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Melbourne Journal of International Law
Number of Followers: 18

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ISSN (Print) 1444-8602
Published by RMIT Publishing

[387 journals]

Volume 20 Issue 2 - Territorial sovereignty in cyberspace after 'Tallinn
manual 2.0'
- Abstract: Chircop, Luke
  Despite its status as a foundational principle of international law, territorial sovereignty has become contested and controversial in its application to cyberspace. Opportunistic states have exploited this circumstance by carrying out harmful cyber operations on the legal margins, with relative impunity, at the expense of peace and stability in the international system. The Tallinn Manual 2.0 sought to provide some needed clarity to this important legal doctrine. The manual's International Group of Experts unanimously agreed that territorial sovereignty could be violated by cyber operations that caused the permanent loss of functionality to cyber infrastructure or that resulted in physical damage or injury. However, no agreement was reached as to when, if ever, cyber operations below this gravity threshold violated international law. In this context, this article provides a detailed account of when low-intensity or 'below the threshold' cyber operations violate territorial sovereignty. Specifically, it argues that state-sponsored cyber operations that interfere with a target state's data, cyber systems or cyber infrastructure should be viewed as a violation of territorial sovereignty provided that more than de minimis effects are caused.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - Reaping the whirlwind: The norm of reciprocity and the
law of aerial bombardment during World War II
- Abstract: Bennett, John
  Despite the intense controversy surrounding the Allied bombing campaign during World War II, the extant scholarship lacks a detailed description of the law of war concerning aerial bombing as that law existed during the conflict - a remarkable gap in the research, considering the attention that has been devoted to this topic. This paper presents a brief history of the evolution of the law of war concerning aerial bombardment prior to and during World War II. The law of war in this period was shaped primarily by the norm of reciprocity, and this norm is critical to understanding how the Allies conceived of the bombing campaign. The norm of reciprocity had several functions deserving of examination: the norm, as a moral intuition, instilled a psychological motive for the Allied peoples to support the bombing, provided a framework of values to legitimate that support and then channelled that support into a policy perceived as legally just. The norm of reciprocity was central to legal justifications for the bombing campaign.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - The use of force and international law [Book Review]
- Abstract: Garwood-Gowers, Andrew
  Review(s) of: The use of force and international law, by Christian Henderson (Cambridge University Press, 2018) 440 Pages. Price AUD127.95 (Hardback) ISBN 9781107036345.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - New Publications in International Law
- PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - MJIL Prize for Outstanding Scholarship in
International Law
- PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - Law of the sea and investment protection in deep
seabed mining
- Abstract: Pecoraro, Alberto
  An essential feature of the United Nations Convention on the Law of the Sea ('UNCLOS') is the designation of the seabed beyond national jurisdiction ('the Area') as the 'common heritage of mankind', with the creation of the International Seabed Authority ('ISA') to allocate mining rights therein. The only private persons that may conclude a contract with the ISA and conduct extractive activities in the Area are those which are sponsored by their state of nationality or control. Currently, among those contractors, there are various corporations owned by nationals from states other than their sponsor. UNCLOS and its related instruments impose certain direct obligations on sponsoring states, including a duty of due diligence to ensure that deep-sea miners respect their own obligations owed to the ISA. This may require the frequent adaptation of national legislation to attain, for example, higher levels of environmental protection. This article suggests that international investment law is relevant to the relation between the contractor and its sponsoring state. Arguably the contractors' foreign shareholders are investors protected by international investment law, and deep-sea mining activities may constitute, in certain circumstances, an investment in the territory of the sponsoring state. In fact, investment tribunals have flexibly interpreted the investment treaty requirement of territoriality, upholding their jurisdiction over investments that are inclusive of transactions located beyond host state borders. However, it is unclear how international norms protecting investments might be interpreted and applied in the peculiar context provided by the common heritage of mankind.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - Was the colonisation of Australia an invasion of
sovereign territory'
- Abstract: Nicholson, Rowan
  This article presents a reassessment of the British colonisation of Australia from the internal perspective of the international law of the period. After a discussion of the value of using historical doctrine in this way, the article introduces three positions that might be taken on the peoples who were perceived as the least 'civilised' by Western international lawyers. These have not always been distinguished in the literature. The 'preclusive' position, according to which these peoples were incapable of sovereignty, is rejected as inconsistent with state practice. Although it does not prove feasible to eliminate either of the other two possibilities, the 'naturalist-legislative' and 'contractual' positions, they lead to similar results. On this basis it is concluded, not with complete certainty but with a high degree of confidence, that before colonisation the Aboriginal and Torres Strait Islander peoples of Australia were sovereign within their territories in the strict sense of international law. It is also concluded that describing colonisation as an 'invasion' of sovereign territory accords with the doctrinal language of the period. In these respects, historical international law, despite being shaped by and in the interests of Western colonisers, agrees with language used today by Aboriginal and Torres Strait Islander peoples. In the course of this reassessment, the article offers insights of broader application into the role of customary norms and the legal status of pre-colonial non-Western entities.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - A review of the international law commission's
guidelines on the protection of the atmosphere
- Abstract: Mayer, Benoit
  The International Law Commission ('ILC') adopted a set of 12 Draft Guidelines on the protection of the atmosphere on first reading in 2018. This project, led by Special Rapporteur Shinya Murase, could have provided the first authoritative interpretation of the general international law applicable, in particular, to climate change. Yet, the work of the ILC on the topic largely failed to comprehend the relevant rules. This review reveals numerous shortcomings of the Draft Guidelines and makes suggestions for the second reading.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - Lacking conviction: Is the international criminal
court broken': An organisational failure analysis
- Abstract: Guilfoyle, Douglas
  There is a widespread sense that something in the International Criminal Court ('ICC') needs fixing. This prompts questions including: is it broken, who is responsible, and how is it to be fixed' This article avoids the discourse of a 'crisis in international criminal law' in favour of the literature on organisational failure. This literature focuses on the role of environment, structure and leadership in organisational performance. In particular, this paper posits that the ICC is embroiled in a fiasco, defined as a situation in which a public organisation's policy choices result in unintended political consequences. As a fiasco unfolds, the organisation at its centre, and its defenders, may seek to ascribe responsibility or displace blame. This article thus: examines the case that the ICC is failing in its core mission and assesses whether common defences of the Court fairly ascribe responsibility or constitute blame-displacement; and examines the extent to which the ICC's leadership is responsible for the present fiasco. It then considers whether the ICC Assembly of States Parties can rehabilitate its supervisory function to assist in fixing the Court. Finally, it cautions against the use of managerialist techniques in fixing the Court and proposes instead the cultivation of an ethic of modesty.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - Shell companies and exposing beneficial ownership:
Testing the boundaries of the international commitment to fight corruption
- Abstract: Gillis, Matilda
  Corporate vehicles are used by corrupt actors because they obscure the real person, the 'beneficial owner', behind transactions, thereby enabling the evasion of anti-corruption laws and regulations. This paper argues that while the Australian and international communities have addressed the misuse of corporate vehicles and their role in facilitating transnational corrupt activity, they have not done so in a meaningful way. Shell companies, in particular, continue to function as an 'iron curtain', behind which corrupt activity is hidden. This paper nevertheless proposes that this deficiency can be rectified and a culture of compliance at the international level built.
  
  This paper first explores the current international legal response to this particular issue in the transnational corruption space and demonstrates that there is a significant disconnect between states' rhetorical commitment to fight the use of corporate vehicles in corrupt transactions and their practical implementation of anti-corruption measures. This paper uses Australia as a case study to illustrate this argument. It then engages with the possible reasons for the disconnect between rhetoric and practice, proposing that the disconnect largely flows from flaws in the international legal obligations themselves rather than from the actions of states. This paper suggests a way to meaningfully engage with the issue. It advocates for the adoption of a strategy of 'strategic privatisation', a development within the law in the broad area of transnational anti-corruption regulation, and for the application of that strategy to the narrower issue of the exploitation of corporate vehicles.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - The material costs of claiming international human
rights: Australia, Adani and the Wangan and Jagalingou
- Abstract: Young, Stephen M
  This article presents a materialist account of Indigenous peoples' international legal human rights claims. It argues that appeals to the global legal system as well as pluralistic approaches to Indigenous peoples' rights depend on international law to make a convincing case and yet fail to account for the material construction of human rights claimants as subjects of international law. To explain this intervention, this article theorises that when international human rights law and national laws clash, human rights claimants constitute and transform themselves into international legal subjects and become identifiable Indigenous peoples. In support of this international legal constructivist approach to Indigenous peoples' human rights claims, this article re-articulates the development of Indigenous peoples as subjects that emerged from international law and then examines the development of Australia's native title regime. An exposition of international and then state laws reveals that the codification of different standards for participation enables those who subject themselves to international law as Indigenous peoples to claim human rights. It then provides a case study on the Wangan and Jagalingou Family Council, which constructed itself as Indigenous peoples to assert human rights, as they engage with Australia's native title regime in the case against Adani Mining Pty Ltd's Carmichael Coal Mine and Rail Project. A central aspect of this argument is that becoming identifiable Indigenous peoples through claiming human rights provides benefits as well as potentially deleterious political, economic and legal costs.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT
Volume 20 Issue 2 - Regulating collective resources under multilateral
treaties: The decision in whaling in the antarctic ('Australia v Japan')
- Abstract: Strain, Nicola
  With Japan's recent announcement of its withdrawal from the International Whaling Commission, it is timely to reconsider what can be learned from the International Court of Justice's decision in Whaling in the Antarctic (Australia v Japan) ('Whaling') on the regulation of collective resources. The Court's approach to the collective resources issue in Whaling may indicate a more activist role for the Court, beyond the traditional sphere of bilateral dispute resolution. This article considers whether Whaling demonstrates a move towards providing a mechanism for regulation of state conduct under multilateral treaties, moving towards a more domestic style of administrative review, by analysing certain aspects of the Court's procedural and evidential approach. In light of the parties' submissions, previous jurisprudence of the Court as well as other international tribunals' jurisprudence, the analysis of this dispute suggests that the Court may be willing to move to a more 'regulatory' role in reviewing state decision-making. However, the Court missed an opportunity to clearly define its role in reviewing state decisions that affect collective resources. The Court failed to provide clear reasoning for its developing a 'review' role, likely as a result of its reliance on the parties' agreement on the approach. As such, Whaling provides only limited guidance on whether the Court will continue to provide such a role in the regulation of collective resources.
  
  PubDate: Sun, 3 Jan 2021 20:38:12 GMT