng Thirith’s Fitness to Stand Trial). However, it noted that properly qualified medical experts, upon assessment of the accused with credible testing methods, had found that Ieng was unable to meaningfully participate in her defence. Accordingly, the Trial Chamber, having weighed all relevant factors in the balance, found Ieng unfit to stand trial.

Consequences of Unfitness

After declaring Ieng to be unfit to stand trial, it fell upon the Trial Chamber to determine the consequences. Given the experts’ opinions that there was a slight possibility of Ieng’s condition improving through medication and occupational therapy, the national judges imposed orders for mandatory treatment, while the international judges ordered her immediate unconditional release. In this divided situation, the Trial Chamber found that it should adopt the outcome most favourable to the accused, ordering that she be released unconditionally.

Continued Detention with Mandatory Treatment

The decision of the Trial Chamber to release Ieng from detention without condition was promptly appealed by the Co-Prosecutors to the ECCC Supreme Court Chamber (Immediate Appeal against Trial Chamber Decision to Order the Released of Accused Ieng Thirith). The Supreme Court Chamber found that the Trial Chamber was obliged to exhaust all measures available to it to enable the accused to become fit to stand trial, including making orders that the accused undergo treatment while being detained in a hospital or comparable facility (Decision on Immediate Appeal Against the Trial Chamber’s Order to Release the Accused Ieng Thirith). The Supreme Court Chamber stated that the unconditional release of the accused would forego any effort in the direction of resuming proceedings against the accused, and ‘such an outcome is irreconcilable with the interests of justice from all points of view, including the accused, prosecution, civil parties, and Cambodian society as a whole’ (at [28]). There is a basis for such orders in international criminal law, with precedents in Prosecutor v Jovica Stanisic and Franko Simatovic (Decision on Defence Appeal of the Decision on Future Course of Proceedings) and Prosecutor v Vladimir Kovacevic (Decision on Appeal Against Decision on Referral Under Rule 11bis) before the ICTY. The Supreme Court Chamber ordered the Trial Chamber to institute the recommended treatment and to review Ieng’s condition in six months.

Release from Detention with Judicial Supervision

On 13 September 2012, after experts had again reviewed Ieng’s condition, the Trial Chamber delivered its verdict that Ieng remained unfit to stand trial and ordered that she be released without conditions (Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following Supreme Court Chamber Decision of 13 December 2011). Again, the Co-Prosecutors appealed to the Supreme Court Chamber, submitting that Ieng should be subject to six conditions for release:

  1. That she reside at a specified home address;
  2. That she make herself available for weekly safety checks by authorities or officials appointed by the Trial Chamber;
  3. That she surrender her passport and national identification;
  4. That she not directly or indirectly contact other co-accused (excluding her husband, Ieng Sary);
  5. That she not directly or indirectly contact any witness, expert or victim who is proposed to be heard before the Trial Chamber and not to interfere with the administration of justice; and
  6. That she undergo examination by medical practitioners appointed by the Trial Chamber every six months.

(Immediate Appeal Against Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial Following the Supreme Court Chamber Decision of 13 December 2011, Case No 002/19-09-2007, 14 September 2012, at [10]).

Conditions that restrict the rights of freedom of movement and privacy, such as those proposed by the Co-Prosecutors, should only be imposed if the conditions are necessary to achieve a protective function, the least intrusive means of achieving that function, and proportionate to the function. In the Supreme Court Chamber’s judgment on the appeal (Decision on Immediate Appeal against the Trial Chamber’s Order to Unconditionally Release the Accused Ieng Thirith), it analysed whether each proposed condition met these criteria. It found that, in light of Ieng’s medical condition, it would be unnecessary and disproportionate to retain Ieng’s passport and identification card and to make orders prohibiting her from contacting the other co-accused, witnesses, experts or victims. The Supreme Court Chamber considered the other proposed conditions to be minimally intrusive and necessary to protect the legitimate interests of ensuring Ieng was available to the Court and to monitor her health. By undertaking such an analysis, the Supreme Court Chamber’s ultimate decision balanced the necessity to afford Ieng a fair trial and the interests of society in seeing the alleged perpetrators of the crimes committed in Democratic Kampuchea being brought to justice.

Esther Pearson is an Assistant Editor of the ILA Reporter.

International Rules on the Use of Force: Implications for Russia + Ukraine, China + South and East Chinese Seas — Dr Alison Pert

Editors Articles

On 20 August 2015, the International Law Association hosted a presentation delivered by Dr Alison Pert (University of Sydney) at the offices of Marque Lawyers in Sydney. The focus of the presentation was China’s recent island-building activities in the South China Sea, but there were also some musings on the effect that these, as well as Russia’s activities in Ukraine, may have on international law and the UN Charter‘s framework for maintaining international peace and security. Below is a summary of Dr Pert’s presentation, prepared by the ILA.

The South China Sea is of great strategic importance, being the shortest route between the Pacific and Indian Oceans; it is a major shipping route and over half the world’s oil tanker traffic passes through it.

China has two types of claims in the South China Sea — one generic and the other specific.  China’s specific claims include the Paracel Islands and Spratly Islands, which are comprised of hundreds of historically uninhabited islands, atolls and reefs.

In its generic claim, China claims ‘sovereignty’ over almost the whole of the South China Sea, based on maps that show an incomplete line of 11 (subsequently 9 and 10) dashes.  China has never explained the precise nature of its generic claim — whether it is meant to be a claim to a vast territorial sea, an exclusive economic zone, or only the land territory within the lines.  China is a party to the United Nations Convention on the Law of the Sea (UNCLOS), and any claim to an exorbitant territorial sea or EEZ would be inconsistent with that treaty.

In its specific claim, China claims a territorial sea of 12 nautical miles, as provided for in UNCLOS, but from straight baselines and in some cases hundreds of kilometres from the coast. This is not permitted by the UNCLOS regime.

Both of China’s claims are vigorously contested by other states in the region, especially the Philippines, Vietnam, Malaysia, Indonesia and Taiwan.  The Philippines is currently challenging the validity of the ‘9-dash’ claim in arbitral proceedings under UNCLOS, and a decision on jurisdiction and admissibility is due before the end of this year.

The basis of Chinas claims has not been explicitly laid out. Drawing from different sources, it appears to include ‘historic title’ to all the islands in the South China Sea and various activities over the centuries, including:

  • the discovery and naming of the islands;
  • boat-building, naval expeditions and voyages;
  • developing knowledge of geographical and natural features;
  • the opening of sea lanes (by marking safe routes on charts);
  • conducting naval patrols as far back as 200–300 CE;
  • conducting scientific surveys, mapping and fishing;
  • placing islands under government administration (1127–1279); and
  • ‘other acts of sovereignty’, such as the installation of facilities for fishing, forecasting and navigation, the rescue of vessels, the issuing of licences to private companies in relation to natural resources and large scale fishing.

These territorial claims may or may not be valid; the activities cited by China are indeed examples of the kinds of governmental acts (‘prescription’) that have successfully established title to territory elsewhere.  But it is necessary that prescription is ‘peaceful’, meaning that it is without objection from competing claims. This may be difficult for China to establish.

What is of more concern is that rather than test those claims in a court or tribunal, China has been constructing large-scale military outposts on many of these islands and reefs.  This might be a breach of international law if any of those islands or reefs are, or are within, another state’s territory.  Even if they are not, China is behaving aggressively to any aircraft or vessels flying over or sailing through the waters of these islands and reefs, demanding that they turn back or go around the claimed Chinese territory.  This too is contrary to international law in most cases.  If a maritime feature is above water at high tide, and is naturally formed, it is an island as defined in UNCLOS and has its own territorial sea and contiguous zone.  If it is also capable of sustaining human habitation or economic life on its own (few of these ‘islands’ are so capable), it is additionally entitled to a 200 nautical mile exclusive economic zone (EEZ) and a 200 nautical mile continental shelf (the creation of artificial islands is not prohibited per se but they generate no maritime zones).  But even warships have the right of innocent passage through the territorial sea, and both shipping and aircraft have freedom of navigation through or over the EEZ.  The concern is that China will use its new military facilities to enforce its claims to sovereignty and impede freedom of navigation.

China is not complying with UNCLOS in at least one other respect.  It has drawn long straight baselines around each group of islands, claiming all the enclosed waters as internal waters and greatly extending the resulting territorial sea, EEZ and continental shelf.  UNCLOS permits this only for archipelagic states (which China is not), and only where the ratio of water to land within those lines is 9:1 or below (and it is not).

The presentation concluded with the suggestion that while paying lip-service to international law, China is violating it in numerous ways.  It was noted, as a point of comparison, that Russia’s activities in Ukraine have clearly violated the international law principle of non-intervention and, at times, the prohibition on the use of force.  As permanent members of the Security Council, China and Russia would of course veto any resolution condemning them.  There is a risk that the rule of (international) law is being seriously undermined, with consequences for the credibility and future of the UN collective security system.