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Australian International Law Journal
Number of Followers: 22

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ISSN (Print) 1325-5029
Published by RMIT Publishing

[387 journals]

Volume 24 The Prosecutor v Jean-Pierre Bemba Gombo, Judgment of the
Appeals Chamber, No. ICC-01/05-01/08 A, International Criminal Court
- Abstract: Gauld, Kate
  In 2016 Congolese militia leader Jean-Pierre Bemba Gombo ('Bemba') was convicted by the Trial Chamber of the International Criminal Court ('ICC') of crimes against humanity and war crimes and sentenced to 18 years in custody. It was hailed as a landmark result for victims of mass atrocity: not only was Bemba the first offender to be convicted by the ICC for crimes of sexual violence, he was also the first to be convicted on the basis of 'command responsibility', a notoriously complex mode of liability in international criminal law.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Jesner v Arab Bank: The US Supreme Court Forecloses on
Accountability for Corporate Human Rights Abuses
- Abstract: Kolieb, Jonathan
  On 24 April 2018, the US Supreme Court handed down its decision in Jesner v Arab Bank. This is the latest in a string of lawsuits to reach the highest court in the United States brought against a non-American multinational corporation for serious human rights abuses committed beyond the borders of the US under the Alien Tort Statute ('ATS').
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 There are not plenty of fish in the Sea: PCA Case No. 2018-13 on
Ecuador's objection to a decision of the Commission of the South Pacific
Regional Fisheries Management Organisation
- Abstract: Levine, Judith; Pondel, Camilla
  In the 4th century BCE, Democritus said 'in a shared fish there are no bones'. More recently, however, the sharing of high seas fishery resources has caused bones to be picked within regional fisheries management organisations ('RFMOs').
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Delivering justice': The ECCC's verdict in case 002/02
- Abstract: Ryan, Sophie
  7 January 2019 marked 40 years since the capture of Phnom Penh and fall of the Khmer Rouge from power in Cambodia. Justice has been a long time in the making for the atrocities that led to the killing of roughly 20 percent of the Cambodian population between 17 April 1975 and 6 January 1979. Though criticised for many inadequacies, the Extraordinary Chambers in the Courts of Cambodia ('ECCC') has, for twelve years now, been the primary vehicle for achieving such justice. In what has been lauded as a verdict comparable to the Nuremberg judgment after World War II in its significance for Cambodia, the ECCC Trial Chamber on 16 November 2018 convicted Khmer Rouge leaders, Nuon Chea and Khieu Samphan, for genocide, crimes against humanity, and grave breaches of the Geneva Conventions in a summary of its judgment in Case 002/02 ('Summary Judgment').
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Conceptualising climate change in law as a threat to
international security and human rights
- Abstract: Peretko, Aneta
  The language of the climate change debate is obsessed with rights and risks. Does the right to clean water outweigh the risk of conflict over limited resources' Does the right to adequate housing outweigh the risks caused by climate-related population displacement' Does the right of one State to pollute its way to prosperity outweigh the risk of rising sea levels erasing one of its neighbours' The international community has struggled to deal with these questions of shared hazards, and struggled to emphasise climate change as a real threat causing human suffering and instability. It is no surprise then, that what has long been a stale debate over international and domestic environmental law has been revived through a number of alternative conceptions, particularly the characterisation of climate change as either a threat to international security or a violation of international human rights law. This article attempts to expound precisely what the stakes are for security risks and human rights when it comes to climate change, and precisely how the focus on security risks and human rights enhances or detracts from global action on climate change, drawing conclusions about how best to start mitigating and adapting to survive.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Brexit and choice of law in the law of obligations
- Abstract: O'Sullivan, Samuel
  With Brexit seemingly moving ahead, United Kingdom legislators have the rare opportunity to take stock and assess the future of their private international law. This article examines the three possible post-Brexit choice of law frameworks on which UK authorities could rely in the law of obligations. While evaluating these frameworks in whole would be an enormous task, this article specifically focuses on applicable law in the absence of choice for contractual obligations and applicable law in tort for non-contractual obligations. Each component of this article will touch on legal capacity, functionality and finally desirability. The three frameworks appear in order from: a return to the common law; reliance on the UK's pre-existing statutory framework; and finishes at enactment of the current European Union instruments into UK domestic law.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Arm sales to Taiwan: An act of aggression'
- Abstract: Walayat, Aaron J
  In the famous 1986 'Nicaragua' case, the International Court of Justice condemned the United States for breaching its obligations under customary international law not to intervene in the affairs of another State by 'training, arming, equipping, financing and supplying the contra forces'. Despite this condemnation, the United States under President Donald Trump has approved an arms sale to a non-State entity which claims to be the legitimate government of a territory, garnering an angry response from the other party in the conflict, a recognised UN Member State. However, in this instance, the sale is not covert arming as in Nicaragua but one of a series of sales that have taken place since the Carter administration, where the recognised State is not Sandinista Nicaragua, but the People's Republic of China, and the non-State entity is not the Contras, but the Republic of China, commonly known as Taiwan. This article is a legal analysis investigating whether the United States, by arming Taiwan, is committing an act of aggression similar to that alleged in the 'Nicaragua' case. It will begin by examining the political and legal status of Taiwan under both the constitutive and declaratory theories of Statehood. Then, it will discuss the historical relationship between the United States, China and Taiwan including the Three Communiques, the one-China policy, and current US law and policy toward China concerning Taiwan. There will then be a discussion of the definition of an act of aggression as well as a consideration of potential justifications of acts normally considered aggression including cases of civil war, self-defence and justified intervention. This article provides an analysis of a situation in which political pressures capture all parties in a stalemate where otherwise binding international precedent would hold.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Head of state immunity: The ongoing debate and implications for
the future development of international criminal law
- Abstract: Lee, Se Eun
  Nearly a decade on, the debate around the International Criminal Court's issuance of arrest warrants for the Sudanese President Omar Al Bashir remains heated, and the issue of his head of State immunity remains highly controversial. Recent developments, including Jordan's appeal against the Pre-Trial Chamber's finding of non-compliance with its obligations under the Rome Statute, and Kenya's request to the United Nations to refer the immunity question to the International Court of Justice, suggest a possible conclusion to the Al Bashir case in the near future. This article seeks to contribute to the ongoing debate around head of State immunity by interrogating the assumption that the ICC's removal of Al Bashir's immunity would necessarily benefit the development of international criminal law. It argues that under current state of international law, head of State immunity remains inviolable even before international courts. As a consequence, the article contends that the ICC's removal of Al Bashir's immunity, rather than advancing the fight against impunity, may actually do more harm than good for the future of international criminal law, and especially for the continuing legitimacy of the ICC.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Establishing the 'mens rea' of the crime of aggression in the
Rome statute of the International Criminal Court
- Abstract: Ziukelis, Dayna
  The International Criminal Court's jurisdiction over the crime of aggression was enacted on 17 June 2018 after twenty years in the making. It was not until 2010, twelve years after the adoption of the Rome Statute, that State parties settled on a definition of the crime. A further eight years later, the necessary preconditions to invoke the jurisdiction of the Court have been satisfied. Whilst much discussion in relation to the crime has centred upon the high bar to prosecution that has been set by jurisdictional hurdles and ambiguity in the definition of the State act of aggression, the likelihood of prosecutors being able to evidence the requisite mental state of the accused is a topic less traversed. The mens rea requirements of the crime will be integral to the process of determining individual criminal liability for uses of force that contravene article 2(4) of the UN Charter. The mens rea components of complex crimes are often conceptually difficult and the crime of aggression is no exception. This article examines the mens rea requirements corresponding to each element. In so doing, it finds that this aspect of the crime has been conservatively framed. While there are gaps that will need to be addressed by the International Criminal Court, the evidentiary burden for future prosecutors is not insurmountable.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Legal consciousness and the Australian Interactive Gambling Act
- the success of expert bureaucrats in transnational networks
- Abstract: Eulenstein, Kristy
  The 'Interactive Gambling Act 2001' (Cth) seeks to restrict both Australian and overseas operators from advertising and providing certain online gambling services to Australians. In 2017, the regime was reformed, including empowering the Australian Communications and Media Authority to engage within global networks. After a year of operation, indications are that the use of expert bureaucrats in transnational networks can effectively deliver Australian domestic policy - as large reputable offshore providers have pulled out of the Australian market or sought a licence to operate within Australia's law. This article uses the construct of legal consciousness to explore the key legislative reforms.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Australia's International Law obligations concerning food
security
- Abstract: Howard, Justine
  Throughout the world people depend upon food for their very survival. The challenges of ensuring food security in the developed world are different from the issues of food security facing the developing world. This article considers the notion of what food security means for a developed country. It examines Australia's international obligations concerning food security. Relevant international treaties and agreements that impact upon Australia's food security are considered. Whether changes to Australia's domestic laws concerning food security would violate Australia's relevant international obligations is reviewed. Ultimately this article discusses what is required to ensure that Australia's domestic legislative measures do not contravene its international obligations concerning food security.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Justification and excuse in international law [Book Review]
- Abstract: Anderson, Keilin
  Review(s) of: Justification and excuse in international law, by Federica Paddeu, Cambridge University Press 2018, ISBN 1107106206, 600 Pages.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 'Due regard' in the high seas: The tension between submarine
cables and deep seabed mining
- Abstract: Kroon, Danielle
  The high seas belong to no single country; the concept of freedom of the high seas forms the foundation of modern law of the sea. This can potentially lead to problems when two activities are allowed to co-exist in the same area, but there are no clearly defined obligations governing how they co-exist or who will be liable in the event of a dispute or damage. This is of particular relevance when considering submarine cables and deep seabed mining in areas beyond national jurisdiction. There is already an extensive network of submarine cables in the high seas, which are of vital importance for communications, military and other industries. Developments in technology have allowed for advances in deep seabed mining activities, and approvals for exploration have already been granted. Both activities are allowed to co-exist in the same area, with both industries required to give each other 'due regard' under law of the sea. Given the potential for damage, and the extensive costs and significant consequences that would be involved, it is necessary to understand what this obligation means and whether it is sufficient to protect the interests of relevant parties.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Foreword
- Abstract: Ward, Christopher
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Trump v. International Law: Who's winning'
- Abstract: Koh, Harold Hongju
  Donald Trump's presidency has thrown U.S. foreign policy into turmoil. The constant twists and turns have left bewildered observers in Australia and elsewhere asking: 'Who's winning' Trump or international law'' As Trump's immigration policies and on-again/ off-again North Korea policy illustrate, the law is pushing back against his assaults, leaving intact an uneasy status quo ante. Some have taken as evidence favouring Trump his narrow win before the Supreme Court in Trump v. Hawaii, the Travel Ban Case. This essay - from a recently published book by a former Legal Adviser to the U.S. State Department - reviews that 'victory' and explains why, at the end of the day, it may turn out to be 'pyrrhic.' But while for now, the guardrails of domestic and international law in the United States seems to be holding, Trump's actions and rhetoric are empowering authoritarians elsewhere who are antagonistic to the rule of law. Going forward, Professor Koh argues, who ultimately prevails will depend on the continuing support of America's rule-of-law allies, like Australia, and the resilience of our shared rule-of-law institutions.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 24 Outdated and unhelpful: The problem with the comity principle
and act of state doctrine
- Abstract: Ireland-Piper, Danielle
  The temptation in troubled times is to stretch the reach of power and authority. While this may, in some circumstances, be a reasonable response to issues with global and transnational dimensions, exercises of extraterritorial jurisdiction can provide the means by which such power becomes unchecked. This can be seen in the decision of the High Court of Australia in 'Plaintiff M68/2015 v Minister for Immigration and Border Protection', the effect of which was that the Commonwealth's extraterritorial conduct was not subject to the same checks and balances as would its domestic conduct. For this reason, the way in which courts adjudicate on extraterritoriality is important. Declining to adjudicate exercises of State power on the basis of comity and the act of state doctrine is an outdated and unhelpful response to the interconnectedness of legal regulation in the 21st century. In that context, I make three arguments: First, the comity principle and act of state doctrine are both unsatisfactory tools in the adjudication of extraterritoriality and ought to be abandoned. Second, the abuse of rights doctrine as it is understood in international law and the principles of State responsibility may be usefully 'transplanted' into the domestic domain when adjudicating on exercises of extraterritorial power by the state. And, third, the integration of international law doctrine into domestic public law contexts with dualist approaches can be characterised as a type of legal transplant. In so doing, I propose an additional formulation of the abuse of rights doctrine as it relates to the adjudication of extraterritorial jurisdiction.
  
  PubDate: Mon, 6 Jan 2020 20:12:29 GMT
Volume 23 Parallel proceedings in investment arbitration: Moving forward
after Orascom TMT investments v Algeria
- Abstract: Lee, Carroll
  Bilateral investment treaties typically include within the definition of "investment" shares or participation in companies. As a result shareholders are given direct rights of action against host States through the investment treaty (subject to any nationality requirements that the shareholder must fulfil to qualify as an investor). Investments are frequently carried out through locally incorporated companies often because the host State requires the establishment of a local company as a precondition for foreign investment. The locally incorporated company is in effect an instrumentality through which the foreign investor realises the investment. This means the participation in the locally incorporated company becomes the requisite investment and the foreign shareholder can claim damages resulting from the host State's treatment of the local company (eg diminution in value or shareholding). The current practice of arbitral tribunals does not distinguish between majority and minority shareholders. Likewise, the claimant may not be the immediate shareholder of the local company but may own shares indirectly through the intermediary of another company. This is because typically the definition of investment does not distinguish between direct and indirect shareholding and does not exclude indirect investment from its remit.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 Costs awards by international courts and tribunals: Key lessons
from Philip Morris v Australia
- Abstract: Tully, Stephen
  Philip Morris Asia Limited (PM Asia) commenced arbitration against Australia under a bilateral investment treaty challenging Australia's plain packaging legislation with respect to tobacco products. A tribunal decided that it lacked jurisdiction over the dispute and issued a costs award. The tribunal required PM Asia to reimburse Australia for a share of the arbitration costs and a portion of Australia's representation costs. The tribunal had regard to reasonableness, the relative success of the parties and other factors. This approach is assessed against other awards rendered in investment treaty arbitrations, recent developments in international commercial arbitration, the practice of significant international courts and tribunals and relevant provisions of national and international law. The costs award is broadly consistent with similar determinations but the outcome, like other cases, is very particular to its circumstances.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 The paradox of peacetime espionage in international law: From
state practice to first principles
- Abstract: Browne, Kathryn Jane
  While the customary law of espionage is codified under the law of armed conflict, international law is silent on the status of peacetime espionage. An abundance of state practice runs at odds with a paucity of opinio juris, and the most highly qualified publicists are divided over the question of peacetime espionage's legality. This paper will draw on the most learned teachings and address their concerns. Starting from the proposition that international law is a complete system, capable of answering the question peacetime espionage, the paper will apply the principles of sovereignty, equality, and non-intervention to an example of peacetime espionage. The application of first principles does not provide an answer regarding peacetime espionage's legality per se. But this paper will prove that state practice is amenable to legal analysis. States and their lawyers need not fear that the practice necessarily incurs state responsibility.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 The judgments project: A review of the Hague conference on
private international law's work in progress
- Abstract: Kelleher, Guy
  The 'Judgments Project' is an ambitious enterprise undertaken by The Hague Conference on Private International Law over the past two decades. It involves the strengthening of two key aspects of cross-border litigation in civil and commercial matters: the international jurisdiction of courts, and the recognition and enforcement of their judgments abroad. This article reviews the project's trajectory to date, arguing that it remains a 'work in progress.' In suggesting this, it discusses some of the challenges that continue to hinder the project's progress: the dominance of arbitration in cross border disputes, and the difficulty of reconciling the divergent approaches to jurisdiction adopted by the world's major legal systems. The article concludes by surveying some of the inroads made in the field in recent years at the local level - in particular the Trans - Tasman Regime implemented between Australia and New Zealand.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 Mind the gap: Child soldiers and the law of targeting
- Abstract: Roughley, Charmaine
  Despite international law's recognition of the need to afford special protection to children, a distinct gap in this protection, and in the law, exists. International Humanitarian Law (IHL) expressly protects children from their recruitment into armed forces and provides special protections once they cease to participate in hostilities, however, between these phases children are treated identically to adults in the law of targeting. Despite human rights law moving to provide additional protection to children in the last five decades, IHL has stagnated. This article addresses this gap, proposing two additions to the law of targeting that work to achieve a more appropriate balance between military necessity and principles of humanity.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 The immunities of state officials in civil proceedings involving
allegations of torture
- Abstract: Mora, Paul David
  Whether a State may plead immunity on behalf of its public officials in civil actions pursuing damages for torture has recently been explored by a number of judicial decisions. This article evaluates the findings made towards this question in the cases of 'Samantar v Yousuf, Kazemi Estate v Islamic Republic of Iran, Li v Zhou, and Jones v The United Kingdom'. These decisions make an important contribution to the international rules governing the immunities of State officials. Not only do they bring clarity to the scope of the existing law, those judgments decided by national courts also constitutes State practice and thereby play a role in forming the rules under customary international law.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 The ICC regime of victims' reparations: More uncertainties and
inconsistencies brought to light by recent cases
- Abstract: Lambert, Elisabeth
  This article discusses the system of victims' reparations established by the Rome Statute. It offers a critical analysis of recent Reparations Orders delivered by the ICC and shows how these latter have revealed more inconsistencies and uncertainties. Three themes have emerged: eligible victims, individual vs collective reparations and the implementation issue. This article recommends that the ICC would benefit from setting up a specialised body to address these complex issues. Moreover the ICC should keep a lower profile by focusing on individual reparations aimed at compensating and restoring the victims. Thus reparative measures should focus on monetary and economic measures. Consequently the role played by the ICC and the TFV would be more clearly distinguished and complementary, the TFV addressing medium-term and long-term reconciliation and collective development measures.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 Preface
- Abstract: Ward, Christopher
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 Due process of law beyond the state [Book Review]
- Abstract: Tully, Stephen
  Review(s) of: Due process of law beyond the state, by Giacinto della Cananea, (Oxford University Press, 2016), ISBN 978-0-19-878838-6, 206 pages.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 High court of Australia: SZTAL v Minister for Immigration and
Border Protection; SZTGM v Minister for Immigration and Border Protection
[2017] HCA 34 (6 September 2017)
- Abstract: Tully, Stephen
  Contemporary international law, including decisions from the International Criminal Tribunal for the former Yugoslavia and the European Court of Human Rights,1 does not offer a settled meaning of "intention" in relation to torture and cognate concepts. That rather surprising conclusion was made by the High Court of Australia in the recent decision of 'SZTAL; SZTGM'. This casenote first describes the legislative framework under consideration before analysing the judgment and exploring some of its implications.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT
Volume 23 Prosecutor v Ntaganda: The end of impunity for sexual violence
against child soldiers'
- Abstract: Tridgell, Jennifer
  On 14 June 2017, the Appeals Chamber of the International Criminal Court (ICC) ruled that rape and sexual slavery of child soldiers were war crimes under the Rome Statute, even when the perpetrators and victims belonged to the same armed group. This unanimous decision, which the Court described as 'unprecedented', came in the case of Bosco Ntaganda. He has been called 'The Terminator' for his role as Deputy Chief of Staff in the armed group 'Union des Patriotes Congolais (UPC), which reaped death and destruction across the Ituri region of Democratic Republic of the Congo (DRC). The Appeals Chamber ruling was especially poignant, given the region's notoriety as the 'rape capital of the world'. For the first time in history', the ICC had jurisdiction to prosecute sexual violence in conflict, regardless of whether victims were civilians or combatants.
  
  PubDate: Mon, 30 Sep 2019 15:57:20 GMT