Category: Articles

Resolution 29/22: Does international law protect ‘various forms of families’? — Giulia Dondoli

Editors Analysis, Articles

In July 2015, the United Nations Human Rights Council issued Resolution 29/22 on the protection of the family as the natural and fundamental group unit of society. The Human Rights Council requested that the Office of the High Commissioner for Human Rights (OHCHR) prepare a report on the protection of the family and present it at the 31st session of the Human Rights Council. Such a report is a relevant step forward for lesbian gay bisexual and transgender (LGBT) parent-families’ rights within the United Nations aegis.

Resolution 29/22 focused on issues related to single-headed households, protection of children, disparity of household responsibilities between men and women and the protection of disabled members of families. To prepare the report, a note verbale was sent; 24 states and 81 civil society organisations responded with their input to the OHCHR. In particular, Denmark pointed out that Resolution 29/22 does not ‘properly recognize [sic] the fact that various forms of families exist’. Furthermore, the United Kingdom, the United States, and organisations such as Sexual Rights Initiative, and OutRight Action International, asked the OHCHR to consider LGBT parent-families.

Indeed, in the report submitted by the OHCHR to the Human Rights Council pursuant to item 37 of Resolution 29/22 (OHCHR report), the OHCHR states that there is no definition of ‘family’ in international law, and that there is a general consensus within UN documents that the concept of ‘family’ must be understood in a ‘wide sense’. While states maintain a margin of appreciation in defining the concept of family (para 26), the report encourages states to ensure that children born in de facto unions and in LGBT parent-families have equal rights of those born from married and heterosexual couples (para 42).

However, the OHCHR report also reiterates that men and women of full age have the right to marry (para 28. See also article 16 of the Universal Declaration of Human Rights and article 23(2) of the International Covenant on Civil and Political Rights (ICCPR)), and this right can only be understood to mean that a man can marry a woman and vice versa. Indeed, in 2002, the UN Human Rights Committee clarified in Joslin et al v New Zealand that the expression ‘men and women’ denotes that only different sex couples have the right to marry, because the drafters of the ICCPR considered marriage to mean an exclusively heterosexual institution (Luca Paladini, ‘Same-Sex Couples before Quasi-Jurisdictional Bodies: The Case of the UN Human Rights Committee’ in Daniele Gallo, Pietro Pustorino, Luca Paladini (eds) Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, Heidelberg, 2014) 533 at 545). Nevertheless, the OHCHR report also stresses that the Committee on Economic, Social and Cultural Rights has called upon states to provide some sort of legal recognition — for example civil partnership acts or legal recognition of de facto couples — for same-sex couples (OHCHR report, para 27).

The prohibition of discrimination on grounds of sexual orientation and gender identity is a politically controversial issue and a developing concept in international human rights law (Frederick Cowell and Angelina Milon, ‘Decriminalisation of Sexual Orientation through the Universal Periodic Review’ (2012) 12 Human Rights Law Review 341 at 344; Ronald Holzhacjer, ‘State-Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights’ (2013) 35 Law & Policy 1 at 8). In general, issues related to LGBT rights — particularly those related to LGBT family rights — trigger strong reactions from conservative/religious states and organisations. Indeed, conservative voices did not delay in expressing their disappointment with the OHCHR report. In February 2016, Global Helping to Advance Women and Children, the UN Family Rights Caucus and 26 organisations with consultative status at the UN Economic and Social Council submitted a written statement to the UN Secretary General (A/HRC/31/NGO/155) which maintained that the OHCHR report seeks to advance the status of LGBT relationships contrary to international law. The written statement continued to say that the claim that there is a general consensus within the UN on the term ‘various forms of families’ is ‘false and disingenuous’; and concluded by calling upon the OHCHR to edit the report by removing reference to the recognition of different forms of families.

In conclusion, the mention in the OHCHR report to different types of families, and the prohibition of discrimination against children born in LGBT parents-families, are much-needed steps forward in the advancement of LGBT family rights. However, at this point, it is crucial to see whether a second resolution on the protection of the family can evolve in a direction that reflects the sentiments expressed in the OHCHR report.

Giulia Dondoli is a PhD Candidate at Te Piringa — Faculty of Law of the University of Waikato.

Australia’s use of private military and security companies: Options for accountability under international law — Anna John

Editors Analysis, Articles, Uncategorized

Introduction

On 23 February 2016, news emerged that the Australian Department of Foreign Affairs and Trade (DFAT) had renewed its contract with Australian private security company, Unity Resources Group (URG). URG was contracted by DFAT to provide personal security services for embassy staff at the Australian diplomatic mission in Baghdad. URG won this contract after allegedly halving its fees from $101.5 million between 2011 and 2015 to about $51 million for the next five years. The company’s staff have claimed that URG’s cost-cutting has compromised their wages, as well as the quality of weapons, equipment and medical treatment provided to them. As a result, staff have had to buy their own equipment, and many have chosen not to continue with the company.

Why privatise security?

This news raises broader issues about Australia’s use of private security companies. There are, for a start, fundamental moral and ethical concerns. Why aren’t personnel from the Australian Defence Force (ADF) being assigned the task of providing security at the diplomatic mission? The ADF, as a public institution, has been entrusted to act in the interest of the Australian public. On the other hand, private actors are thought to be motivated primarily by profit, which may not necessarily translate to the best interests of the Australian public. URG’s cost-cutting moves do little to assuage this fear. Further, the reliance on such companies is also contentious because of their reputation for excessive force and disregard for human rights. For example, the notorious incidents at Abu Ghraib in 2003 and Nisour Square in Iraq in 2007 both involved gross misconduct by private security contractors employed by the US military.

On the other hand, there are strong arguments for the use of private military and security companies (PMSC). The term ‘PMSC’ is a broad label for companies that undertake a range of security activities including guarding, military training, intelligence gathering, logistical support and combat advice. PMSCs may provide governments with an organised, efficient and cost-effective option to supplement their existing military presence. The UN has used PMSCs in its peacekeeping operations, and it is generally acknowledged that PMSCs have in some cases been able to contribute to a peaceful outcome where a state’s armed forces have not. The classic example of this was in the 1990s conflict in Sierra Leone. Executive Outcomes, a PMSC, was successful in containing a violent uprising by the guerrilla force Revolutionary United Front, negotiating a peace agreement, and regaining control of the diamond fields in the country. Just six months after Executive Outcomes’ contract was terminated in 1997, a military coup ousted the democratically elected civilian government.

Legal issues

There are however a number of legal issues that arise from the Australian Government’s use of PMSCs. While it is not possible to address all of these legal issues (and applicable legal frameworks) in this post, a significant problem area is accountability for the wrongdoing for PMSCs under international humanitarian law, international human rights law and international criminal law. The violent and unpredictable circumstances in which PMSC personnel operate places them in positions where they can readily violate human rights laws and other international rules. For example, if the situation in Iraq worsens — which it may, in light of Islamic State activity — URG personnel may be compelled to use force; potentially lethal force. This has occurred in the past: in 2007, an URG security convoy used excessive force, killing two women (including one humanitarian worker) in a car that did not stop for the security convoy despite ‘hand gestures and signal fire’. Similarly, in Baghdad in 2006, URG contractors shot and killed 72 year-old Australian-Iraqi, Professor Kays Juma who also did not stop for security guards.

To date, there has been no criminal prosecution for either of URG’s acts. Problems of jurisdiction have been the major obstacle to the accountability of URG for their conduct. In particular, as PMSC operations may be governed by more than one jurisdiction, the application and enforceability of criminal laws becomes complicated. One might even go so far as to suggest that this is an unspoken reason of why states find the option of private security attractive: it allows them to avoid the risks of deploying the military. Security companies have their own insurance, and DFAT bears no responsibility for the provision of medical aid, evacuation and ongoing rehabilitation (See James Brown, ‘Guns for Hire’, The Monthly (May 2014)).

Accountability under international human rights law

One obvious option for accountability under international law is international human rights law (IHRL). IHRL is an attractive option for victims because it allows for an acknowledgement that there has been a violation of their human rights or those of their loved ones. Under some frameworks, such as the European Convention of Human Rights, wrongdoers can be ordered to compensate victims. It is also an attractive framework because it covers the spectrum of potential wrongdoing by PMSCs. In the two incidents outlined above, URG may have violated the right to life enshrined in article 6 of the International Covenant on Civil and Political Rights. Other rights that are susceptible to violations by PMSCs include: the right to liberty and security of the person, the right to freedom from torture and cruel, inhuman and degrading treatment, the right to health, the right to a private life, the right to an adequate standard of living and the right to the use and enjoyment of property (see Lenzerini and Francioni, ‘The Role of Human Rights in the Regulation of Private Military and Security Companies’ in Francioni and Ronzitti (eds) War by Contract: Human Rights, Humanitarian Law, and Private Contractors (Oxford University Press, 2011)). These human rights are enumerated in human rights treaties that impose enforcement obligations upon states. The obligations upon states to prevent and prosecute abuses by private actors act as an accountability mechanism. However, the extent to which IHRL imposes binding obligations on non-state actors is unclear; while IHRL traditionally addressed only states, customary international law is developing to include non-state actors (see Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press, 2006)).

PMSCs act in a contractual relationship with the hiring state. Their acts are thus considered to be acts of private persons and not acts of the state, despite their services often entailing the carrying weapons and the risk of physical harm to other people (Francioni, ‘Private Military Contractors and International Law: An Introduction’ (2008) 19 European Journal of International Law 961 at 962). Therefore, any human rights violations committed by a private security provider contracted by the Australian Government will not be attributable to the Government prima facie. The exception to this is where PMSCs exercise elements of ‘governmental authority’ or where the state exercises control over the PMSC’s conduct. Even if this threshold is not met, but a state gives a ‘quiet nod’ to PMSC misconduct, state responsibility for a lack of state due diligence can be engaged. Nevertheless, the nature of the relationship between the state and the PMSC renders it difficult to impose and enforce international human rights laws.

Accountability under international humanitarian law and international criminal law

International humanitarian law (IHL) is another framework through which PMSCs could be held to account for their wrongdoing. To an extent, IHL applies automatically during times of armed conflict. The status of PMSC personnel in situations of armed conflict is determined on a case-by-case basis. While PMSC personnel will generally be considered to be civilians under this framework, they can be held to account for their violations of IHL. The enforcement of IHL is through the criminalisation of grave breaches of international law (e.g. war crimes) under the Statute of the International Criminal Court (the ICC Statute) or the instrument of an ad hoc international court or tribunal, or through the suppression of its violations through the use of national legislation.

Here, there is an interplay between IHL, international criminal law (ICL) and domestic criminal law when it comes to the enforcement of IHL. Importantly, ICL does not impose obligations on corporations. Therefore, PMSCs as corporations cannot be held criminally liable for grave violations of ICL (except, for instance, in circumstances where ICL is incorporated into domestic legislation allowing for the criminal prosecution of corporations – this is discussed further below). PMSC contractors can be prosecuted individually for their breaches of IHL either through ICL or through national legislation. However, there are a number of obstacles involved in establishing the individual criminal liability of PMSC personnel.

First, host States are unlikely to prosecute PMSC personnel due to their limited capacity in times of conflict. In armed conflicts, it is not unusual for States to lose control over the own capitals, let alone exercise control over the actions of PMSCs. Second, hiring States are generally reluctant to prosecute their own troops for fear that this will undermine morale (Quirico, ‘The Criminal Responsibility of Private Military and Security Company Personnel under International Humanitarian Law’ in War by Contract, 424). Furthermore, the collection of evidence for the prosecution of war crimes in a national court requires an exceedingly coordinated international effort. Few States are prepared to undertake the efforts required to acquire evidence (Quirico, 424). In addition, PMSC personnel are often granted immunity contractually through agreements that the hiring state has with the host state. The details of the agreements between the Iraqi government and the Australian government are not public, so we do not know for sure whether URG, for example, enjoys immunity. In comparison, US forces deployed in Afghanistan did have immunity from local jurisdiction (Quirico, 444). Moreover, de facto immunity can be granted through judicial approaches. For instance, courts in the US have cited the political-question doctrine while declining to adjudicate upon claims relating to governmental action where discretion is essential to protect constitutional or political interests (Quirico, 443). In Australia, claims against PMSC personnel might fail on the basis of justiciability. Cases such as Minister for Arts, Heritage and Environment v. Peko-Wallsend and Hicks v Ruddock demonstrate how justiciability considerations underlie the courts’ decision to review (or not to review) government decisions involving international relations. Finally, if PMSC personnel are prosecuted, they are often charged with ‘street crimes’ under domestic law rather than war crimes. For example, the former Blackwater employees implicated in the Nisour Square massacre were charged with crimes of manslaughter and firearms offences. However, their conduct could potentially have amounted to violations of the War Crimes Act of 1996 (US), for murder of civilians, mutilation or maiming, and intentionally causing serious bodily injury (Quirico, 443).

Importantly, the Australian Criminal Code 1995 (Cth) introduces offences ‘equivalent’ to the ICC Statute offences of genocide, crimes against humanity and war crimes into domestic federal criminal legislation. This introduction of international crimes confers jurisdiction upon courts to prosecute corporations for war crimes. This is an important and positive step towards the accountability of Australian PMSCs. However, many of the obstacles to accountability outlined above are also likely to prevent PMSC liability under the Australian federal criminal legislation.

Conclusions

Governments all around the world have been taking advantage of the cost-effective and efficient services that PMSCs provide to their armed forces. However, as demonstrated by the case of URG, there is a risk that such companies can violate international law during the course of their operations. Accountability mechanisms under IHL, IHRL and ICL are not yet sufficiently developed to tackle the introduction of a private actor into the military sphere, which has traditionally been reserved exclusively for States. URG’s cost-cutting moves may well have implications for the human rights of the local Iraqi population, but there appears to be no certain corresponding way in which these branches of international law can hold URG criminally responsible if such violations do occur.

Anna John is a final year Law/Arts student at the University of Queensland. She works as a research assistant at the University of Queensland’s T. C. Beirne School of Law. Anna was recently a guest researcher and research assistant at the Max Planck Institute of Comparative Public and International Law in Heidelberg, Germany.

Australia-China relations: A lawyer’s perspective — David Douglas

Editors Analysis, Articles

Recently, the Australia-China Youth Association (ACYA) hosted Australia-China Emerging Leaders’ Summits (ACELS) in Shanghai and Sydney respectively, which brought together many prominent youth delegates from the two nations. Legal practice in the Asia-Pacific region was a strong focus. Amongst the delegates and networking participants, there were a number of legal practitioners and law students from both Australia and the People’s Republic of China. Additionally, interesting conclusions were reached regarding the prevalence of legal issues for cross-border commercial activities between the nations.

Foremost, government and business leaders from the two countries attended ACELS. The consistent message coming across was one that all lawyers will be familiar with — the complexity of navigating regulatory regimes between Australia and China. Despite an overall decrease in regulation (a result of the China-Australia Free Trade Agreement and similar initiatives), the primary challenges facing businesses that aim to have bilateral operations still appear to be legal requirements of compliance with regulatory systems and effective communication with relevant regulators. Without knowledge of the precise regulatory limitations for a business’ operations in a jurisdiction, it is difficult for companies to achieve commercial certainty. It is imperative to understand the existing law and its practical application. Attendees highlighted that an absence of this knowledge acts as a ‘legal handbrake’ on prospective commercial operations.

An Australian company, whose operations in China are about 1/50 the size of their presence in Australia, provided the following example. Despite this overwhelming difference in size, it must complete double the number of reports in China as in Australia for regulatory compliance,. Evidently, the complexity of regulatory requirements places substantial burdens on the company, whose operations in China are not large. For the majority of foreign companies operating in China, this appears to be a shared experience — the inability to obtain commercial certainty can hamper their investment options.

Importantly however, Chinese companies looking to invest in Australia have faced similar difficulties. Many large-scale proposed investments appear before the Foreign Investment Review Board, or are so politically-charged that the project’s future becomes uncertain, such as Shanghai Pengxin’s involvement in a bid for the Kidman pastoral empire (see for example this ABC article). Similarly, the recent approval of the bid by Chinese company Landbridge to operate the Port of Darwin has been highly controversial and subject to intense public scrutiny (see for example this ABC article).

These shared experiences at ACELS helped delegates to realise the high demand for cross-border commercial legal practice. Many commercial law firms specialise in advising foreign clients on the local regulatory environment, which presents an opportunity to the next generation of emerging commercial lawyers. They will need to be equipped with fluid skillsets, that enable them to not only advise clients on their home jurisdiction, but to collaborate with colleagues overseas in order to provide seamless advice that gives clients a holistic appraisal of regulatory conditions in each jurisdiction and the interplay between them. Following a string of newly signed free trade agreements between Australia and our major Asian trading partners in China, South Korea and Japan, much larger numbers of companies and investors will be exposed to the legal and regulatory difficulties associated with cross-border business. Naturally, this will lead to an increase in the demand for legal expertise in dealing with these issues.

David Douglas, President of the Australia-China Youth Association and graduate lawyer at a leading international law firm.

Setting the Boundaries in the Timor Sea: The Prospects of Renewed Negotiations between Australia and East Timor – Esther Pearson

Editors Articles

The issue of maritime boundaries in the Timor Sea is once again live following a request from East Timor’s Prime Minister, Rui Araugj, to Prime Minister Malcolm Turnbull that the leaders meet to discuss a permanent maritime boundary. According to Dr Araujo, the existing arrangements governing the exploitation of gas and oil resources in the Timor Sea are not consistent with East Timor’s entitlements under international law. Mr Turnbull has offered to hold ‘frank and open’ discussions about the border, while the Shadow Minister for Foreign Affairs, Tanya Plibersek, has said that the Australian Labor Party, if successful at the Federal election, would negotiate in ‘good faith’ and would submit the matter to international arbitration if negotiations were to fail. This article discusses the background to the dispute and the current arrangements between Australia and East Timor, as well as the possible outcome of any arbitration.

Background and Current Arrangements

In 1972, Australia and Indonesia entered an agreement on maritime boundaries in the Timor Sea, with the final boundary being divided into two sections separated by a gap, in recognition of the existence of what was, at the time, Portuguese Timor. The gap became known as the ‘Timor Gap’, and the ‘Timor Gap Zone of Cooperation’ was established between Australia and Indonesia. On 20 May 2002, the date of East Timorese independence, Australia and East Timor entered into the ‘Timor Sea Treaty’ (‘TST’), which established a Joint Petroleum Development Area (‘JPDA’) over the central part of the Zone of Cooperation. The southern boundary of the JPDA representing the median line between Australia and East Timor. Under Article 2 of the TST, the issue of maritime boundaries was set aside without prejudice to the States’ future rights to negotiate a permanent boundary. It was agreed that East Timor would receive 90% of the revenue from the exploitation of the gas and oil deposits in the JPDA and Australia would receive 10%.

On 6 March 2003, the Sunrise International Unitisation Agreement (‘Sunrise IUA’) was signed between Australia and East Timor that unitised the fields that straddled the eastern side of the JPDA into the ‘Greater Sunrise’ field. The Sunrise IUA deemed 20.1% of the field to lie within the JPDA, meaning that, as East Timor was to receive 90% of the revenue under the TST, it would receive 18.1% of the revenue from the Greater Sunrise field. East Timor considered this arrangement to be unacceptable and refused to ratify the agreement.

Negotiations concerning the exploitation of the Greater Sunrise field resumed in 2004, eventuating in the signing of the Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS’) on 12 January 2006. Article 2 of CMATS provides that the treaty is without prejudice (inter alia) to the States’ legal position regarding maritime boundaries, while Article 12 defers each States’ boundary claims for up to 50 years. Under Article 5, Australia and East Timor are to share the revenue from the exploitation of the field equally, despite that around 80% of the field lies outside the JPDA and within Australia’s continental shelf.

Legal Context

The key legal instrument governing the law of the sea is the United Nations Convention on the Law of the Sea (‘UNCLOS’). Articles 56 and 57 of UNCLOS allow States to declare an Exclusive Economic Zone (‘EEZ’) of up to 200 nautical miles (‘nm’), in which the State has sovereign rights to explore, exploit, converse and manage natural resources in the seabed, subsoil and water column. Articles 76 and 77 entitle States to a continental shelf that extends to the outer edge of the continental margin, or to a distance of 200 nm from the territorial sea baseline, in which the State has sovereign rights to explore and exploit the seabed and subsoil.

In the case of States with opposite coasts less than 400 nm apart, it is necessary for the States to agree, or for an independent body to decide, on the delimitation of the States’ maritime boundaries. Article 74 of UNCLOS relevantly provides (inter alia) as follows:

  1. ‘The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the State of the International Court of Justice, in order to achieve an equitable solution.
  2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

Article 83 of UNCLOS addresses the delimitation of the continental shelf and is substantially in the same wording as Article 74.

The Current Situation

East Timor asserts that the north/south boundary between Australia and East Timor should be determined on the basis of equidistance. Given that the southern boundary of the JPDA represents the median line between the States, this would effectively bring the entirety of the JPDA within East Timor’s EEZ. East Timor also wants to shift the eastern and western laterals (the sides of the JPDA) further in each direction. This would bring a greater proportion of the Greater Sunrise field within the JPDA.

Australia, on the other hand, has traditionally argued that the delimitation of continental shelves in the Timor Sea should reflect the ‘natural prolongation’ of each States’ land territory under the sea. This would lead to the formation of two separate continental shelves separated by the Timor Trough, with Australia’s continental shelf extending significantly further than that of East Timor. Australia also refutes East Timor’s claims to the east and west of the JPDA. These opposing attitudes are likely to make it difficult for an agreement to be reached through negotiation.

Articles 74(2) and 83(2) of UNCLOS provide that if no agreement can be reached through negotiation, the States should resort to the procedures enshrined in Part XV. Under Part XV, each State that accedes to or ratifies UNCLOS is to choose whether any dispute will be submitted to the International Tribunal for the Law of the Sea (‘ITLOS’), the International Court of Justice (‘ICJ’) or an arbitral tribunal. On 21 March 2002, in submitting to the jurisdiction of ITLOS and the ICJ, Australia declared that it did not accept any of the dispute resolution procedures in the case of maritime boundary disputes. On 25 March 2002, Australia made a reservation under Article 36(2) of the Statute of the International Court of Justice as to the jurisdiction of the ICJ to resolve disputes over maritime boundaries.

Possible Outcome of Arbitration

This leaves East Timor with the possibility of submitting the matter to international arbitration, should the Australian government be willing. While the arbitrator/s would not be bound by the jurisprudence of ITLOS and the ICJ, the principles established by these bodies are likely to have some influence on the outcome. Despite the finding of the ICJ in North Sea Continental Shelf (Federal Republic of Germany/Netherlands) that natural prolongation should be a significant factor guiding the delimitation of the continental shelf, more recently, the concept of equidistance has been given primacy (see, in particular, Continental Shelf (Libyan Arab Jamahiriya/Malta)).

In its judgment in Maritime Delimitation in the Black Sea (Romania v Ukraine), the ICJ developed a three-step approach to the delimitation of States’ boundaries with opposite coasts. Firstly, a provisional median line is drawn between the coastal States. Secondly, any factors that require an adjustment to the provisional line to achieve an equitable result are considered. Finally, to ensure the result is equitable, the ratio between the States’ coastal lengths and maritime areas, with reference to the adjustment line, are compared. As there are no obvious factors requiring an adjustment to the provisional median line between Australia and East Timor, it is reasonable to expect any arbitral tribunal to find in favour of an equidistant north/south boundary.

In terms of the eastern and western JPDA laterals, an opinion prepared by three public international law specialists, Vaughan Lowe, Christopher Carleton and Christopher Ward, considers that the laterals should move further in each direction. According to the opinion, the western lateral proceeds from the incorrect point on East Timor, and, should the lateral proceed from the correct point, the line would move somewhat to the west. In addition, the eastern lateral gives disproportionate effect to the western Indonesian island of Leti. This means that all points on the lateral are equidistant between East Timor and Leti, resulting in the eastern boundary being closer to East Timor. If half or three-quarters effect were given to Leti, consistent with ICJ jurisprudence (see Continental Shelf (Tunisia/Libyan Arab Jamahiriya), the eastern lateral would move significantly to the east, placing most, or all, of the Greater Sunrise field with East Timor’s EEZ. This also points towards an arbitral tribunal finding in favour of East Timor.

Conclusion

The issue of maritime boundaries in the Timor Sea is the cause of considerable tension between Australia and East Timor. The foregoing analysis suggests that East Timor’s Prime Minister may, in fact, be correct to say that the existing arrangements do not reflect East Timor’s entitlements under international law. With this in mind, the outcome of the upcoming Federal election may bring about a significant change in the relationship between the two Asia-Pacific neighbours.

Esther Pearson is Assistant Editor of the ILA Reporter.

Discussion of the ALRC’s Report on Encroachment on Rights and Freedoms in Australia – Alexis Hedger

Editors Articles

On 2 March 2016, the Australian Law Reform Commission (ALRC) tabled its latest report. The report, entitled ‘Traditional Rights and Freedoms-Encroachments by Commonwealth Laws’ (‘Freedoms Inquiry’), responds to the terms of reference of the Commonwealth Attorney-General, which ask the ALRC to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges – namely those recognised by the common law.

For the purposes of the inquiry, laws that encroach upon traditional rights, freedoms or privileges are understood to be laws that, inter alia, ‘reverse or shift the burden of proof’, ‘deny procedural fairness to persons affected by the exercise of public power’, ‘interfere with freedom of speech, religion, vested property rights or freedom of movement’ or ‘retrospectively change legal rights and obligations’ (Freedoms Inquiry, pg. 5).

The ALRC, in addressing the mandate, considered the source and rationale of each right, and the protections afforded through it, under both Australian and international law. The Report observed that the Australian Constitution ‘expressly protects a handful of rights’, and has been found to imply certain others, such as freedom of political communication (Freedoms Inquiry, para. 1.8). Internationally, many of the relevant rights have been enshrined in human rights treaties, to which Australia is a signatory, affording limited protection under international law.

 The International Covenant on Civil and Political Rights (ICCPR) is perhaps the most well-known and influential human rights treaty. Under Article 4, the ICCPR provides for the derogation of certain rights, where governments can temporarily suspend the operation of certain rights in times of ‘public emergency’. However, Article 4(2) makes clear that no derogation is permitted from a number of articles, including inter alia the right to life (Article 6), freedom from torture or cruel, inhuman or degrading treatment (Article 7) and freedom from the operation of retroactive criminal law (Article 15).

According to the Australian government, this same suite of non-derogable rights can be further classified into ‘absolute’ or ‘non-absolute’ rights. Absolute rights are those which ‘no circumstance justifies a qualification or limitation upon them’, and are identified by the government as freedom from torture and other cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, freedom from imprisonment for inability to fulfil a contractual obligation, a prohibition against the retrospective operation of criminal laws and right to recognition before the law. Whilst under the ICCPR, the right to life enshrined in Article 6 is non-derogable, the Australian government classifies it as a non-derogable non-absolute right, where limitations can be applied. According to the government, the right to life is expressed as a freedom from ‘arbitrary’ deprivation of life, indicating that certain circumstances may ‘justify the taking of life, where necessary, reasonable and proportionate’. Furthermore, Article 18 of the ICCPR, which provides for the non-derogable right to freedom of religion, is subject to a limitation in Article 18(3) which allows only such limitations as are ‘necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.

Whilst international law can be an important common law influence, it does not create binding domestic law and, most importantly, does not ‘abrogate the power of the Commonwealth Parliament to make laws that limit rights’ (Freedoms Inquiry, para. 1.9). International law works in a number of other ways to protect rights, when those rights are not explicitly incorporated into our domestic law. For example, Australia has human rights reporting obligations, and the United Nations Human Rights Committee considers communications from individuals with complaints of human rights violations. There are a number of governmental processes that operate to scrutinise laws and their compatibility with our international human rights obligations. For example, the Parliamentary Joint Committee on Human Rights must examine all bills or legislative instruments that come before parliament for their compatibility with human rights. The ALRC itself is required by legislation to ‘aim to ensure its recommendations are consistent with Australia’s international obligations’ (Australian Law Reform Commission Act 1996 (Cth), s 24(1)). Nonetheless, international law itself cannot operate to ‘override clear and valid provisions of Australian national law’ (Minister for Immigration v. B).

The Freedoms Inquiry identifies an extensive number of Commonwealth laws that potentially limit common law freedoms. The Terms of Reference mandated the ALRC was then mandated to ‘critically examine’ the laws to determine whether the encroachments upon those rights and freedoms are appropriately justified. The ALRC identified proportionality as one of the major tools utilised in the determination of the justification of laws and drew upon it in its consideration of the justification for the laws (Freedoms Inquiry, para. 1.14).

Proportionality ‘involves considering whether a given law that limits rights has a legitimate objective and is suitable and necessary to meet that objective, and whether – on balance – the public interest pursued by the law outweighs the harm done to the individual right’ (Freedoms Inquiry, para 1.15). Proportionality has been adopted as a tool by Australian courts in determining the constitutionality of certain laws, often considered within the well-known test of whether a law is ‘reasonably appropriate and adapted to serve a legitimate end’ (Freedoms Inquiry para. 2. 66).

The ALRC highlighted laws which may be unjustified, and therefore warrant further review. It did not, however, come to specific conclusions about the justification for each law, ‘as further evidence and analysis would be necessary to support such specific conclusions’ (Freedoms Inquiry para. 1.18). Essentially, the scope of rights it considered, from freedom of speech to property rights, was too broad for the ALRC to put forth detailed recommendations for each substantive area.

Freedom of speech is one example of a right subject to limitations that potentially fall short of the common law proportionality test. Furthermore, the scope of the freedom itself in Australia is narrower than that enshrined in instruments such as the ICCPR. Whilst freedom of speech is considered one of the ‘fundamental values protected by the common law’ (Nationwide News v. Wills), in Australia it is essentially limited to political communications that are ‘necessary for the effective operation of that system of representative and responsible government provided for by the Constitution’ (Lange v. Australian Broadcasting Corporation). There are numerous precedents illustrating the freedom does not extend to non-political communication (Freedoms Inquiry, paras. 4. 25 – 4. 27). Australia is the only democratic country that does not protect freedom of speech in a national constitution or enforceable human rights legislation.

Under the ICCPR, however, a much broader protection for freedom of speech is provided for. It includes protection of ‘political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching and religious discourse’. Nonetheless, the ICCPR and the related Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights still provide guidelines as to when rights, including freedom of speech may be subject to limitations. Generally, they may be restricted in order to pursue legitimate objectives such as the protection of reputation and public safety.

The modern offence of advocating terrorism under s 80.2C of the Criminal Code Act 1995 (Cth) (Criminal Code) was identified by the ALRC as one which may encroach upon this common law freedom. The Criminal Code makes it an offence if a person advocates the doing of a terrorist act or the commission of a terrorism offence, and is reckless as to whether another person engages in that conduct as a consequence. A person ‘advocates’ the doing of a terrorist act if the person ‘counsels, promotes, encourages or urges’ it. The offence was considered by the Parliamentary Joint Committee on Human Rights (‘Committee’), which concluded that the provision was ‘likely to be incompatible with the right to freedom of opinion and expression’ as enshrined in Article 19 of the ICCPR.

The concerns of the Committee, which is mandated to consider compatibility with international law, is that a number of provisions in the Criminal Code already operate to restrict speech that incites violence, and expressed concern that the advocating terrorism offence was ‘overly broad’ in its application, particularly as the offence only requires a person to be reckless as to the consequences of their words or conduct (Freedoms Inquiry, para. 4.80). The Committee acknowledged the Attorney-General’s response that such an intention requirement is necessary because often there is a lack of sufficient evidence to meet the threshold required by other incitement of violence offences, which is an intention for violence to occur as a result of a person’s conduct. Nonetheless, the Committee concluded that it would be ‘appropriate to further clarify the meaning of “advocate” to assist people in “prospectively knowing the scope of their potential criminal liability”’ (Freedoms Inquiry, para. 4.84). These concerns were not incorporated into the Bill. A number of submissions to the Freedoms Inquiry, incorporated directly into the report, further emphasised concerns with the limitations of the law, particularly in relation to its limitations on ‘the capacity for individuals to voice their views and opinion on terrorism and overseas conflicts’ (Freedoms Inquiry, para. 4.86), as well as the use of a recklessness standard.

The ALRC concludes that s 80.2C should be subject to further review to establish whether it, among with several other laws which encroach upon freedom of speech, unjustifiably limits the freedom.

The Freedom Inquiry is comprehensive in scope, and merits careful study by anyone interested in the relationship between statutory laws, common law rights and broader public interests. This report is a result of widespread community engagement and consultation and careful legal analysis, and provides a comprehensive and thorough response to the Attorney-General’s mandate.

Alexis Hedger is Assistant Editor of the ILA Reporter.

 

Case Analysis – Plaintiff M68/2015 v Minister for Immigration and Border Protection – Esther Pearson

Editors Articles

Introduction

The High Court of Australia delivered its judgment in Plaintiff M68/2015 v Minister for Immigration and Border Protection on 3 February 2016. The primary issues raised in the case related to whether the plaintiff’s detention at Nauru was authorised by a valid law of the Commonwealth, insofar as it was a valid exercise of executive power under section 61 of the Constitution of Australia. However, the case also raised questions of private international law in relation to the laws and Constitution of Nauru. This article will focus on these questions.

Background

The plaintiff was a Bangladeshi national who arrived in Australia as an ‘unauthorised maritime arrival’ (UMA) under s 5AA of the Migration Act 1958 (Cth) (the Act). She was detained and taken to Nauru on 22 January 2014 pending the resolution of her claim for refugee status pursuant to s 198AD(2) of the Act.

Upon arrival in Nauru, the plaintiff was granted a Regional Processing Centre visa (RPC visa). Pursuant to regulation 9(6)(a) of the Immigration Regulations 2013 (Nauru) (the Regulations), the plaintiff’s RPC visa specified that the plaintiff must reside at the Nauru Regional Processing Centre. As the plaintiff was a UMA taken to Nauru under section 198AD of the Act, the plaintiff was a ‘protected person’ under the Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru) (RPC Act). Under section 18(1) of the RPC Act, a protected person was not to leave the Centre without permission, and any protected person who attempted to do so committed an offence.

The Commonwealth submitted that its participation in the plaintiff’s detention was authorised by section 198AHA of the Act. That section applies when the Commonwealth enters into an arrangement in relation to the regional processing functions of a country, and provides that the Commonwealth may take any action in relation to the arrangement. Section 198AHA(5) defines ‘regional processing functions’ to include ‘the implementation of any law… by a country in connection with the role of the country as a regional processing country’.

Questions of law

The parties agreed on a number of questions for the consideration of the Court. The questions of present relevance are:

Question 3

Were the laws by which the plaintiff was detained on Nauru contrary to the Constitution of Nauru?

Question 7

If the plaintiff were returned to Nauru, would her detention there be contrary to [a]rt 5(1) of the Constitution of Nauru?

Article 5(1) of the Constitution of Nauru provides relevantly:

No person shall be deprived of his personal liberty, except as authorised by law in any of the following cases:

…

(h)        for the purpose of preventing his unlawful entry into Nauru, or for the purpose of  effecting his expulsion, extradition or other lawful removal from Nauru.

The plaintiff submitted that the RPC Act did not fall within the terms of article 5(1)(h) of the Constitution of Nauru because the detention was not ‘for the purpose of effecting… expulsion… or other lawful removal from Nauru’. The plaintiff further submitted that, for this reason, section 198AHA of the Act did not authorise the Commonwealth’s participation in her detention, as the regional processing functions of a country only include the implementation of laws that were lawful under the constitution of the regional processing country, thereby meaning section 198AHA did not apply to the arrangement between the Commonwealth and Nauru.

Conclusions

As identified by French CJ, Kiefel and Nettle JJ (at [48]), the questions and submissions raised the question of whether an Australian court should express a view as to the constitutionality of foreign legislation. French CJ, Kiefel and Nettle JJ — with whom Bell J agreed (at [102]) — found that while there may be some cases where an Australian court must make conclusions as to the legality of another country’s conduct under its own laws, such cases are rare and this was not one. Their Honours found that the plaintiff’s case concerned the Commonwealth’s conduct, and whether this was authorised by a law of the Commonwealth. Consequently, the Commonwealth’s defence did not require any consideration of the validity of the laws of Nauru (at [48]–[49]). Gageler and Gordon JJ came to similar conclusions (see [187] and [414] respectively).

Keane J considered in greater depth the questions and submissions put in relation to the laws of Nauru, and the construction of section 198AHA of the Act. His Honour quoted a passage of the majority of the High Court in Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 (the ‘Spycatcher case’), adopting the dictum of Fuller CJ in Underhill v Hernandez 168 US 250 (1897) (‘Underhill’) that, generally, ‘courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign’s own territory’. In the passage, their Honours also state that the principle rests partly on ‘international comity and expediency’ and is a principle of ‘judicial restraint or abstention’, ‘inherent in the very nature of the judicial process’.

His Honour then turned to consider the more recent Moti v The Queen (2011) 254 CLR 456 (‘Moti’). In that case, an accused was deported from the Solomon Islands to Australia. Commonwealth officials supplied the necessary travel documents knowing that the documents would be used to deport the accused in circumstances that were unlawful under the laws of the Solomon Islands. It was necessary for the High Court to determine whether the deportation was unlawful in considering whether to stay the prosecution of the charges against the accused on the ground of abuse of process. His Honour distinguished the present case on the ground that it was not necessary to determine the validity of the Nauruan legislation to resolve the interpretation of section 198AHA of the Act (at [257]).

Analysis

The principle articulated by their Honours in the Spycatcher case is commonly referred to as the ‘act of state’ doctrine, although that term has been criticised as being ‘vague and unsatisfactory’: Potter v Broken Hill Company Pty Ltd [1906] HCA 88 (O’Connor J) (‘Potter’). It is clear that an act of state encompasses the passage of legislation: Lucasfilm Ltd v Ainsworth [2011] UKSC 39 at [87]. The present case affirms this.

The High Court’s consideration of the doctrine in the present case sits squarely with examinations of principle following the Underhill decision. In Underhill, Fuller CJ expressed the principle in absolute and universal terms. However, it has since been recognised that courts may consider the legality of foreign governments in exceptional circumstances. In earlier decisions, such as Potter, the High Court expressed the exception in terms of whether the legality of the acts of the foreign country arose incidentally to the main issue(s) in the action. In more recent decisions, such as Moti, the exception has been expressed in terms of whether the court needed to come to a conclusion as to the legality of the conduct as a necessary step towards the ultimate decision (at [53]). French CJ, Kiefel and Nettle JJ adopted this expression of the exception in the present case (at [48]).

The result of the High Court’s decision is that the lawfulness of the Nauruan legislation remains to be tested. It should be noted that, however, following the hearing of the matter, regulation 9(6)(a) of the Regulations, which restricted the movement of RPC visa holders, was repealed, and an amended section 18C was inserted into the RPC Act establishing an ‘open centre’ allowing asylum seekers to move freely in and out of the centre 24 hours a day, seven days a week. These changes may be critical to any future analysis of the validity of the legislation.

Esther Pearson is Assistant Editor of the ILA Reporter.

Racial discrimination in Australia: (lack of) protection for Muslims — Jennifer Tridgell

Editors Analysis, Articles

Introduction

2015 brought an escalation of Islamophobia across the Western world. In the United States, Donald Trump called for creation of a Muslim register and restrictions upon Muslims entering the country. Worryingly, his inflammatory, and profoundly racist remarks resonated with many Americans, arguably by ‘merely indulging a [widespread] sentiment’ (Vox, 2015).

Meanwhile, Australian Muslims faced persistent abuse and discrimination, which intensified after the siege in Sydney’s Martin Place (AHRC, 2015). This is consistent with reports from the national Islamophobia Register. But 2015 also marked the 40th anniversary of the Racial Discrimination Act 1975 (Cth) (RDA).

In the words of Australian Race Discrimination Commissioner, Dr Tim Soutphommasane, this historic Act is not about punishing racism, but rather ‘protecting people against prejudice’. The RDA does not shelter Muslims, but only offers them ‘limited protection’, as a national consultation report by the Australian Human Rights Commission revealed. So why does an Act supposed to protect the most vulnerable groups in Australia from vilification, seem to fail?

A Matter of Definitions

For barrister Kate Eastman SC, the answer lies in delineating between the blurred definitions of race and religion. Whilst the RDA makes it unlawful to discriminate against a person on the basis of race, colour, descent, national origin or ethnic origin, it does not extend to religion (section 9). Yet since 1995, Jewish Australians have been comprehensively protected for sharing a common ‘ethnic origin’ (see for example the decision in Jones v Scully). This article calls for similar protection to be extended to Muslim Australians.

Uncertainty around scope of the term ‘ethnic origin’ creates difficulties for Australian courts, especially without clear definitions to guide statutory interpretation. Neither the RDA nor the treaty it incorporates, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), have defined the meaning of each ground for discrimination, such as ‘race’ or ‘ethnic origin’.

As Eastman notes, the ICERD Committee has argued that these terms are flexible and should be interpreted in light of contemporary circumstances. It asserted that religion is intertwined with issues of ethnic and racial discrimination, and expanded the scope of ICERD to encompass discrimination against Muslims, Jews and Sikhs, amongst others.

However, in Maloney v R the High Court of Australia rejected an approach to interpreting the RDA as a living or organic instrument. Rather than consider recent developments in international law, which could spark ‘informal modification’ (French CJ at [23]), the Court treated the RDA as an instrument of static meaning.

International Jurisprudence

Australia has largely followed two major cases for defining ethno-religious grounds of discrimination. First is the New Zealand decision of King-Ansell v Police, where the defendant was charged with vilification of Jewish people under New Zealand’s equivalent of the RDA. The Court treated ‘ethnic origin’ as a fluid concept, a ‘historically determined social identity’ (Richardson J at [543]) that stems from a common historical origin, and shared beliefs, customs and traditions.

Secondly, in Mandla v Dowell Lee the House of Lords ruled that a school was guilty of discrimination by refusing entry to a Sikh boy, who insisted on wearing his turban and not cutting his hair in compliance with school uniform standards. The majority favoured two different approaches. Lord Templeman took an essentialist stance to define Sikhs as an ethno-religious group based on ‘common colour and a common physique’. On the other hand, Lord Fraser treated ‘ethnic origins’ as a contemporary concept and social construct that evolves over time. By contrast, Australia’s treatment of ethno-religious identity has been inconsistent.

A Domestic Perspective

In New South Wales, courts have taken a narrow reading of ‘ethno-religious origin’ under the Anti-Discrimination Act 1977 (NSW). In Khan v Commissioner, Department of Corrective Services, an Indian Muslim prisoner claimed that refusal to provide halal food was discrimination based on his ethno-religious origin. His case was rejected, despite the fact that his Jewish inmates could request kosher food. Moreover, the Attorney-General of NSW expressly stated that the Act must recognise the link between race and religion, thereby deliberately clarifying that ‘ethno-religious groups such as Jews, Muslims, and Sikhs have access to racial vilification and discrimination provisions’. Despite the shortcomings of this approach, this case has not been overturned and remains the leading decision on ethno-religious discrimination in NSW.

To address this, the RDA should be amended to ensure greater protection for Muslims. Currently in Australia, it is sufficient that a person’s ‘ethnic origin’ is one of the factors in discrimination (RDA, section 18B). Yet where it is the sole factor, the victim does not have protection available. Additionally, attempts to distinguish between an individual’s religion and ethnic origins are often arbitrary and confusing. By either amending the RDA or adopting a national multicultural Act, as Professor Andrew Jakubowicz proposes, we can offer more comprehensive protection for vulnerable groups from ethno-religious discrimination in Australia.

Regardless of which approach is favoured, our government should consult all members of the community, including Muslims, on how to strength legislative protection. Finally, implementation is most effective when law is widely known and respected. Community education programs can raise awareness of the RDA, whilst also shaping a culture where racial discrimination is widely denounced.

Conclusion

Upon the enactment of the RDA, Prime Minister Gough Whitlam declared that it was a historic Act, which would ‘entrench new attitudes of tolerance and understanding in the hearts and minds of the people’. Over 40 years later, these sentiments are just as important today, especially as Islamophobia continues to sweep the Western world. If Australia is truly a land of the ‘fair go’, then Muslims clearly should have statutory protection from racial discrimination and vilification.

Jennifer Tridgell is a final year law student at Macquarie University and Assistant Editor of the ILA Reporter. She has previously worked at the Australian Human Rights Commission in the Race Discrimination team. This article is written in her personal capacity.

What’s the Big Deal? Legal Implications for Australians in the wake of the TPP — Anna John

Editors Analysis, Articles

The final stages of the Trans Pacific Partnership (TPP) negotiations were well-publicised in Australia, albeit hazy with regard to the implications of the agreement. Negotiations between Australia, the US, Japan and nine other Asia-Pacific countries over the mammoth deal have been ongoing for seven years. From an international law point-of-view, the fact that an agreement has been reached is in itself laudable.

DFAT has said that outcomes from the conclusion of the TPP include new market opportunities for exporters and investors, increased transparency of regulators frameworks, greater certainty for businesses, improved access for regional supply chains, and a reduction in bureaucratic processes. However, reactions to the deal so far have been mixed, and key economic commentators have concluded that the advantages and the disadvantages of the TPP are largely unremarkable (see for example, opinions by Ross Gittins, Joseph Stiglitz and Adam S. Hersh). Major changes to existing legislation as a result of the TPP are unlikely. There are, however, legal implications to be aware of.

Investor-state dispute settlement arrangements

One of the most contentious issues appears to be the investor-state dispute settlement (ISDS) mechanisms in the TPP. Australia initially maintained that it would not accept any arbitration mechanisms for investor-state dispute settlements. However, the final text of the TPP reveals that Australia has conceded to the ISDS provisions, which allow for the establishment of an arbitration tribunal specifically to adjudicate on claims arising from the operation of the TPP. As a result, foreign investors will be able to bring claims against a participating TPP country.

ISDS mechanisms can enable foreign investors to attack legislation enacted for the protection of the public interest. The best example of such a such a scenario is the Phillip Morris litigation. One of the avenues Phillip Morris used to challenge Australian plain-packaging legislation was the ISDS mechanism in the 1993 Australian bilateral investment treaty with Hong Kong. Recently, the Permanent Court of Arbitration dismissed the case, agreeing with Australia’s position that it did not have jurisdiction to hear the case.

Notably, the TPP disallows tobacco companies to challenge public health legislation. So Phillip Morris, for example, will not be able to seek relief under the TPP. Nevertheless, such free trade agreements can stand in opposition to public interest legislation. Article 9.15 of the the TPP’s Investment Chapter provides that a signatory party is not prevented from legislating in the public interest. However, there is a clause allowing non-discriminatory public welfare legislation to be challenged ‘in rare circumstances’, at appendix 9-B, clause 3(b). Effectively, this can give rise to challenges against legislation that protects legitimate public welfare objectives.

Intellectual property

The Intellectual Property Chapter of the TPP was crucial to the conclusion of the negotiations, especially for the Australian delegation.

The TPP and pharmaceuticals

One of the central issues was the length of the data exclusivity period, especially for biologics. Biologics are a type of medicine made of protein-producing cells found in living organisms, and are used to treat a number of illnesses, including diabetes and cancer. Generic versions of biologics, known as biosimilars, can be manufactured in Australia after a minimum of five years since the release of the biologic. This is known as the data exclusivity period.

The US pushed for a twelve-year minimum data exclusivity period during the negotiations. However, according to the final text of the TPP, the agreed data exclusivity period is five years. Since this is the same level of protection that is afforded to biologics under Australian legislation, there is no real impact here.

The TPP and copyright

Once again, it is unlikely that there will be any major change to domestic copyright laws. DFAT has confirmed that provisions under domestic legislation relating to copyright terms, patents and Internet Service Provider liability are all consistent with the TPP’s standards. Notably, there will likely be no introduction of new civil or criminal penalties for individuals who download movies illegally.

The biggest legal implication here for the Asia-Pacific region involves the TPP’s provisions on counterfeit and pirated goods. The TPP requires signatory countries to legislate against the use of counterfeit and pirated goods. This includes expanding the range of offences for counterfeit or pirated labels and packaging, broaden powers to allow the forfeiture of counterfeit or private goods, and ensuring that adequate damages are available for copyright and trademark infringement. Within the Asia-Pacific region, this may have large implications, given that the large majority of counterfeit goods originate from the Asia-Pacific region (mostly from China, but also from Malaysia, a TPP signatory). These countries will now be required to legislate according to the TPP’s provisions. This is a welcome development for Australia.

Finance Expats in the Asia-Pacific Region

Under the TPP, the Australian financial sector has more opportunity to integrate with those in the Asia-Pacific region. Australian bank and asset managers have been seeking expanded growth in Asia, with a focus on financial services exports. This includes lowering restrictions for Australian professionals to work in Australian financial companies overseas. Some countries within the Asia-Pacific region limit the number of foreign persons that can hold senior managerial positions in a financial institution in their country. The TPP places a cap on these restrictions, and also provides for special visa arrangements that will allow such professionals more certainty during their stay overseas. This is outlined by DFAT, announcing that Australian financial institutions will be ‘guaranteed’ the option to transfer specialists and managerial staff to their overseas branches for extended periods. Conversely, such provisions will also lead to an increase in financial services (and expats) from Asia-Pacific countries.

Where does the TPP leave us?

Overall, the TPP is a good deal for Australia, and promotes Australian involvement in the Asia-Pacific. Legally, the biggest uncertainty is what the ISDS provisions will entail. While an exception has justifiably been made for tobacco companies, the clause allowing public welfare legislation to be challenged is perturbing. For example, under a similar ISDS mechanism, a US investor was able to sue Costa Rica on the basis that its environmental legislation impeded their business interests, thus contravening a free trade agreement. As has been pointed out, ‘tobacco control measures are not the only policies worth protecting’. Litigation against public welfare legislation is detrimental to the public interest, can encroach on national sovereignty in a negative way, and could ultimately lead to the public expenditure of millions in legal fees.

A further (albeit political) consideration for Australia is its relationship with the US. Australia has an important role to play in the imminent economic dominance of the Asian countries. A criticism often brought against the TPP is that it preserves US interests in the Asia-Pacific region in the face of growing Chinese influence. Tellingly, the negotiations (released on Wikileaks)showed a reluctance on Australia’s part to step away from its alignment with US interests and establish itself as an important regional player in its own right. For example, Australia’s position in the negotiations lined up with the US 64 times. This was higher than its alignment with the next highest, Peru (54 times) and Singapore (51 times). Additionally, Australia ranked second last in terms of the support drawn by its proposals. The dominance of Asia-Pacific region should lead to a convergence in regional interests, but Australia appears to be taking a step away from this direction.

The TPP is an important step towards economic integration within the Asia-Pacific region. This is not without legal implications, and while many aspects of the deal are welcome and needed, a better outcome could be achieved in others.

Anna John is a final year Law/Arts student at the University of Queensland. She works as a research assistant at the T. C. Beirne School of Law. Anna was recently also a guest researcher and research assistant at the Max Planck Institute of Comparative Public and International Law in Heidelberg, Germany.

International Court of Justice rules on preliminary objections in Bolivia–Chile territorial dispute — Timothy Gorton

Editors Analysis, Articles

Introduction

On 24 September 2015, the International Court of Justice (ICJ) handed down judgment in the preliminary objections phase of a dispute between Bolivia and Chile.  Contrary to Chile’s submissions, the ICJ determined that it had jurisdiction to consider the dispute, which concerns whether Chile is obliged to negotiate and grant sovereign access to the Pacific Ocean to the otherwise landlocked Bolivia.  The proceedings are interesting not only because of the Bolivia’s intriguing claim, but also because they relate to peace treaties signed by the parties at the start of the 20th century.

Context of the dispute

As The Economist succinctly puts it, ‘Bolivia has all the trappings of a maritime power except an actual coastline’, having a merchant navy and a National Day of the Sea. Indeed, at independence in 1825, Bolivia had territorial access to the Pacific Ocean.  In 1879, territorial disputes over the Atacama Desert (and the valuable mining opportunities within) led Chile to declare war on Bolivia and its ally Peru. An initial armistice between Chile and Bolivia was signed in 1884 and a final settlement was reached in 1904 (1904 Peace Treaty), under which Bolivia ceded its coastal territories and became a landlocked country.  Bolivia has attempted to reclaim the territory through diplomatic means for the past century, most recently inserting its claim into its 2009 Constitution (see article 267 of the Constitución Política del Estado de Plurinacional de Bolivia).

In 1948, Bolivia and Chile signed the American Treaty on Pacific Settlement (also known as the Pact of Bogota), a treaty committing states to the peaceful resolution of disputes and conferring jurisdiction on the ICJ (under article XXXI).  Relevantly, article VI of the Pact of Bogota states that the procedures established by the treaty

may not be applied to matters already settled by arrangement between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty.

The effect of this article is to exclude from the ICJ’s jurisdiction any dispute that had been settled prior to the Pact of Bogota.

History of the proceedings — Application by Bolivia

Bolivia filed its application with the ICJ in April 2013, requesting that it make declarations that Chile is obliged to negotiate sovereign access to the Pacific Ocean for Bolivia, in good faith, and that Chile had breached this obligation.  The ICJ’s jurisdiction over the dispute was based on article XXXI of the Pact of Bogota.

The substance of Chile’s obligation is founded on a number of diplomatic exchanges and resolutions since the 1904 Peace Treaty, including:

  • an exchange of notes (1950) and Memorandum of Understanding (1961) between the two governments to the effect that the two states should enter into negotiations for Bolivia to be given its own access to the Pacific Ocean (Application [17]–[19]);
  • Negotiations in 1975 between the two governments, during which Chile reaffirmed its in-principle preparedness to negotiate with Bolivia. During negotiations in 1986 Chile had rejected Bolivia’s proposals (Application [20]–[22]);
  • A joint agenda in 2006 by the two governments on issues that included Bolivia’s maritime access (Application [26]);
  • Resolutions of the General Assembly of the Organization of American States urging the two states to negotiate coastal access for Bolivia (Application [23]–[25]); and
  • Statements and requests by the President of Bolivia (Application [27]–[29]).

The effect of these events as alleged by Bolivia is that

Chile has committed itself, more specifically through agreements, diplomatic practice and a series of declarations attributable to its highest‑level representatives, to negotiate a sovereign access to the sea for Bolivia.  Chile has not complied with this obligation and, what is more, at the present date Chile denies the very existence of its obligation (Application [31]).

History of the proceedings — Objection by Chile

Chile filed a preliminary objection  to Bolivia’s application in July 2014, claiming that:

  • The nature of the dispute concerns territorial sovereignty and Bolivia’s access to the Pacific;
  • These are matter that were settled conclusively in the 1904 Peace Treaty, and any subsequent negotiations or statements concern the same substantial matters; and
  • Consequently, the dispute is not justiciable by operation of article VI of the Pact of Bogota, which excluded disputes already settled by treaty or award.

In its response, Bolivia stated that Chile has misconstrued the subject matter of the dispute — it is about obligations to negotiate that are separate from the 1904 Peace Treaty.  The judgment of the ICJ made in December concerned whether Chile’s objection was correct and what the proper subject matter of the dispute was.

Judgment of the majority

The ICJ handed down several judgments, but ruled 14–2 in favour of Bolivia, rejecting Chile’s objections.  First, the majority judgment rejected Chile’s characterisation of the subject matter of the dispute.  The Court determined that it is not being asked to determine the character of what Bolivia’s access to the ocean is or what the outcome of any negotiation should be.  Instead, the character of the dispute is whether Chile, by its actions, has created an enforceable obligation to negotiate with Bolivia and whether Chile has breached that obligation (Majority Judgment [34]).

The majority rejected Chile’s second objection that the subject matter of the dispute was excluded from consideration because of article VI of the Pact of Bogota and the 1904 Peace Treaty.  Chile had submitted that the 1904 Peace Treaty was a conclusive territorial settlement, that it fell into the excluded categories in article VI and this dispute, by covering the same matters, was also excluded.  Bolivia had responded that the obligation and negotiations arose independently of the 1904 Peace Treaty and were therefore not excluded.  Given the conclusion drawn by the majority on the characterisation of the dispute, the majority agreed with Bolivia.  Bolivia’s application concerns a legal obligations created subsequent to and independent of the 1904 Peace Treaty, and therefore is not excluded by article VI (Majority Judgment [50]).

Additionally, the majority noted that it was satisfied that Chile’s objections were preliminary in character and could be properly addressed at an interlocutory stage.  The ICJ has three options of addressing a preliminary objection: upholding it; rejecting it; or holding that it is not exclusively preliminary in character and postponing consideration of the objection to the merits phase.  The majority considered that on the facts before it, it could rule whether the disputed issues had been settled by the 1904 Peace Treaty without making findings on the merits of the overall dispute.  Therefore, it was suitable to dispose of Chile’s objection at this time (Majority Judgment [52]–[53]).

Other opinions

The ICJ published four other opinions.  Briefly, they were:

  • Declaration of Judge Bennouna — His declaration criticised two paragraphs of the main judgment , wherein the majority had provided their opinion on a Bolivian subsidiary argument. Because the Majority’s decision rendered Bolivia’s subsidiary argument moot, Bennouna considered that discussion by the majority ‘pointless’. Having rejected Chile’s objection, it had implicitly regarded it as preliminary and there was no need to consider the subsidiary argument.
  • Separate Opinion of Judge Cancado Trindade — In a substantial separate opinion (that agrees with the majority’s orders), Judge Cancado Trindade gave an expanded treatment of the jurisdictional regime of the Pact of Bogota and article 79 of the ICJ Rules (which deals with preliminary objections), considering the majority’s consideration ‘far too succinct’. The separate opinion concluded that Chile’s objection is not of exclusively preliminary character and that its arguments should therefore be considered in the merits phase.
  • Declaration of Judge Gaja — His declaration also noted that disposing of Chile’s objection was not an exclusively preliminary matter. Judge Gaja considered that the Court could not have made a decision on jurisdiction without examining whether the matter purportedly settled by the 1904 Peace Treaty had been subsequently ‘unsettled’. This would have required consideration of the merits of the parties’ arguments and therefore the Court should have instead ruled that the objection should be heard as part of the merits phase.
  • Dissenting Opinion of Judge ad hoc Arbour — Arbour had been selected by Chile as its Judge ad hoc in the proceedings. In her dissent, she also considered that Chile’s objection was not exclusively preliminary and should have been postponed until the merits phase. In particular, she considered that the Court can only decide in the merits phase whether a Chilean obligation exists and whether the scope and content of that obligation falls within the exclusionary language of article VI.

A more substantial summary of the ICJ’s judgment and additional opinions is available here.

Moving forward

The ICJ has requested that Chile file its Counter-Memorial by 25 July 2016.  At this time, there is no further public indication of when the Court will hear the parties’ substantive arguments.  The dispute will remain of interest because of Bolivia’s unique argument that Chile has created an obligation to negotiate in good faith, and what the ICJ has to say about the existence or content of such an obligation may have ramifications for future diplomacy between states.

Timothy Gorton practices commercial litigation in Melbourne and is an Editor of the ILA Reporter.  He is a former Editor of the Melbourne Journal of International Law.  Any opinion expressed is the author’s alone.

 

32nd International Conference of the Red Cross and Crescent – Failures and Successes

Editors Articles

States at the 32nd International Conference of the Red Cross and Red Crescent (RC), held in Geneva between 8 and 10 December 2015, failed to agree on a new mechanism proposed by the International Committee of the Red Cross (ICRC) and the Swiss government to strengthen compliance with International Humanitarian Law (IHL).

Between 2012 and 2015, the ICRC undertook extensive negotiations regarding strengthening legal protection for victims of armed conflict. These consultations were undertaken following the adoption of a resolution in 2011 at the 31st International Conference of the RC. The resolution acknowledges that respect for IHL is lacking and that, as it currently exists, IHL does not provide effective mechanisms to stop violations when they occur.

The consultation process focused on two distinct areas of work. One area focused on options for enhancing IHL in regard to detention in non-international armed conflict (NIAC) (detention track). The other area looked at strengthening general compliance with IHL by states and non-state armed groups (compliance track).

Based on the consultations, the ICRC prepared concluding reports on the compliance track and the detention track. The reports set out the discussions undertaken as part of the consultations, as well as the recommendations of the ICRC based on the consultations. The draft elements of the resolutions put forward by the ICRC on the compliance and detention tracks of work were circulated for feedback by States taking part in the International Conference, and, on the basis of the feedback received, the ICRC prepared and circulated official drafts to be considered at the Conference.

The resolution in regard to the compliance track of work involved setting up an annual meeting of States party to the Geneva Conventions to discuss best practices and share expertise. The official draft also provided for the periodic review of the work, functions and tasks of the annual meeting by participating States to ensure compliance with the guiding principles of the resolution. However, States at the 32nd International Conference failed to reach agreement on the terms of the resolution, and instead adopted a resolution that involves launching an inter-governmental process to explore ways to strengthen compliance with IHL. The outcome of the process is to be presented at the 33rd International Conference.

States succeeded in agreeing on a resolution regarding the detention track of work. The resolution encourages States to pursue further work in collaboration with the ICRC with the goal of producing a document of a non-binding nature that ensures IHL remains practical and relevant to protecting persons deprived of liberty in non-international armed conflicts.