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Melbourne Journal of International Law
Number of Followers: 18

Full-text available via subscription

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ISSN (Print) 1444-8602
Published by RMIT Publishing

[387 journals]

Volume 19 Issue 1 - The impact of the 'Hague principles on choice of law
in international commercial' contracts
- Abstract: Douglas, Michael; Loadsman, Nicholas
  In 2018, Australia should enact an 'International Civil Law Act' which would give effect to the 'Convention on Choice of Court Agreements ('Hague Convention') and the Principles on Choice of Law in International Commercial Contracts' ('Hague Principles'). This article explains how the enactment of the 'Hague Principles' would impact Australian private international law in respect of choice of law for contracts. It is argued that, for the most part, this legislation would be consistent with existing law - although there are a few issues that would be determined differently under the legislation, and in those respects, the legislation would be welcomed. The 'Hague Principles' provide limited exceptions to the principle of party autonomy, which allow courts to apply forum law for certain public policy reasons. It is argued that the scope of those public policy exceptions will be a focal point for choice of law disputes under an International 'Civil Law Act'.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - Investigation as legitimisation: The development,
useand misuse of informal complementarity
- Abstract: Hughes, David
  This article introduces the idea of informal complementarity. Where the principle of complementarity allows the International Criminal Court ('ICC') to assess the admissibility of a particular case, informal complementarity is employed by states. It exists independently (or pre-emptively) of an International Criminal Court investigation. Appeals to informal complementarity speak fluidly of individual criminal proceedings and state-level investigations or inquiries. When a state appeals to informal complementarity, it is not immediately concerned with individual criminal liability or the admissibility of a particular case. Instead, informal complementarity serves to deny the state's non-criminal responsibility. Appeals to informal complementarity constitute an emergent vocabulary. It increasingly features within the lexicon of states that engage in the use of force. It provides a novel means of asserting legitimacy. Within armed conflict, states are supplementing traditional appeals to international law and assertions of legal fidelity with claims of post-hoc legal accountability. Grounded within a study of Israel's engagements with international law during and after the 2008-09 and 2014 Gaza wars, this article demonstrates that the post-war discourse has moved from exclusive assertions of legal compliance to include pronouncements of investigative willingness. Framed around the metaphor of the proleptic show trial, four phases of legal engagement are introduced that collectively constitute both an appeal to informal complementarity and an emergent means of asserting legitimacy.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - Transnational tort and access to remedy under the
'Unguiding principles on business and human rights: Kamasaee v
Commonwealth'
- Abstract: Holly, Gabrielle
  The 'Guiding Principles on Business and Human Rights' ('UNGPs') set out a tripartite framework outlining the human rights obligations of states and responsibilities of business. However, until recently, little attention has been paid to the aspect of the framework that deals with access to remedy for victims of business-related human rights abuse. Renewed focus on access to remedy has drawn attention back to jurisdictions that have developed a body of jurisprudence, which, to varying degrees, will allow domestic courts to accept jurisdiction over claims where extraterritorial human rights violations are framed as civil suits and brought against a corporate actor in its home jurisdiction. 'Kamasaee v Commonwealth' ('Kamasaee') is the first claim to test the Australian jurisdiction as a forum for transnational human rights litigation against a corporate defendant in 17 years, and the only claim of its nature to be brought in the era of the 'UNGPs'. What 'Kamasaee' makes clear is that although transnational human rights litigation remains a critical avenue for obtaining remedy for breaches of human rights standards engaged in by corporate actors, without the fulfilment of the state duty to protect human right enshrined in the 'UNGPs', such claims are not capable of providing effective remedy.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - Ensuring equality for persons with cognitive
disabilities in consumer contracting: An international human rights law
perspective
- Abstract: Maker, Yvette; Arstein-Kerslake, Anna; McSherry, Bernadette; Paterson, Jeannie Marie; Brophy, Lisa
  This article explores the implications of the 'United Nations Convention on the Rights of Persons with Disabilities' ('CRPD') for the exercise of consumer rights and consumer protection of persons with cognitive disabilities in Australia. It identifies several limitations of existing consumer protection laws and principles in realising the rights of persons with disabilities to equality and non-discrimination, to live independently and be included in the community, to accessibility of services and information and to equal recognition before the law. Most centrally, the emphasis in Australian consumer protection law on setting aside contracts where consent is invalid or vitiated has potentially discriminatory consequences and does not offer the means for contracting parties to exercise their legal capacity and enter contracts for goods and services on an equal basis with others. Models of 'supported decision-making' - which respect the legal capacity of the individual while providing support to exercise that capacity - are proposed as a necessary complement to the existing consumer protection regime. Drawing on the findings of a qualitative study, the article identifies existing barriers to consumer transactions for persons with cognitive disabilities and explores the role of supported decision-making in removing those barriers. The article concludes by proposing an approach to supporting persons with cognitive disabilities in the conduct of consumer transactions by prioritising accessibility of information, privacy and non-discrimination and supported decision-making.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - Regulatory rationalisation clauses in FTAS: A complete
survey of the US, EU and China
- Abstract: Lin, Ching-Fu; Liu, Han-Wei
  Mechanisms on regulatory coherence or good regulatory practices have emerged as one of the unique features of preferential trade agreements (PTAs) in the age of mega-regionalism. Led by the United States, for instance, the Trans-Pacific Partnership ('TPP'), now known as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership ('CPTPP') introduces a standalone chapter that focuses on the domestic rule-making process. Such design is unique for it goes beyond traditional output-oriented proxies by including a set of input-oriented elements that apply to the rulemaking process of each party, before a regulatory action is taken. These elements, like transparency, public consultation, regulatory impact assessment, inter-agency coordination and review, are in large part modelled on the American Administrative Procedure Act ('APA') and several executive orders with a view to 'rationalising' the administrative lawmaking process and to responding to the concerns about a regulatory state. For years, the US has been exporting this APA-style regulatory philosophy elsewhere: from the Organisation of Economic Co-operation and Development ('OECD') and the Asia-Pacific Economic Cooperation ('APEC') to trade negotiations to which it is a party, including the above-mentioned TPP and the Transatlantic Trade and Investment Partnership ('TTIP'). Notwithstanding these efforts, however, there are hurdles for regulatory coherence to be further diffused as a new global norm since it goes beyond trade to involve complicated economic, social and political endowments of different trading partners. The role of another two major players, namely China and the European Union, is hence of particular significance in this context. This article seeks to sketch out the contour of the emerging regulatory coherence by mapping the trajectory of its historical development and offering a comprehensive survey of how China, European Union, and the United States have managed it across different contexts.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - 'The admixture of feminine weakness and
susceptibility': Gendered personifications of the state in international
law
- Abstract: O'donoghue, Aoife
  19th century international law textbooks were infused with the gendered personification of states. Legal academics, such as Johann Casper Bluntschli, John Westlake, Robert Phillimore and James Lorimer, relied on gendered personification to ascribe attributes to states. Masculine states, reasonable, bounded and strong, were the backbone of Western civilisation, while feminine states were irrational, permeable and lacking in the reasonability necessary for full statehood. Britannia may have represented the British Empire at its zenith but the allegory was not intended as a rallying call for women's political participation. John Bull represented the actuality of citizenship. Recent scholarship recognises the import of 19th century international legal academia to contemporary law. This article argues that the personifications, which suffused the writings of these authors, set the terms in which contemporary international law understands statehood. Explicitly gendered language may no longer be invoked but the terms of statehood remain sexed. When scholars return to the writings of 19th century international legal academia, attention to the negative gendered bequests of the era is required.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - The laws of war and the structure of masculine power
- Abstract: Megret, Frederic
  The laws of war may well restrain what can be done in war, but in the process they also enable certain forms of power. This article seeks, drawing on the feminist critique of the laws of war and the study of men and masculinities, to analyse the project of humanising war as specifically a form of masculine domination. It argues that, despite the fact that men suffer in war and that the laws of war seek to protect non-men, the laws of war fundamentally articulate a form of hegemonic masculine power. This is primarily because restraint has always been woven into concepts of manliness as a precarious compromise between ruthless hyper-masculinity and femininity. As a result, the laws of war merely embody a longstanding masculine ideal; what is legal is what is virile and vice versa. In internationalising and legalising that ideal, they then seek to rescue masculinity from its never-ending crisis and, in the process, decide who can partake in the power of dominant masculinity. 'Savages' are typically excluded as both too masculine and too feminine. At a deeper level, the power of restraint is that it creates a debt of gratitude in its 'feminine' beneficiaries, imposes upon them a sort of 'protection racket' and coopts them into its enterprise of reifying masculine domination. This, then, raises complex questions for feminist engagements with the laws of war in a context where demands for reform can quickly lapse into a quiescent toleration of war.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - 'Imperium in imperio': Sub-imperialism and the
formation of Australia as a subject of international law
- Abstract: Storr, Cait
  This article retraces the role of sub-imperialism in the formation of the Australian state as a subject of international law. The discourse of sub-imperialism developed in the late nineteenth and early twentieth centuries as a means of characterising the British self-governing Dominions' uncertain status in the international order, and drew explicitly on the United States Monroe Doctrine. The article revisits the significance of sub-imperialist posturing at two critical junctures in the historical formation of the Commonwealth of Australia. The first is the formalisation in the early 1880s of the movement toward federation of the Australasian colonies as a response to perceived British acquiescence to German imperialism in the Western Pacific. The second is the Commonwealth government's attempt during the Versailles negotiations of 1919 to annex to its territory the occupied German Pacific territories of New Guinea and Nauru. The principal argument made in this article is that attempts to establish an Australian subempire in the Western Pacific were fundamental both to the federation movement and the recognition of Australian sovereignty in international law. The article concludes that Australian sub-imperialism warrants greater attention both in accounts of the history of Australia's transition from self-governing Dominion to sovereign status in international law, and in accounts of contemporary Australian foreign policy in the Pacific region.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - The method is the message: Law, narrative authority
and historical contestation in international criminal courts
- Abstract: Sander, Barrie
  International criminal courts produce extensive historical records concerning the mass atrocity situations that fall within their purview. To date, existing scholarship has tended to examine the historical function of these courts based on two key assumptions: first, that the centre of narrative authority within international criminal courts resides in their judgments; and secondly, that the historical narratives constructed within international criminal judgments are inevitably restricted by the legal categories that shape their form and substance. Taking these twin assumptions as its point of departure, this article seeks to develop a more nuanced understanding of the historical function of international criminal courts, first by revealing how international criminal courts are contested terrains in which narrative authority is dispersed, and secondly by illuminating how the adaptability of legal categories can generate narrative dissensus between international criminal judges both within and across particular cases. In this way, rather than constructing universal historical narratives about mass atrocity situations, this article reveals international criminal courts to be narrative battlegrounds characterised by competing claims of authority and contested understandings of history.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - Diversity in the investor-state arbitration:
Intersectionality must be a part of the conversation
- Abstract: Polonskaya, Ksenia
  This article examines the contemporary discourse on diversity in the field of investment arbitration, and finds that conceptually the aspect of 'intersectionality' is overlooked. The parties, arbitration institutions, law firms and arbitrators themselves pledge to increase diversity in the field by appointing more female arbitrators without asking which women to appoint. Female lawyers come from various backgrounds, for example, there are female lawyers from developing countries, black female lawyers, indigenous female lawyers, Asian female lawyers, etc. Their backgrounds do not constitute a single dimensional characteristic, instead, they can overlap, creating unique obstacles for 'entry' into the field as an arbitrator, a position of legal authority and prestige. The article seeks to contribute to the discourse on diversity by examining the concept of intersectionality, and its relevance to the ongoing attempts of the participants of the investment regime to diversify the pool of candidates for the arbitral bench. The article examines the list of ICSID cases, and the list of the investment cases in which Canada was a respondent to conclude that the vast majority of female candidates that are appointed to the investment panels continue to be Caucasian women from developed states. The article provides an overview of options for diversifying the pool of arbitrators, and points the direction forward for the diversity discourse.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - Re-examining corporate liability at the international
criminal court through thelens of the article15 communication against
Chiquita brands international
- Abstract: Wheeler, Caleb H
  To date, the International Criminal Court ('ICC') has focused its attention on prosecuting governmental and military leaders. This article uses the recent communication submitted to the ICC seeking the extension of the Office of the Prosecutor's ongoing preliminary investigation in Colombia as a framework to explore whether the ICC should expand its focus to include atrocity crimes committed by corporations and their employees. The article specifically addresses the questions raised in the communication regarding the financial involvement of Chiquita Brands International Inc ('Chiquita') with paramilitary forces in Colombia between 2002 and 2004. The article also examines the current arguments in favour of extending the ICC's criminal liability to include corporations and highlights the shortcomings of those sentiments above and beyond the fact that the Rome Statute of the International Criminal Court explicitly excludes such liability. It also discusses the modes of individual liability contained in arts 25(3)(c) and (d), and analyses whether employees of Chiquita could be exposed to prosecution under either provision. The article concludes that the ICC should make greater efforts to investigate and prosecute corporate actors for their involvement in human rights abuses. However, it cautions that the facts as they relate to Chiquita suggest that such efforts should not be concentrated on this case as it is unlikely that an investigation into this case will result in a successful prosecution.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - ADRIFT: The high court of Australia decides 'SZTAL v
Minister for Immigration and Border Protection'
- Abstract: McIntyre, Juliette
  The High Court of Australia's decision in the joined cases of 'SZTAL v Minister for Immigration and Border Protection and SZTGM v Minister for Immigration and Border Protection' ('SZTAL') marks the first substantive engagement of the newly constituted bench with issues of international law, and reveals a certain judicial readiness to engage with the interpretation and application of international law. The cases arose in the context of a claim for complementary protection under the 'Migration Act 1958' (Cth) ('Migration Act'). Introduced by way of the 'Migration Amendment (Complementary Protection) Act 2011' (Cth), the complementary protection regime made a number of changes to the Migration Act to provide for protection against refoulement additional - complementary - to that provided by the 'Convention relating to the Status of Refugees' ('Refugees Convention'). The legislation aligns closely with Australia's international human rights obligation not to return people to a place where they will face torture and other serious forms of harm pursuant to a range of international instruments, but most relevantly in this case the 'Convention against Torture ('CAT') and the International Covenant on Civil and Political Rights' ('ICCPR').
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - Is international law international' [Book Review]
- Abstract: Leiter, Andrea
  Review(s) of: Is international law international' by Anthea Roberts (Oxford University Press, 2017) 420 Pages, Price 25.99 pounds, (Hardcover), ISBN 9780190696412.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 19 Issue 1 - Implementing treaties in domestic law: Translation,
enforcement and administrative law
- Abstract: Edgar, Andrew; Thwaites, Rayner
  In this paper, we analyse the ability of private individuals and organisations to enforce Australia's treaty commitments, as referenced in domestic statutes. More particularly, we analyse the contribution of administrative law to the enforcement of international law within the domestic legal system. We study the complexity of such enforcement through two case studies centred on High Court decisions from the 1990s, 'Minister for Immigration and Ethnic Affairs v Teoh and Project Blue Sky Inc v Australian Broadcasting Authority'. Through the case studies we analyse how and why international law commitments are altered when they are 'drawn down' into domestic law and litigants seek to enforce them there. We focus on a common implementation technique in Australian law, whereby treaty obligations constitute qualified limitations on executive discretion under statute. Through our case studies we illustrate how statutory reference to a treaty needs to be analysed as an intermediate step in implementation, with much of the work to make the treaty obligation enforceable in domestic law being undertaken by the administrative decision-makers charged with applying the statute, potentially supervised by the courts. Our themes are the role of domestic courts in enforcing treaty obligations and the inter-institutional dynamics generated by statutory implementation. We show how the legislative incorporation of international law may only constitute the starting point of a complex series of institutional interactions, often refracted through administrative law doctrine.
  
  PubDate: Tue, 22 Oct 2019 15:32:33 GMT
Volume 20 Issue 1 - Foundational myths in the laws of war: The 1863 lieber
code, and the 1864 'Geneva convention'
- Abstract: Roberts, Adam
  Limiting some of the terrible human consequences of war is an age-old aspiration. In 1863-64 it found concrete expression in two innovative and important documents on the laws of war
  
  PubDate: Fri, 30 Aug 2019 19:55:33 GMT
Volume 20 Issue 1 - Suzan Shabnam Davies: 13 August 1975 - 23 April 2019
- Abstract: Barnett, Katy
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - The space (innovation) race: The inevitable
relationship between military technology and innovation
- Abstract: de Zwart, Melissa; Stephens, Dale
  Access to outer space is becoming more achievable by a wider array of state and non-state actors. This access is partly fuelled by the constant development of technology that brings down the cost of such access and makes actual space activities more varied and widespread. Associated with these developments is the correlative use of space by military forces, thus manifesting an enduring competition for strategic ascendancy. The combination of multiple actors, advancing technology and the ever-present reality of geopolitical contention in space has put pressure on the existing outer space treaty regime. This treaty regime was primarily drafted in a different era where the realities of contemporary civil - military space activity could only be imagined. This article surveys the development of technology and the nature of civil - military activity in space. It argues that while the outer space treaty regime provides a sound starting point for addressing technological development and military activity in space, there is a strong case for invoking other principles and rules of international law to tackle emerging issues. Presciently, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies ('Outer Space Treaty') actually envisages this application of general international law, but there has been a tendency to marginalise this invocation and assimilation. This article argues that the time has come to reconcile differing legal regimes to craft solutions for the current space realities. Moreover, creative thinking in merging 'soft' international law with 'hard' domestic law, reaching past the inertia that current international decision-making bodies seem to exhibit, and rethinking interpretations of some Outer Space Treaty provisions by having regard to actual state practice, are areas which need to be fully explored. More strategically, creating a new appreciation and legal mindset for tackling the exponential growth of technology and civil-military space activity is required if space exploration and use is to be sustainably undertaken.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - Fearless speech: Seeking freedom beyond the (liberal)
fishbowl [Book Review]
- Abstract: Alaattinoglu, Daniela; Mazel, Odette; O'Hara, Claerwen; Otto, Dianne
  Review(s) of: Gender, alterity and human rights: Freedom in a fishbowl, by Ratna Kapur, (Edward Elgar, 2018), 328 pages, Price 90.00 (Hardcover), ISBN 978178811 2529.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - Autonomous weapon systems and accountability: Putting
the cart before the horse
- Abstract: McDougall, Carrie
  Arguments that in many scenarios there will exist an 'accountability gap' where civilians are unlawfully killed through the use of an autonomous weapon system ('AWS') have been advanced to justify either the prohibition or restriction of AWS. This article examines the accountability problem through a critical review of the literature on accountability and AWS in order to identify why some experts say there will be no accountability gap while others argue there will, why some do not see this as a problem and others do, and why some consider this is a problem that has a solution while others see it as irresolvable. It is demonstrated that in large part these differing conclusions are the result of varying assumptions and preconditions. Without questioning the inherent value of accountability in the broad, it is argued that solutions to the debate over AWS will not be found in international criminal law, which should not be used as a backdoor to address perceived shortcomings in international humanitarian law. It is further argued that no analysis of the accountability problem will provide meaningful guidance as to whether the international community needs to prohibit or restrict AWS given that, one way or another, international criminal law can be amended to plug the accountability gap, if this is the desired policy outcome.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - International law does not compute: Artificial
intelligence and the development, displacement or destruction of the
global legal order
- Abstract: Maas, Matthijs M
  Within the coming decade, the deployment of artificial intelligence ('AI') appears likely to have a disruptive impact on global affairs. What will such 'globally disruptive' AI imply for the form, function and viability of international law' I briefly sketch the long history of technological innovation driving, shaping and destroying international law. Drawing on scholarship on the relation between new technologies and international law, I argue that new technology changes legal situations both directly, by creating new entities or enabling new behaviour, and indirectly, by shifting incentives or values. I argue that development of increasingly more disruptive AI may produce three types of global legal impacts. The first is 'legal development' (patching); the second is 'legal displacement' (substitution); the third is 'legal destruction' (erosion). I discuss the potential impact of AI in all three modalities, and the implications for international relations. I argue that many of the challenges raised by AI could in principle be accommodated in the international law system through legal development, and that while AI may aid in compliance enforcement, the prospects for legal displacement - a shift towards an 'automated international law' - look slim. However, I also conclude that technical and political features of the technology will in practice render AI destructive to key areas of international law: the legal gaps it creates will be hard to patch, and the strategic capabilities it offers chip away at the rationales for powerful states to engage fully in, or comply with, international law regimes. This suggests some risk of obsolescence of distinct international law regimes.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - Liberalising blockchain: An application of the 'GATS'
digital trade framework
- Abstract: Razon, Arvin Kristopher
  Blockchain technology and the World Trade Organization share the same principles of liberalisation and democratisation of trade. Relying on cross-border data flows and an open environment, blockchain platforms, such as Bitcoin and smart contracts, dispense with a central intermediary and distribute the function of validating transactions to a peer-to-peer network of participants, who maintain and update a record of all transactions in a transparent and immutable distributed ledger. The General Agreement on Trade in Services ('GATS') - as the only multilateral treaty that creates binding international obligations on the treatment to be accorded to service suppliers, including online services - provides a solid foundational framework for services supplied by participants on blockchain, even if, unsurprisingly, several grey areas exist. Applying GATS to blockchain means that many prohibitive regulations imposed by countries - from banning mining to criminalising the possession of cryptocurrencies - may be considered barriers to trade.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - Taxing tech: Risks of an Australian digital services
tax under international economic law
- Abstract: Mitchell, Andrew D; Voon, Tania; Hepburn, Jarrod
  Along with many other countries, Australia is considering implementing a tax on digital services to try to capture more of the revenues of digital businesses, which may operate without a substantial physical presence in the country. Although traditional approaches to tax may need wholesale revision to adjust to the digitalisation of the global economy, these changes are best pursued through a multilateral process, which is already ongoing through the Organisation for Economic Co-operation and Development and the G20, and in which Australia is participating. An interim Australian digital services tax risks breaching Australia's obligations under international economic law: namely international trade law and international investment law. The relevant trade and investment rules contain certain flexibilities, including some specific references to taxation, that might assist in justifying such a tax. However, the overarching problem that may lead to a breach of at least some of the relevant treaties is that an Australian digital services tax is likely to burden United States businesses disproportionately, particularly if smaller businesses are exempt as is envisaged. In the current global economic and political climate, provoking retaliation of the US or further closure of national economies through the imposition of an Australian digital services tax is undesirable.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - Dubai: Creating a global legal platform'
- Abstract: Kingsley, Jeremy J; Heap, Melinda
  Globalisation is a complex economic and ideological notion that has revolutionised commercial realities in recent decades. This transforming mode of commercial arrangement requires a legal ecosystem that weaves its way across and between domestic, international and transnational legal systems and cultures. This article seeks to understand how Dubai has sought to create a global legal platform that is seeking, in essence, to create a de-territorialised legal fiction. In other words, they are seeking to develop a privatised dispute resolution system that operates within and without national borders and jurisdictions. It is arguably establishing a new legal platform to turn globalisation into a tangible legal idea.
  
  The Dubai International Financial Centre ('DIFC') is located in downtown Dubai yet aims to operate as if it were offshore. DIFC is composed of the DIFC Dispute Resolution Authority, the DIFC Authority (which functions as an executive body) and the Dubai Financial Services Authority (which regulates banking and finance). Despite being geographically located in downtown Dubai, they have their own rules and dispute resolution system separate from Emirati law and courts. DIFC is consciously a part of making Dubai into a global hub for legal services.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - Forced human displacement, the third world and
international law: Atwail perspective
- Abstract: Woldemariam, Samuel Berhanu; Maguire, Amy; von Meding, Jason
  Forced human displacement is a growing global concern. Its impacts are particularly felt in the Global South. The problem festers within an international legal environment that lacks both adequate and responsive rules, and strategies to address its root causes. International law, often looked upon to provide solutions to global challenges, has serious limitations when it comes to the issue of forced displacement. This article uses Third World Approaches to International Law ('TWAIL') to analyse the relationships between forced human displacement, international law and what TWAIL describes as 'the Third World'. This approach is relevant because much of Africa, Asia and the Middle East were under colonial rule when international responses and rules regulating forced displacement were developed in the early and mid-20th century. Following decolonisation, the newly independent states acceded to an international legal framework that had been shaped without their input. This 'non-inclusiveness' within international law of Third World voices and interests contributes to stark development inequalities. Accordingly, forced displacement remains the visible manifestation of the failure of the international community to address its root causes. The Syrian refugee crisis and the recent 'caravan' originating in Central America are powerful examples. The authors argue that a lasting solution should aim for a reformed international law that is comprehensive and preventive rather than narrowly tailored to advance politically expedient positions or to promote unilateral gatekeeping. A robust engagement with the progress of the Global Compacts on Refugees and Migration and the Sustainable Development Goals provides such opportunity to appropriately address forced displacement.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - Human rights due diligence and the risk of cosmetic
compliance
- Abstract: Landau, Ingrid
  The concept of human rights due diligence is now embedded in many transnational regulatory instruments and is finding its way into national regulatory frameworks. As a means of conceptualising and operationalising responsible business conduct in a global economy, human rights due diligence is new, shiny and compelling. This article argues, however, that institutionalisation, even legalisation, of the concept may not necessarily bring about widespread, significant improvements in corporate behaviour. This is because companies may adopt internal policies and compliance structures that have all the formal hallmarks of human rights due diligence, but that fail to lead to genuine and substantial improvements in practice.
  
  This article argues that, in light of this susceptibility to cosmetic compliance, it is important for international and national lawmakers to engage not only with the question of how to encourage or mandate human rights due diligence, but also with the question of how regulatory initiatives should be designed to minimise the risk of companies performing human rights due diligence cosmetically. Drawing on the normative concept of 'meta-regulation', the article identifies a number of principles that may help ensure due diligence regulation is crafted to enable businesses to implement respect for human rights in a way that is adapted to their unique circumstances, while ensuring the steps they take are meaningful and that they are held accountable for their self-regulatory systems.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 20 Issue 1 - Fluid personality: Indigenous rights and the 'Te Awa
Tupua (Whanganui River claims settlement) act 2017' in Aotearoa New
Zealand
- Abstract: Collins, Toni; Esterling, Shea
  In March 2017, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ) ('Te Awa Tupua Act') became the first piece of legislation in the world to declare a river a legal person. Through this grant of legal personality the Whanganui River acquires the rights, duties, powers and liabilities of an entity with legal standing including the ability to sue those who harm it. This legislation is aimed at reconciling the relationship between the government of Aotearoa New Zealand and its Indigenous peoples (Maori) in light of the principles of the Treaty of Waitangi, one of the founding documents of Aotearoa New Zealand. However, the Te Awa Tupua Act also offers a platform to explore the promotion and protection of Indigenous rights in international human rights law including the United Nations Declaration on the Rights of Indigenous peoples in relation to Maori in Aotearoa New Zealand. This inquiry demonstrates that despite the novelty of the legislation and the exciting progress towards re-establishing Maori governance and management over the River that they held for centuries before European colonisation, the innovative grant of legal personality to a river does not fully address past wrongs in that it continues to exclude Maori ownership of freshwater. Ultimately the Te Awa Tupua Act leaves Aotearoa New Zealand wanting in its commitments under international human rights law.
  
  PubDate: Fri, 30 Aug 2019 19:11:03 GMT
Volume 19 Issue 2 - Race, self-determination and Australian empire
- Abstract: Anghie, Antony
  This article focuses on Australia's complex relationship with colonialism and empire. This relationship is most often examined through the related frameworks of settler colonialism and Australia's place within the British Empire. This article sketches and explores a third framework based on what might be termed 'Australia's Empire': Australia's administration of Nauru and Papua New Guinea pursuant to a mandate of the League of Nations and subsequently, as trusteeship territories under the League of Nations. It seeks in this way to make an argument that these different forms and operations of colonialism must be studied simultaneously as they all influenced each other. Concepts of race and self-determination provide a means of linking together these different imperial experiences.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - Increasing co-operation between Australia and China in
the recognition and enforcement of judgments
- Abstract: Garnett, Richard
  As trade and interaction between Australia and China increases, attention is being drawn to methods of dispute resolution other than international commercial arbitration, such as litigation. For litigation to be a workable option, however, there must be an effective system for recognition and enforcement of foreign judgments under both countries' laws. This commentary examines the current regimes for recognition and enforcement in Australia and China and finds, in particular, that the status of Australian judgments in China is uncertain due to the Chinese requirement of 'reciprocity'. While the results from bilateral agreements on recognition and enforcement between China and other countries have been mixed, multilateral instruments developed by the Hague Conference on Private International Law may provide a better solution.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - The misery of international law: Confrontations with
injustice in the global economy [Book Review]
- Abstract: Dehm, Julia
  Review(s) of: The misery of international law: confrontations with injustice in the global economy, by John Linarelli, Margot Salomon and Muthucumaraswamy Sornarajah (Oxford University Press, 2018) 336 pages, Price GBP 70.00 (Hardcover) ISBN 9780198753957.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - Protective jurisdiction in the contiguous zone and the
right of hot pursuit: Rethinking coastal states' jurisdictional rights
- Abstract: Eschenhagen, Philipp; Jurgens, Max
  Considering the current influx of migration movements across international waters and cases of drug trafficking and offshore oil-bunkering, states require certainty about their powers in the protective belt contiguous to their territorial sea. While available literature is confined to the mere denial of full jurisdiction, this article explores under what circumstances states may exercise rights against incoming vessels in vertical passage. The article claims that states may exercise jurisdiction in their contiguous zone, but are limited to administrative measures of a protective nature referred to as 'protective jurisdiction'. When states act under protective jurisdiction, incoming vessels regularly escape a littoral state's authority by fleeing the contiguous zone to the high seas. A revised understanding of the rights in the contiguous zone also requires a fresh perspective on the right of hot pursuit - in particular: does protective jurisdiction in the contiguous zone entail the right of hot pursuit'
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - From ecocide to voluntary remediation projects: Legal
responses to 'environmental warfare' in Vietnam and the spectre of
colonialism
- Abstract: Cusato, Eliana
  This article examines legal responses to the pervasive legacy of 'environmental warfare' during the Vietnam War, most notably the use of Agent Orange and other chemical herbicides. It engages in a historical analysis of the different efforts to establish American accountability under international law, including within the United Nations General Assembly and before American courts, until the more recent United States-funded environmental remediation projects in dioxin contaminated areas and assistance to persons with disabilities. In doing so, the article draws attention to the unaccomplished quest for justice of the Vietnamese people and to some problematic dimensions of legal debates surrounding the environmental and human consequences of the Vietnam conflict. Borrowing insights from the postcolonial critique of international law, it suggests that the 'dynamics of exclusion' embedded in the laws of armed conflict may help to explain not only the way in which the war was fought in Vietnam, but also the reaction of the US and legal institutions to its deleterious impacts on humans and ecosystems. Revisiting past and current initiatives to address the effects of 'environmental warfare' in Vietnam raises hard questions on the role of international law and remedies vis-a-vis environmental degradation associated with contemporary conflicts in the Global South. It invites also to reflect on unintended consequences of proposals for law reforms that seek to reinforce environmental protection in war-torn countries, while reproducing injustices and discrimination.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - Resolving UN torts in US courts: 'Georges v United
Nations'
- Abstract: Anthony, Dorothea
  This article concerns the recent case of Georges v United Nations, which constitutes, to date, the most elaborate public law challenge to the principle of UN immunity from suit and private law attempt at procuring compensation from the UN for alleged malfeasance. Despite the fact that it relates to people and events in Haiti, the case was brought by United States lawyers on behalf of US plaintiffs, was decided by US courts, used the US-style class action method, called for reparations of US proportions and was intervened in by the US government. The article addresses how the US legal culture of expansionism, litigiousness and charity have influenced the case. It asks whether, in drawing on this culture, the US legal system has overextended its extraterritorial engagement in international and foreign affairs.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - Indigenous consent: A self-determination perspective
- Abstract: Yaffe, Nathan
  With the rise of 'Free, Prior and Informed Consent' ('FPIC'), obtaining consent from Indigenous peoples has become central to many struggles involving Indigenous communities. Yet even as consent-seeking practices become more universal, developments in the implementation of FPIC threaten to sever FPIC from its normative foundations. FPIC is a manifestation of, and pathway towards promoting, self-determined governance by Indigenous communities. Self-determination, however, is all but absent from the conception of FPIC articulated by those who often bear de facto responsibility for its implementation: companies who wish to pursue projects on Indigenous peoples' land. Companies have taken the lead in (i) generating normative guidance regarding FPIC, (ii) implementing FPIC processes and (iii) evaluating FPIC processes' implementation. Yet FPIC as interpreted and implemented by actors on the ground has heretofore received insufficient attention.
  
  This article critically evaluates emerging FPIC practices in light of FPIC's normative foundations. It suggests that we are witnessing 'FPIC's normative drift': a process whereby FPIC is adopted by companies, but denuded of its normative import. Corporate articulations of FPIC suggest companies employ a thin, liberal notion of consent, inconsistent with understanding FPIC as part of a self-determined governance process. I argue that corporate delegation of FPIC obligations has gone too far, such that independent oversight from settler state or independent authorities is needed. I explore options for the institutional and procedural form for settler state re-engagement.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - Protection of climate displaced persons under
international law: A case study from Mataso Island, Vanuatu
- Abstract: Wewerinke-Singh, Margaretha; van Geelen, Tess
  International human rights law has evolved to offer specific protection to persons who are internally displaced. This protection is becoming increasingly important as the effects of climate change are putting more populations around the world at risk of displacement. However, there is still limited empirical insight into the factors that enhance or undermine effective protection of the rights of climate displaced persons in practice. This article seeks to fill this gap, drawing on a case study of climate displacement resulting from Tropical Cyclone Pam which struck the Pacific Island nation of Vanuatu in March 2015. We note that Vanuatu has an expansive suite of laws and policies dedicated to disaster preparation, risk reduction and response, as well as climate change and disaster displacement. However, its capacity to fulfil its human rights obligations in the face of climate disasters is undermined by a lack of resources and institutional capacity. We argue that this gap must be addressed through an integrated approach to international law that emphasises human rights obligations of international cooperation and assistance along with obligations relating to climate change mitigation, adaptation and capacity building under international climate change law. Vanuatu's experience with Cyclone Pam also provides a clear case for strengthening the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts ('Warsaw Mechanism') in a manner that results in enhanced human rights protection for climate displaced persons.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - Climate change displacement and migration: An analysis
of the current international legal regime's deficiency, proposed solutions
and a way forward for Australia
- Abstract: Philip, Thea
  Recognising the likelihood of enhanced climate change related displacement in the near future, this paper seeks to critically evaluate the current international protection framework in its ability to respond to climate change-induced displacement and migration and identify existing legal gaps. Three proposed solutions to those gaps are analysed: a new international legal instrument; a protocol to the Convention Relating to the Status of Refugees or the United Nations Framework Convention on Climate Change; and enhanced pathways under existing migration schemes. It is concluded that Australia, in a position to assume regional leadership, must continue and improve upon its current regional migration efforts and further develop policy to respond proactively to climate change displacement through regional cooperation, labour mobility and new migration schemes, within a rights-based framework.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - Protecting the EU external borders and the prohibition
of refoulement
- Abstract: Oudejans, Nanda; Rijken, Conny; Pijnenburg, Annick
  This article investigates the relation between externalisation of border control to regulate or stop migration and the prohibition of refoulement. It aims to elucidate under what circumstances remote measures of border control trigger the obligations of states to protect persons from refoulement. The article focuses on the key concept of jurisdiction. Based on a rigorous study of literature and case law, de jure and de facto control as well as the exercise of public powers are identified as triggers of jurisdiction. Additionally, art 16 on aiding and assisting of the Articles on the Responsibility of States for Internationally Wrongful Acts ('ARSIWA') is discussed in relation to refoulement. Finally, in order to clarify state responsibility for refoulement the EU-Turkey Statement is assessed as a paradigmatic example of outsourcing border control.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - Enhancing accountability for environmental damage
under international law: Ecocide as a legal fulfilment of ecological
integrity
- Abstract: Mwanza, Rosemary
  The proposal to include ecocide as the fifth crime in the Rome Statute of the International Criminal Court ('Rome Statute') is part of ongoing efforts by jurists aimed at enhancing environmental protection through international criminal law. If adopted, the crime would be the first standalone environmental crime under the Rome Statute. Its proponents view it as a powerful liability norm for dealing with the humanitarian, ecological and structural aspects of environmental damage that together threaten international peace and security. Its accommodation into the Rome Statute would necessitate changes to the substantive provisions of the Statute. In light of the controversial change, this article raises questions about its feasibility as a criminal liability norm and concludes that the crime of ecocide represents an appropriate legal response to environmental damage. This argument is anchored on the ecological integrity framework understood as a grundnorm for international law.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT
Volume 19 Issue 2 - Put on notice: The role of the dispute requirement in
assessing jurisdiction and admissibility before the international court
- Abstract: McIntyre, Juliette
  Since the International Court of Justice handed down its 2016 judgments in the Marshall Islands cases, much has been written about the cases and their consequences. This article takes a step back, to view the Court's most recent treatment of the dispute requirement in the context of the principles developed in the Court's previous case law. It will be argued that the 'new' awareness requirement is potentially no more than a manifestation of the requirement for positive opposition, but that it has been driven by the Court's conceiving of the dispute requirement as a jurisdictional precondition and serves to impose a de facto pre-action notice requirement on parties seeking access to the Court.
  
  PubDate: Thu, 9 May 2019 13:19:45 GMT