The International Law Association (Australian Branch) and the Australian Institute of International Affairs is pleased to share the Nygh Hague Conference Internship Report completed by 2022 participant Rachel Van Der Veen ahead of the pending deadline for the 2024 Internship.
Ms Van Der Veen participated in the Internship from 29 August 2022 to 27 January 2023 and worked mainly across the HCCH Conference on Commercial, Digital and Financial Law Across Borders (CODIFI Conference), the 2023 Council on General Affairs and Policy and the Special Commission on the 2000 Protection of Adults Convention.
Ms Van Der Veen’s report describing her experience is now available online. To learn more about the 2024 Nygh Internship (for which applications close on 30 September 2023) and to read the reports compiled by previous interns, please visit the AIIA’s website. Ms Van Der Veen will be presenting at the upcoming first session of the Early Career Seminar on Private International Law on 17 August 2023, on the topic Fiduciary Duties and the 1985 Trusts Convention.
The Australian Branch is pleased to present the first seminar in its 2023 Early Career Seminar Series on topics in private international law.
The event will be an online lunch time discussion on 17 August 2023 at 1:00pm AEST.
The panel will feature speakers Dr Sarah McKibbin, University of Southern Queensland, presenting The Australian Doctrine of Forum Non Conveniens in Practice and Rachel Van Der Veen, Australian Public Service, presenting Fiduciary Duties and the 1985 Trusts Convention. The commentator for the event will be Dr Brooke Marshall, UNSW Sydney and the session will be chaired by Danielle Kroon, Marque Lawyers.
To obtain further details, and to register, visit Eventbrite.
Call for Abstracts: Symposium on ‘Russia, Imperialism, and International Law’ , 3 July 2023
The Walther Schücking Institute for International Law at the University of Kiel, Germany, will host an international symposium on ‘Russia, Imperialism, and International Law’ on 14-16 September 2023. The symposium will discuss Russia’s past and present attempts to (re-)establish its dominance and control in the post-Soviet sphere, with a specific focus on geopolitical (e.g., the concept of the ‘near abroad’), nationality-related (e.g., passportisation), and economic ‘tools of imperialism’. Abstracts should be around 1,000-1,500 words, and must be sent to Professor Andreas von Arnauld <[email protected]> in a single document that also includes a brief CV by 3 July 2023. Authors of accepted abstracts will be invited to present their research in panels on their respective themes, and following the symposium, to publish their paper in a special focus section in Volume 66 (2023) of the German Yearbook of International Law. Full details can be found here.
On 20 March 2023, the Australian Federal Police (‘AFP’) and Office of the Special Investigator (‘OSI’) issued a press release announcing that a New South Wales man had been arrest and charged with one count of War Crime—Murder under subsection 268.70(1) of the Criminal Code Act 1995 (Cth). It is alleged that the man, later identified as former SAS trooper Oliver Schulz, shot and murdered an Afghan man in a wheat field in Uruzgan Province while deployed to Afghanistan with the Australian Defence Force (‘ADF’). This incident was the subject of an ABC Four Corners program in March 2020.
Division 268 of the Commonwealth Criminal Code was inserted to create offences of ‘international concern’ and to incorporate the complementarity principles of the Rome Statute, per section 268.1(1) and (2). Section 268.70 falls within Subdivision F of this Division, which specifically focuses on war crimes which are serious violations of Common Article 3 of the Geneva Conventions committed in non-international armed conflicts, of which murder is one.
This is the first war crime charge of murder to be laid against a serving or former Australian Defence Force member under Australian law. This article examines the background of this prosecution and its implications for Australia, its allies and the road ahead for domestic prosecution of war crimes.
This is a review of Dr. Jie (Jeanne) Huang’s China and the International E-commerce and Digital Trade Law: the case of the Comprehensive and Progressive Trans-Pacific Partnership (University of International Business and Trade Press, August 2022, Beijing China, ISBN: 9787566323989, 262,000 words). Dr Huang is an Associate Professor at the University of Sydney Law School, specializing in conflict of laws and digital trade. She is the Co-chair of the American Society of International Law Private International Law Interest Group and Co-Director of the Centre for Asian and Pacific Law at the Sydney Law School.
Dr Huang’s book, ‘China and the International E-commerce and Digital Trade Law: the case of the Comprehensive and Progressive Trans-Pacific Partnership’ is invaluable to stakeholders who are interested in E-commerce and Digital Trade (EDT) with China. It is also a very useful resource for diplomats and delegations involved in free trade negotiations as it simplifies the four key areas where the PRC has provided simplification of its national and provincial frameworks to assist in navigating complex rules.
Illicit boat entry from Sri Lanka (SL) to Australia is not a new phenomenon, as it was highly prevalent before the end of the Sri Lankan Civil War in 2009 and in the immediate aftermath. SL was among the top four source countries from which illegal attempts to enter Australia had been reported by 2012. 736 Sri Lankan boat migrants arrived in Australia at the end of the war. Between 2011 and 2012, 825 cases of illegal attempts were reported. Illegal Maritime Arrivals (IMA)s are unauthorised people who enter a country by unseaworthy boats. Even though border security measures to prevent this phenomenon were adopted by the two countries, a sudden resurgence has become evident due to the ongoing financial crisis of the country. More than 1,000 Sri Lankan people attempted to enter Australia by boats this year. According to the Australian Border Force (ABF), the highest number of boat entries in a single month was reported in June.
SL is currently undergoing the worst economic crisis that the country has experienced since its independence. This unprecedented economic turmoil was highly backed by the economic mismanagement of the country’s leadership that caused the shortage of foreign exchange, fuel, electricity, medicine and inflation, followed by the high price factor. Since this situation has affected persons’ livelihoods, many people began to leave the country to meet their necessities in countries like Australia. These activities are being taken place outside the regulatory standards of migration, which are highly intertwined with people smuggling. The Protocol against the Smuggling defines smuggling as ‘to obtain, directly or indirectly, a financial or other material benefits, of the illegal entry of a person into a state party of which the person is not a national or a permanent resident.’ Routes of people smugglers frequently start from Negombo in the west of SL to Batticaloa and Trincomalee in the East; from Galle, Mirrissa and Hambantota in the South to Point Pedro in the North in SL. Importantly, the criminalisation of people smuggling invokes a criminal perspective to this humanitarian issue.
This is Part 2 of 2 of an article exploring State responsibility for cyberattacks based on the sic utere maxim. Part 1 set out the evidentiary difficulties and principles relevant to the topic. Part 2 continues the analysis in Part 1 by considering how the principles described in that Part might apply to reported cyberattacks on Optus and the Australian parliament, including what might be forensically necessary to establish a claim based on a breach of the sic utere maxim in those contexts.
As set out in Part 1 of this article, on 22 September 2022, Optus, an Australian telecommunications company, was the subject of a massive data breach which affected over 9 million of its customers. While the attack on Optus was likely conducted by a lone actor, other incidents, like a cyberattack on the Australian Parliament’s computer systems, are likely sponsored or conducted by other States.
This article considers how States affected by malicious cyber activity may seek a remedy before international tribunals in circumstances where they cannot convincingly identify the specific perpetrator. It reviews relevant evidentiary difficulties, considers cases regarding the failure of States to exercise due diligence to prevent inter-State harm, and proposes that States affected by malicious cyber activity may argue a breach of the maxim sic utere tuo ut alienum non laedas: in essence, that a State of origin allowed its territory or jurisdiction to be used contrary to the rights of another State.
This is Part 1 of 2 of an article exploring State responsibility for cyberattacks based on the sic utere maxim. Part 1 sets out the evidentiary difficulties and principles relevant to the topic. Part 2 explores how the principles described in Part 1 might apply in the context of specific case examples, including what might be forensically necessary to establish a claim based on a breach of the maxim.
On 22 September 2022, Optus, an Australian telecommunications company, was the subject of a massive data breach which affected over 9 million of its customers. Unfortunately, the Optus breach is only the latest major example of an increasing list of malicious cyber activity affecting States, companies, and individuals. The recent Medibank cyberattack and publication of individuals’ private health information is another pertinent example. While the attack on Optus was likely conducted by a lone actor, other incidents, like a cyberattack on the Australian Parliament’s computer systems, are likely sponsored or conducted by other States. But what recourse under international law does Australia have in either scenario?
As the topic of repatriation from Syria continues to be debated by States within and beyond Europe, this article highlights the approach of the European Court of Human Rights’ Grand Chamber in H.F. and Others v France.
On 14 September 2022, the European Court of Human Rights’ Grand Chamber handed down a highly anticipated judgment, in the case of H.F. and Others v France. The applicants brought the case on behalf of their – French national – children and grandchildren, who were held in the al-Hol refugee camp in Syria and wished to return to France. The applicants’ daughters, ‘L’ and ‘M’ had travelled to Islamic State of Iraq and Levant (ISIL) controlled territory in 2014 and 2015 respectively to be with their partners. Both subsequently had children and ended up in al-Hol camp, following the death or imprisonment of their partners. The applicants went on to initiate repatriation proceedings on behalf of their families. However, these applications were subsequently dismissed. Consequently, the applicants alleged – before the ECtHR – that France’s ‘refusal…to repatriate their daughters and grandchildren’ constituted a breach of:
– Article 3 of the European Convention on Human Rights (ECHR) (prohibition of inhuman and degrading treatment)
– Article 3(2) of ECHR Protocol 4 (right to enter one’s own State), together with ECHR Articles 8 (right to private and family life) and Article 13 (right to an effective remedy).
In 2014, the International Law Commission (ILC) began drafting articles for a Convention on the Prevention and Punishment of Crimes Against Humanity, alluding to “a global convention on crimes against humanity”. While the consideration for this is well-founded, one is compelled to consider the already existing international law on crimes against humanity as formulated under the Rome Statute (Article 7). One goal of the ILC in its crimes against humanity convention was to produce a balanced text that would inspire States to establish improved national laws and national jurisdiction regarding crimes against humanity (and develop inter-State collaboration on the subject), while respecting certain boundaries on what States would likely accept in a new convention. From one perspective, the ILC could have adopted a far-reaching treaty language crammed with “wish list” items to describe highly progressive legal policy, but States likely wouldn’t adopt such an instrument.
It is general consensus that crimes against humanity have attracted sufficient adherence to by States (opinio juris and State Practice) such that they have crystalised as customary international law as well as being contained in the Rome Statute. However, Sean Murphy highlights many States that will not prosecute or extradite alleged perpetrators solely based on customary international law. Rather, they will insist upon having a national statute to prosecute. To bridge this lacuna of international and national law, a crimes against humanity convention will oblige States to codify the crime within their national law, thus enabling themselves to prosecute criminals. In creating its draft articles on the convention on crimes against humanity, the ILC may have merely adopted “guidelines,” “principles,” or “conclusions” that would not bind States to legal restrictions. Instead of a legally binding treaty, the ILC aimed for practical, achievable, and valuable suggested articles.
According to Murphy, unless and until a convention on crimes against humanity is created, States will not take cognisance of their actions. Murphy argues that States must create a treaty and not just a “draft” like the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001. This would be more conducive for States to adopt domestic legislation based on an international convention on crimes against humanity.