Icebergs and international law – Matthew Paterson

Despite indigenous peoples such as the Inuit having harvested ice – including from icebergs – for drinking water for centuries, the prospect of commercial harvesting is suddenly gaining mainstream traction. As The Atlantic reports, “Luxury berg-water companies are cropping up across the Arctic. Plans for large-scale operations are growing as well.” While the scale has thus far been minor, there are large-scale plans such as those by the UAE to tow icebergs from Antarctic waters to be harvested.

At first blush, this recent hive of activity seems to operate in a lacuna of international law. After all, icebergs are not specifically mentioned in any international treaty and, as any harvesting has only been on a decidedly small scale, it is exceedingly unlikely that any state practice has yet emerged. Thus, The Atlantic suggested that international lawyers will have to wait for state practice and, ultimately, custom, to develop before there are clear international rules for how icebergs should be treated.

I beg to differ. While there is no International Convention on the Status of Icebergs, that does not mean they exist in a total international law vacuum. Rather, the International Convention on the Law of the Sea (UNCLOS) provides a framework through which the rules surrounding the harvesting of icebergs can be ascertained.

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Event: Beyond Googlies & Cricket: India and Australia Trade, Investment, and Successful Dispute Resolution, 20 November 2019

The Australian Dispute Centre is holding a panel session on 20 November 2019 to discuss the possibilities for the relationship between Australia and India. The event will be hosted in a variety of venues in Brisbane, Sydney, Melbourne, Perth, Adelaide, Patiala, Chandigarh, New Delhi and Kolkata.

Panelists include Gitanjali Bajaj (Partner, DLA Piper), Jo Delaney (Partner, Baker McKenzie), Bronwyn Lincoln (Partner, Corrs Chambers Westgarth) and Natasha Bopaiah (Company Secretary, Australia India Business Council) and will be chaired by Matthew Hickey (Barrister, Level 27 Chambers).

With rising bilateral trade and investment between Australia and India, this is a tremendous opportunity to network in a relaxed atmosphere with members of the Australia India Business Council, legal and ADR colleagues.

For more information, and to register, visit the ADC’s website.

Submissions for the Australian International Law Journal

The deadline for submissions for the upcoming issue of the Australian International Law Journal is 30 November 2019.

From a modest beginning in 1983 as Australian International Law News, the Australian International Law Journal has become a peer-reviewed law journal of international standing. Articles published in the Journal cover a wide range of topics of public and private international law.

Previous issues of the Journal may be accessed on AustLii.

For more information, please refer to the Guidelines for Authors and Publication Policy, or contact the Editor-in-Chief of the AILJ, Professor Anthony Cassimatis on [email protected].

International investment law and the technologisation of intellectual property administration: is it fair and equitable? – Alexander Ferguson

States are increasingly using technology, such as artificial intelligence, to assist with the administration of government. The World Intellectual Property Organization (‘WIPO’) has identified, for example, that artificial intelligence patent applications for computing in government grew by 30% between 2013 and 2016 (see report at page 51).

The administration of intellectual property is one area where technology is increasingly being used. A 2018 WIPO survey found that at least 17 states, including Australia, had started to use artificial intelligence to administer their intellectual property regimes. Such technologies can reduce the cost of administering patent and trademark regimes, and can improve the speed and quality of decisions, such as by reducing errors. However, at least some commercially available tools are ‘not mature enough and cannot be relied upon’ (WIPO, page 46).

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Space Laws: Criminal Jurisdiction in Outer Space – Danielle Ireland-Piper

In August 2019, reports emerged of NASA investigating an allegation that an astronaut committed a crime in space. This gives rise to the question: what criminal law is to guide individuals in outer space? In that particular instance, the answer is relatively straightforward because both the alleged perpetrator and alleged victim are United States nationals and because the alleged conduct took place on the International Space Station (ISS), which is governed by an agreement with specific provisions on criminal jurisdiction. In sum: the law of the United States applies. However, if the victim or perpetrator had been of different nationalities, and had the conduct taken place other than on the ISS, the answer might be more complex.  

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Australian Antarctic Law and Policy through the Lens of Chinese Academics – Nengye Liu

In her book “Is International Law International?”, Anthea Roberts raises the concept of “comparative international law”. Roberts illustrates the different national and regional approaches towards understanding, interpretation and application of international law. She points out that national approaches to international law plays an important part in “a transnational field that aspires to develop common rules to facilitate inter-state coexistence and cooperation”. Furthermore, academics play an influential role in a State’s international law practice, through their scholarship and practice.

The approach of comparative international law is useful in the Polar Regions. In recent years, China has been significantly expanding its presence in Antarctica. For example, China now operates three research stations in the Australian Antarctic Territory (AAT), including Kunlun Station at Dome A – the highest point of the Antarctic ice sheet, and since 2013, China has been proposing to establish an Antarctic Specially Managed Area around Kunlun Station to the Antarctic Treaty Consultative Meetings. Furthermore, China is now building its fifth Antarctic station on Inexpressible Island in the Terra Nova Bay of the Ross Sea.

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Private prosecutions for international crimes: the High Court of Australia closes the door on individuals seeking to end impunity – Keilin Anderson

Last week, the High Court handed down its judgment in Taylor v Attorney-General [2019] HCA 30. It was a close call with a slim 4:3 majority dismissing the application. The decision concerned the attempted prosecution of Aung Sun Suu Kyi under Division 268 of the Criminal Code Act 1995 (Cth) (Criminal Code) which represents Australia’s implementation of the Rome Statute and the source of our universal jurisdiction over international crimes.

The case highlights some complex questions – that arguably linger – about the significant procedural hurdles facing the prosecution of international crimes in Australia.

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The new Hague Convention: Aspirations of Certainty, Efficiency and Access to Practical Justice through the Recognition and Enforcement of Foreign Judgments – Xara Kaye

On 2 July 2019, the Member States of the Hague Conference on Private International Law (HCCH) formally adopted the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Convention), a significant development in the private international law landscape. The aim of the Convention is to create greater legal certainty and efficiency, as well as provide a process for cost-saving and practical access to justice. While the Convention has been heralded as an important instrument that will fill a significant gap in private international law, its impact will be determined by the extent to which it is broadly adopted – an outcome which is not guaranteed.

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Did the War on Iran Just Begin? The Use and Abuse of International Law in the Strait of Hormuz – Natalie Klein

Over the last month, the world has witnessed a series of tit-for-tat maneuvers involving Iran, the United States and the United Kingdom. Sitting amidst the strategic and political stakes are complex questions of international law. Claims of ‘state piracy’ and proposing convoys in the Strait of Hormuz now appear to be contributing to the tension rather than facilitating the resolution of competing claims.

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The WTO Dispute Settlement System: Just another Victim on the Road to Tomorrow’s GATT? – Markus Wagner and Weihuan Zhou

The current dispute over the future of international trade (oftentimes referred to as a “trade war”) has moved the WTO from an obscure field of research into the public spotlight. These discussions centre on the economic relationship between China and the US. However, another significant battle is playing out over the future of WTO dispute settlement.

The central question that remains unanswered – and which we are trying to uncover in this post – is why the US has embarked on a process which pits itself against the very large majority of the WTO membership (see only here, here and here) and which has the potential to end WTO dispute settlement. Before the WTO Dispute Settlement Body, the US has complained about (1) individuals who are no longer formally members of the Appellate Body (“AB”) continuing to adjudicate disputes; (2) non-adherence to the 90-day deadline for issuing AB reports; (3) the use of obiter dicta in AB reports; (4) the AB’s misapplication of the standard of review; (5) AB reports having precedential effect; and (6) AB interpretations and decisions having amounted to judicial overreach.

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