Author: Editors

ILA and National Centre for Indigenous Studies Event – Canberra – The International Law Context of Recent Developments in Indigenous Policy in Australia

Editors Events

The ILA and the National Centre for Indigenous Studies are holding a seminar that will consider Indigenous policy in Australia set against Australia’s international human rights obligations.

The event will be held from 5 – 7 pm on 30 October 2015 at the Hedley Bull Centre Lecture Theatre 1 at the Australian National University.

The speakers are Professor Mick Dodson, Mr Greg Marks and Dr Sean Kerins.

Please register via EventBrite.

Enquiries may be made to [email protected].

The event flyer can be accessed here.

Asian Law Centre Event – Melbourne – The China-Australia Free Trade Agreement (ChAFTA), Legal Services & The Regional Context

Editors Events

The Asian Law Centre at the Melbourne Law School is holding a seminar on 29 October 2015 on the recent China-Australia Free Trade Agreement (more details available here).  The subject of the seminar is the effect of the free trade agreement on legal services between China and Australia and how these developments fit into a regional context.

The seminar is being hosted at King & Wood Mallesons and features a number of speakers from across the legal spectrum:

  • Dene Yeaman from DFAT, who was the lead negotiator on Services;
  • Andrew Godwin from Melbourne Law School;
  • Arjuna Nadaraja from the Law Council of Australia;
  • David Olsson, from King & Wood Mallesons; and
  • Molina Asthana from VGSO, who is also the president of the ILA Australia’s Victorian branch.

For readers interested in the effects of free trade agreements on the legal industry and trade of legal services, Molina Asthana has previously published an article at the ILA Reporter on this topic.

LIV Event – Melbourne – International Commercial Arbitration Moot 2015

Editors Events

The Law Institute of Victoria is holding the International Commercial Arbitration Moot. The moot is designed to provide an opportunity for penultimate and final year university students, law graduates and new solicitors to exercise and improve their advocacy skills in an international arbitration.

Participation in the moot is free. The preliminary round is being held on 15 October 2015 at 5.30 pm.

For further information and registration click here.

EJIL interview with Hilary Charlesworth

Editors Articles, News

On 9 September 2015, EJIL:Live! published an engaging video interview with leading Australian international lawyer and theorist, Professor Hilary Charlesworth.

Click here to access the video.

Professor Joseph Weiler, Editor-in-Chief of the European Journal of International Law (EJIL), and Charlesworth discuss whether feminist theory in international law has become mainstream. Charlesworth acknowledges that there have been gains in the feminist project since she co-published her seminal article, ‘Feminist Approaches to International Law’ with Christine Chinkin and Shelley Wright in 1991 (see (1991) 85 American Journal of International Law 613). In particular, the language of feminism has entered mainstream institutions. However, Charlesworth provides that, whilst the ‘vocabulary has triumphed … the political agenda behind the ideas hasn’t’.

Charlesworth says that it is problematic that the debate on feminist theory remains ‘in-house’. She suggests that the project would progress if international lawyers who were not feminist theorists were to engage with the issue in respect of their various fields of expertise.

Charlesworth and Weiler also traverse the topic of Australian and New Zealand international lawyers abroad. Weiler jokes that both countries are considered ‘international law powerhouses’ and sometimes people tell him that EJIL should be called the Australian Journal of International Law because it publishes the work of so many Australians.

Charlesworth suggests that a possible explanation is that international law is considered an escape route for Australians, ‘a bridge from our isolated existence into other worlds’. She observes, however, that it is a shame for Australian scholarship that there is such a leakage of talent to Europe and the United States.

The politics of aggression and its susceptibility to regulation by domestic and international criminal law: Is it an act unsuitable for legal regulation generally? — Sophocles Kitharidis

Editors Analysis, Articles

Introduction

Definitional, jurisdictional and regulatory issues surround the crime (and act) of aggression, and its status as a legal act. This post examines whether the determination of an act of aggression — which is made by the United Nations Security Council (UNSC) and is soon to be justiciable before the International Criminal Court (ICC) — is and will always remain a primarily political (rather than legal) act.

The UNSC has the power to declare an event an act of aggression under the UN Charter (Article 39, Chapter VII). The crime of aggression, on the other hand, will fall within the jurisdiction of the ICC under the Rome Statute in 2017, and concerns:

the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.

Two competing schools of thought exist when it comes to approaching the complex task of interpreting aggression as an act capable of legal regulation. First, there are states that argue that the ICC should be the only institution with the right to exercise jurisdiction over aggression once the UNSC has determined that an act of aggression has occurred (Matthew Gillett, ‘The Anatomy of an International Crime: Aggression at the International Criminal Court’ (2013) 13 International Criminal Law Review 829). Such an approach indicates that the ICC would be in a position to only make determinations about the ‘leadership elements’ of aggression (see Report of the Special Working Group of the Crime of Aggression Doc. ICC-ASP/6/20/Add.1/Annex II). In contrast, the second school of thought argues that there are a lack of existing legal frameworks that demonstrate the contentions of the UNSC in determining and asserting the ICC’s independence and rights protection framework for the accused; after all the ICC is required to adjudicate all elements of the crime of aggression (Davis Brown, ‘Why the crime of aggression will not reduce the practice of aggression’ (2014) 51 International Politics 648). This line of thought leads to the argument that aggression is not regulated by criminal law.

This post argues that although a limited legal framework exists to regulate the crime of aggression (and within a criminal law context), there remain significant concerns. It first discusses aggression in the context of article 5(2) of the Rome Statute. It also sets out legal and policy arguments for why aggression may be considered a political rather than legal act. Finally, it articulates the ramifications of its proposed legal status.

Aggression and article 5(2)

Article 5(2) of the Rome Statute sets out the conditions under which the ICC can exercise its jurisdiction over acts of aggression:

The court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

In his submission to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Sir Franklin Berman argued that interpretation of this provision may be that

the reference to aggression in article 5 and, in particular, the last sentence of paragraph 2 of that article, which mentioned the Charter, [is] a reference to the requirement of prior determination by the Security Council that an act of aggression had occurred

This position is reiterated by Meron, (Theodor Meron, ‘Defining Aggression for the International Criminal Court’ (2001) 25 Suffolk Transnational Law Review 1), Zimmermann (Andrew Zimmermann, ‘Article 5’, in Otto Triffterer and Kai Ambor (eds), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Articles by Article) and Scheffer, where Scheffer referred to the provision as opaque due to its nature not indicating whether the ICC can prosecute the crime of aggression absent a prior determination by the UNSC that an act of aggression has taken place (Cited in Carrie McDougall, ‘When Law and Reality Clash — The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court’s Jurisdiction over the Crime of Aggression’ (2007) 7 International Criminal Law Review 277, 280). It is argued that the provision was drafted in order to accommodate both the states that favour the crucial power held by the UNSC to determine the existence of aggression (and therefore the power to regulate its prosecution), as well as states that opposed any ‘special role’ for the UNSC in the prosecution of aggression. In this regard, The Rome Statute interlinks (or at least appears to interlink) with the UN Charter.

Exclusive authority by the UNSC — The importance of UNSC determinations

The UNSC has power to identify an act of aggression pursuant to article 39 of the Charter. The provision states that the UNSC

shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Whilst article 39 provides the legal basis for the characterisation of an act as one of aggression, as outlined below, the making of the determination itself is inherently political (McDougall above 281). In 1991, the International Law Commission provided an opinion on these political dimensions during discussions on the Draft Code of Offences against the Peace and Security of Mankind, asserting that both the crime and threat of aggression can be interpreted as ‘sui generis in that, by definition, they existed only if the Security Council characterised certain acts as such’ (See the Report of the International Law Commission on the Work of its Forty-Third Session).

On this point, Akande notes that the determination of whether a situation is a threat or breach of the peace or an act of aggression is clearly non-justiciable. It cannot be answered by ‘recourse to legal reasoning as there are no legal standards by which to reach a decision. It involves a political decision as to factual ammeters and is in no way constrained by legal considerations’ (Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations’ (1997) 46 International and Comparative Law Quarterly 309, 338). The UNSC’s interpretative exercise requires an evaluation of facts and an ‘appraisal of the international political situation to see both whether a particular label is justified and whether the interests of international peace and security will be furthered’ (McDougall above 281).

There is obiter commentary by the International Court of Justice that supports the UNSC’s exclusive prerogative to determine aggression. In his dissenting opinion in the Lockerbie Case, Weeramantry held that:

… the determination under article 39 of the existence of any threat to the peace, breach of the peace or act of aggression, is one entirely within the discretion of the Council. It would appear that the Council and no other is the judge of the existence of the state of affairs which brings Chapter VII into operation. That decision is taken by the UNSC in its own judgment and in the exercise of the full discretion given to it by Article 39. Once taken, the door is opened to the various decision the Council may make under that Chapter. Thus any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal. [page 66]

Similarly, the International Criminal Tribunal for Yugoslavia in the Kanyabashi Case made an argument that also applies to aggression, stating that:

… the Security Council has a wide margin of discretion in deciding when and where there exists a threat to international peace and security. By their very nature, however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber. (at paragraph [20])

Consequently, international criminal tribunals recognise that the determination of an act of aggression by the UNSC has a political dimension. Within this political context, the nature of article 39 determinations can also be viewed through the veto power of the UNSC’s permanent five members, which is ‘exercisable in relation to substantive questions’ that include the characterisation of acts of aggression (McDougall above 283). De Wet contends that the ‘structural bias in favour of the major powers is a clear indication that decisions in the interest of peace and security will be based exclusively on (national) political considerations’ (Erika De Wet, The Chapter VII Powers of the United Nations Security Council 134–5. See also McDougall above 283) as well as interests. Kelsen argued that the UNSC is not limited to ‘taking enforcement measures under articles 41 and 42’ as article 39 allows the UNSC to make recommendations ‘of any kind’ (Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems 438. See also McDougall above 284).

Another argument of concern relates to article 103, which states that

[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

The issue is that any Rome Statute provision granting the ICC jurisdiction to determine aggression would conflict with articles 24, which outlines the UNSC’s powers in respect of international peace and security, and 39, ‘which grant the Security Council the exclusive ability to determine the existence of acts of aggression and establish an obligation of the Member States to uphold the Security Council’s rights’ (McDougall above 285). Of further concern is where the UNSC adopts a resolution clearly identifying an act of aggression. Here, and on the basis of article 25, ‘it is claimed that a resolution determining the existence of aggression would be binding on the Member States of the United Nations and therefore all States Parties to the Rome Statute’ (McDougall above 285–6). Consequently, it is arguable that ICC judgments regarding the crime of aggression that reach an alternative conclusion to the UNSC’s resolutions would ‘create inconsistent obligations and therefore be unenforceable pursuant to article 103 of the Charter’ (McDougall above 286).

Policy considerations when determining and regulating aggression

If the determination of aggression is a political rather than legal act, then attention must be paid to the policy considerations driving that determination. These must be viewed through a realpolitik lens (McDougall) since the permanent five members of the UNSC and their allies view UNSC determination as the ‘conditio sine qua non for the inclusion of the crime of aggression’ (Hermann Von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy S Lee (ed) The International Criminal Court: The Making of the Rome Statute 84). Scheffer also places a degree of an emphasis on realpolitik by viewing aggression as ‘one crime that other nations may seek to charge our deployed military with, regardless of the merits.’ He views it as a crime that ‘invites political manipulation to serve the interests of whoever regards any projection of military power to be aggressive’ (Quoted in McDougall above 307. See also D D N Nsereko, ‘Bringing Aggressors to Justice: From Nuremberg to Rome’ (2005) 2 University of Botswana Law Journal 5).

There are other interpretations of how the permanent five members of the UNSC can ensure that it possesses the crucial prerogative to determine the occurrence of aggression. First, they desire the ability to protect their leaders from ICC prosecution (regardless of the merits of the legal case). Secondly, they will go above and beyond to protect this privileged status within the international arena ‘in the context of increasing debate about the need for Security Council reform’ (McDougall above 308). Thirdly, they are concerned with the ICC having jurisdiction over the crime of aggression, with their position being ‘premised on a belief that jurisdiction could be a sticking point, ultimately leading to a breakdown in negotiations’ (McDougall above 308). Such politics may see the crime of aggression undermined by the UNSC. The UNSC’s actions concerning aggression are evidence of ‘the legality of the State act element of the crime’; that is, actions leading to a less hostile and more cooperative relationship that provides for ‘resolutions vis-à-vis allegedly aggressive acts’ being drafted by the UNSC and considering future prosecutions (McDougall, 308).

Other policy arguments have been put forward demonstrating that aggression is more a political act:

  1. If the ICC has the right to determine the existence or occurrence of aggression, it undermines the UNSC since it can make the determination in situations where the UNSC failed to make an article 39 determination or taking enforcement measures under Chapter VII; (McDougall above 309. See also Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, at paragraph [61]);
  2. In a situation where the ICC determines the existence of aggression, the UNSC loses its ability to negotiation peaceful settlement of conflicts by offering amnesty; (McDougall above 309. See also Allegra Carroll Carpenter, ‘The International Criminal Court and the Crime of Aggression’ (1995) 64 Nordic Journal of International Law 223);
  3. ‘the ICC is not equipped to consider matters that may lie at the heart of allegations of aggression such as maritime boundaries, the scope of legitimate self-defence under article 51, and the status of self-help remedies under international law’ (McDougall above 309); and
  4. The ICC only possesses jurisdiction over natural persons and not states, so there would be implications for the rights of States (McDougall above 309. See also James Nicholas Boeving, ‘Aggression, International Law and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute’ (2004) 43 Columbia Journal of Transnational Law 557).

Conclusion

This piece has laid bare the political context of a determination of an act of aggression. Determination is a political rather than legal act, in part due to ineffective legal mechanisms in the UN Charter. However, it is also due to the considerations of great powers that wish to protect their privileged status in the international arena. The legal regulation of aggression by the ICC remains hostage to the political decisions of the UNSC, and whilst from 2017 the ICC will have jurisdiction to prosecute the crime, its ability to do so will rest on political decisions in New York rather than evidence tendered in The Hague.

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

Melbourne Journal of International Law releases Issue 16(1)

Editors Events, News

The Melbourne Journal of International Law (MJIL) has released Issue 1 of Volume 16, which is available publicly on its website. MJIL is a student-edited, generalist international law journal at the University of Melbourne, and is published twice a year.

Issue 16(1) contains the following articles, which may be of interest to ILA Reporter readers:

  • Banal Crimes against Humanity: The Case of Asylum Seekers in Greece, by Ioannis Kalpouzos and Itamar Mann. This article considers actions by Greek and European border agency agents against asylum seekers in Greek detention facilities and whether they may constitute crimes against humanity under the Rome Statute.
  • Ebola: A Threat to the Parameters of a Threat to the Peace?, by Anna Hood. Hood’s article looks at UN Security Council Resolution 2177, which declared the Ebola outbreak in West Africa to be a ‘threat to the peace’ under article 39 the UN Charter. Hood argues that, having for the first time recognised a health issue as a threat to the peace, the Security Council has substantially expanded the scope of the term. Hood considers what new limits there may be on article 39 given this expansion.
  • What Happened to the International Community? R2P and the Conflicts in South Sudan and the Central African Republic, by Spencer Zifcak. The article examines the conflicts in South Sudan and the Central African Republic and the responses of the international community to the intra-state violence that has occurred. Zifcak seeks to explain why the implementation of any doctrine of responsibility to protect to the situations was ultimately insufficient.
  • The Ascendancy of the Lex Loci Delicti: The Problematic Role of Theory in Australian Choice of Tort Law Rules, by Robert Pietriche. This article considers choice of law issues in the context of Australian High Court decisions. Pietriche contends that exclusive reference to the lex loci delicti (the law of the place of the tort) when determining choice of law is an unsatisfactory approach that has at its origins the failure of the High Court’s theoretical approaches in important cases.
  • LGBTI Activism Influencing Foreign Legislation, by Giulia Dondoli. This article looks at the efficacy of LGBTI NGOs participating in transnational advocacy. Dondoli explores examples in Australia and the United Kingdom before looking at potential negative effects of NGO advocacy.
  • Of Souls, Spirits and Ghosts: Transposing the Application of the Rules of Targeting to Lethal Autonomous Robots, by Tetyana (Tanya) Krupiy. The article examines the rules of targeting and their application to the development of ‘lethal autonomous robots’. Krupiy analyses the current employment of three types of robots and their compliance with targeting rules. She describes the decision-making qualities such robots would need so that they could follow the rules of targeting.
  • The Fight against Hooliganism in England: Insights for Other Jurisdictions?, by Alexandra Veuthey and Lloyd Freeburn. This article analyses the effectiveness of the United Kingdom’s regulatory responses to organised group violence and whether their approach has been as successful in other European countries.
  • The Italian Constitutional Court’s Ruling against State Immunity when International Crimes Occur: Thoughts on Decision No 238 of 2014, by Marco Longobardo. The case note explores the 2014 decision of the Italian Constitutional Court, which ruled on the constitutionality of legislation created to implement the ICJ’s 2012 decision Jurisdictional Immunities of the State [2012] ICJ Rep 100. That legislation required Italian judges to deny jurisdiction for trials relating to Nazi crimes in the 1940’s, but the Court ruled it unconstitutional as it limits access to justice. The Court determined that Italy’s judiciary would not implement the international law of state immunity when it is invoked at a trial for international crimes.
  • Privacy in the Digital Era: Human Rights Online?, by Daniel Joyce. The commentary examines the UN General Assembly’s 2014 resolution The Right to Privacy in the Digital Age and uses it a springboard to discuss whether human rights law is successfully being adapted to the modern reality of the digital age.
  • Book Review by Milena Sterio of Self-Determination and Secession in International Law edited by Christian Walter, Antje von Ungern-Sternberg and Kavus Abushov. The book is a collection of essays on questions of self-determination and rights to secession. It is divided in to three parts: Part I addresses the general legal questions around these concepts and recent decisions such as the ICJ advisory opinion, Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo [2010] ICJ Rep 403; Part II focuses on case studies from the former Soviet Union such as Transnistria, South Ossetia and Nagorno-Karabakh; and Part III presents ‘comparative studies of secessionist conflicts’ such as Kosovo, Western Sahara and the Crimea.

The Editors encourage readers to let us know of other publications and periodicals on international law by Australian institutions. It is an important goal of the ILA Reporter and the International Law Association in Australia to promote greater awareness of the work of international legal practitioners and academics.

OUP creates interactive online international legal history tool

Editors Articles, News

Oxford University Press has published an interactive online tool charting the history of international law. It is available here.

The blurb from the website states:

We have created a concise timeline mapping the broad history of public international law with particular attention paid to the signing of major treaties, the foundation of fundamental institutions, the birth of major figures in international law and milestones in the development of some of the field’s best-known doctrines. There are varying opinions on where to start in the history of international law, as well as arguments around periodising the dynamic developments, though for this project we have started our timeline with the Treaty of Tordesillas in 1494. Explore some of the major developments in the history of international law and read more by clicking through to freed-up chapters from the Oxford Historical Treaties, the Max Planck Encyclopaedia of Public International Law, relevant book chapters, blog pieces and journal articles.

ILA Event – Sydney – Representing Australians Abroad: Practical Lessons from Egypt and Asia

Editors Events

Gilbert + Tobin and the Australian Branch of the ILA are pleased to bring together Professor Donald Rothwell of the ANU College of Law, Christopher Flynn, Partner at Gilbert + Tobin and Barrister Dr Christopher Ward to discuss issues that arise when representing Australians accused of offences committed overseas, including journalist Peter Greste and Andrew Chan and Myuran Sukumaran.

The Panel will discuss matters including the appropriate legal strategies, co-ordination with government and international law issues including trends in the application of the death penalty for drug trafficking crimes.

The event will be held at 6pm, 16 September 2015 at Gilbert + Tobin, Level 37, 2 Park Street, Sydney.

Please RSVP by 31 August 2015 to Kate Vosch ([email protected]).

The event flyer can be accessed here.

French Australian Lawyers Society Event – Melbourne – EU Seminar on Wine Law Regulations and Implications for Australian Lawyers

Editors Events

On 17 September 2015, the French Australian Lawyers Society will hold a seminar on European Wine Law and Regulation and Australian Implications with the Hellenic Australian Lawyers Association and the Italian Australian Lawyers Association.

The speakers are: Dr Matt Harvey, Senior Lecturer in Law at Victoria University, and Stephen Stern, Senior Partner at Corrs Chambers Westgarth.

The event will be held at the RACV Club, 501 Bourke Street, Melbourne, and includes dinner and drinks at a cost of $110 per head.

Registrations may be made here and close 13 September 2015.

Motion to ratify Optional Protocol to Torture Convention falls flat

Editors Articles, News

On 11 August 2015, Senator Penny Wright of the Australian Greens put forward a formal motion in the Australian Senate moving that the Government be called on to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Protocol).

The motion is available here on page 12.

Australia ratified the Convention Against Torture (Convention) in 1989 and the prohibitions contained in the Convention have been adopted in the Commonwealth Criminal Code. Whilst Australia signed the Protocol in 2009, it has not yet been ratified. Presently, 79 countries have ratified the Protocol, including the UK and New Zealand.

The Protocol would require Australia to allow visits by independent international and national bodies to places where people are deprived of their liberty in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.  In particular, Australia would be required to establish a National Preventative Mechanism (NPM) which would have, at minimum, the power to examine prisoners and detainees, make recommendations to national authorities and submit proposals with respect to Australian legislation.

Senator Wright’s motion provided at para (a)(iii) that:

 the establishment of an NPM:

  • had bipartisan support from the Joint Standing Committee on Treaties in 2009, and an implementation framework has been identified by the Australian Human Rights Commission,
  • would help address serious allegations of cruel, inhuman and degrading treatment occurring in some prison facilities in Australia and immigration detention facilities in Nauru, and provide the required transparency to allow health care practitioners and legal advisors to attend to good professional and ethical conduct for clients in detention, and
  • can also deliver improved workplace conditions for employees and efficiency dividends for the taxpayer.

The motion did not receive support from the Government or the Opposition.  Labor Senator, Claire Moore, stated:

…we did deny formality to this important motion, because it is our longstanding practice. Where we have an issue such as this which is complex and creates a number of complex situations and also determines significant discussions across all states and territories, we believe it is not appropriate to use the notice of motion process for that, and that is our standard practice.

As to the status of Australia’s implementation of the Protocol, the Australian Human Rights Commission states on its website that:

The Commission understands that a proposal for ratifying the [Protocol] is under consideration by the Australian Government, and consultations are continuing with the states and territories on necessary steps to implement the obligations under [the Protocol].