Perspectives

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Settlement of Disputes to which International Organisations are a Party: A Spotlight on the ILC and its Relevance to the Pacific

by Dr Penelope Ridings | 24 Jul 2023

The International Law Commission (ILC) has launched a new topic: ‘Settlement of Disputes to which International Organisations are Party’. This complements its 2011 draft articles on the responsibility of international organisations and recognises that international organisations may incur responsibility but there may be no accountability without recourse to appropriate dispute settlement mechanisms. It also follows previous ILC work on legal issues involving international organisations. ILC draft articles led to a 1975 convention addressing diplomatic relations between States and international organisations and a 1986 convention on treaties with international...

Saudi Arabia’s Withdrawal from the Moon Agreement

by Dr Ricky J Lee | 24 Jul 2023

On 5 January 2023, Saudi Arabia gave notice to the United Nations of its withdrawal from the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”), to take effect on 5 January 2024. This marks the first time any State has withdrawn from any of the five “United Nations Space Treaties”, the most widely accepted of which is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”). As the withdrawal follows Saudi Arabia’s signing of the Artemis Accords with the United States, there is speculation that the withdrawal is...

Editorial: Edition 35

by Felicity Gerry KC | 22 Jun 2023

Tēnā koutou, yumalundi, and welcome to this edition of ANZSIL Perspectives. This edition is a retrospective from Sir David Barangwanath on the work of the Special Tribunal for Lebanon – fitting for the eighteenth anniversary of the Tribunal’s establishment, and almost exactly one year since it entered into its residual phase. The Tribunal is the first international entity to have prosecuted terrorist crimes—a judicial function which states have attempted to establish, in one form or another, since 1937. Sir David’s retrospective discusses the events which led to the establishment of the Special Tribunal, before summarizing the key legal issues and the major decisions issued. He provides an...

The Special Tribunal for Lebanon

by Hon Sir David Baragwanath KC | 22 Jun 2023

A perspective from the Special Tribunal for Lebanon is to ensure the rule of law is subordinate to no-one, and nothing. It met a number of attempts to the contrary. Lebanon, with a population of nearly seven million, is the coastal state demarking the eastern end of the Mediterranean. Its jurist Ulpian wrote 42% of Justinian’s Digest of the Roman Law, a foundation of much of the Romano-Germanic, Napoleonic and English common law recently described by Philip Wood CBE Hon KC in PRIMEtime Recording English Law as an Asset as Europe’s greatest contribution to civilisation. 1. The factual issues I begin with the facts. Rafiq Hariri had resigned his office as Prime Minister of Lebanon to secure...

Lyophilization and Lawfare in Ukraine v. Russia

by Juliette McIntyre | 6 Apr 2023

The Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia) case was instituted on 27 February 2022, a mere three days after the unlawful invasion of Ukraine got underway. On the one-year anniversary of these events, it is worth reflecting on what role of the International Court of Justice can play while Ukraine and Russia remain engaged in active, tragic, warfare. The case concerns the justifications put forward for Russia’s purported ‘special military operation’ on the territory of Ukraine. President Putin’s television address in the hours before the invasion was launched alleged the perpetration of ‘genocide’ by the...

The war in Ukraine and international law: Prosecuting the Crime of Aggression

by Yuliya Mik | 6 Apr 2023

As the first anniversary of Russia’s invasion of Ukraine has just passed, there are few signs of the war coming to an end in the near future. Readers will recall that the conflict between Russia and Ukraine – which has been ongoing since 2014 – took a significant turn on 24 February 2022, with Russia’s military invasion of Ukraine. Since then, as has been widely reported, Russia has conducted, and continues to launch, numerous attacks against civilians and civilian infrastructure in Ukraine, including ongoing missile strikes targeting residential blocs, hospitals and other civilian objects, and Ukraine’s energy infrastructure. In light of Russia’s ongoing war against Ukraine, the calls to...

Give Peace a Chance

by Alexander Gillespie | 6 Apr 2023

Prospects of peace and an end to the war in Ukraine need to be assessed in the context of three overlapping developments. Three events are overlapping. First, the war in the Ukraine is escalating in terms of both weaponry and casualties. This presents a problem for Putin as if the casualty estimate is correct (already over 100,000), he will run into a barrier greater than the enemy as he runs out, not of money or bullets, but men. If Russian wives and mothers love their children like everyone else, at some point, Putin will discover, as the Americans found out in Vietnam, that it will be domestic unrest couple with an unwinnable war, that will make a change of...

Editorial: Edition 33

by Felicity Gerry KC | 8 Mar 2023

WELCOME to our 33rd Edition of ANZSIL Perspective and the first for 2023, with an excellent perspective from Tianqi Gu on the State-Owned Enterprises (SOE) Chapter of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). There are a wealth of legal issues for international scholars and practitioners to analyse this year from the “Rising tide of climate litigation”, including legal challenges over fossil fuel companies climate risk disclosures. Such news allows us to reflect on other relatively recent developments such as the Land Court of Queensland decision in Waratah v Youth Verdict Galilee Coal...

The SOE Chapter of the CPTPP: An Effective Way to Regulate Chinese SOEs’ Foreign Direct Investments?

by Tianqi Gu | 8 Mar 2023

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) ultimately went into effect at the end of 2018 following a protracted negotiating process and evolution from the Trans-Pacific Partnership (TPP). This multilateral free trade agreement (FTA) includes a chapter on investments and, for the first time ever, a standalone chapter on State-owned enterprises (SOEs). The chapter is largely regarded as the most advanced and innovative set of regulations for SOE investors in the current body of foreign investment agreements (IIAs, including investment chapters in FTAs). Many advanced economies, most notably the US and the EU, have developed SOE regulations in...

ANZSIL Conversation post – Law and the Future of War update on the REAIM Summit

by Dr Lauren Sanders, Rain Liivoja and Dr Brendan Walker-Munro | 8 Mar 2023

On 15 and 16 February 2023, the Netherlands and Korean governments co-hosted a summit on Responsible Artificial Intelligence in the Military (REAIM) at the World Forum in The Hague. Attracting over 1800 attendees from academia, industry, and – importantly – governments, the Summit was the first of its kind in terms of scale, scope and ambition. Against the background of a decade of slow-moving debates about ‘lethal autonomous weapon systems’ in Geneva, the REAIM Summit seemed to send two signals: First, the current international and multidisciplinary attention on autonomy used in defence technology may need to be turned to the broader issue of AI in the military. Second, that the Group of...

Authors’ Rights as Human Rights

by Graeme Austin and Jane C Ginsburg | 21 Dec 2022

A September 2022 decision of the European Court of Human Rights (ECtHR), Safarov v Azerbaijan, reminds us that failing to protect authors’ rights is not just an economic issue. It can be a breach of human rights. The ECtHR case is not an isolated instance. A jurisprudence on the human rights of authors is emerging in an array of different contexts. It offers new ways of thinking about domestic policy debates about the rights of authors and states’ obligations to protect them. The ECtHR decision concerned a book that an NGO posted online without the author’s consent. In line with its earlier decisions, the ECtHR confirmed that the protection of “possessions” in the...

Defending Crimes of Aggression in Miami

by Felicity Gerry KC | 20 Dec 2022

At the International Bar Association (IBA) Conference last month in Miami, much talk was on Russian responsibility for aggression and atrocities in Ukraine. It began with opening remarks from Ukraine’s President Zelensky that “lawyers will ensure that all those guilty of terror are brought to justice”. The theme on the value of lawyers and justice systems to investigate and prosecute atrocities to end impunity was continued in a range of events throughout the week. As ever, the defence counsel voice was small but vocal in asking the difficult questions, not to “Trumpet” that international mechanisms do not work – they can and they do - but they must continue to work fairly and sometimes...

Almarzooqi v Salih: High Court Rules that Mahr under a Sharīʿa Law-based Contract is Enforceable in New Zealand

by Durgeshree Raman | 20 Dec 2022

For the first time in New Zealand (NZ), the High Court in Almarzooqi v Salih [2022] NZHC 1170 recently ruled that a refusal to pay mahr (dower/dowry) as part of a marriage contract concluded overseas as per sharīʿa law, constitutes a breach of contract that is enforceable. In setting out the basis for this decision, this article provides the background to the litigation, the matters arising from it and demonstrates how this decision is in line with the approaches taken in other common law jurisdictions. Background The parties to this litigation are Ms Almarzooqi, a citizen of UAE with residency status in NZ and Mr Salih, a NZ citizen. They are both Muslims and they got married in...

Remembering and celebrating the contributions of Moana Jackson (10 October 1945 – 31 March 2022)

by Michelle Kidd QSM and Edmond Currucan | 20 Dec 2022

This perspective may be unlike prior published perspectives to which you are accustomed. Different. Considered. Genuine and a little poetic. This is perhaps how Moana would have preferred it. Unlike Moana, I may not skillfully find one poignant joke or humorous story to share with you. Those of us who identify as tangata whenua, people of the land, and who have had the privilege of hearing him speak publicly can attest to many humorous and insightful stories Moana shared over the years. Each story helped to break the ice in a sombre setting and is a reminder of how tangata whenua can relate through our cultural lens. My reasoning in writing this perspective is that perhaps Moana always...

The Shifting Protections of War Correspondents under International Law – the example of Israel and the Palestinian Territories and South-East Europe

by Simon Levett | 11 Sep 2022

Journalists are continually subject to harm or the threat of harm during their reporting in foreign wars. The US based Committee to Protect Journalists states that at least 24 journalists have been murdered in 2022 so far globally. The surge in armed groups such as Islamic State and Al Qaeda after September 11, 2001, have also led to the increased targeting of war correspondents with corresponding unsafe conditions. Journalist for the Wall Street Journal Daniel Pearl was beheaded whilst reporting on the deteriorating situation in Pakistan in 2002. Many media staff have also been deliberately targeted. According to a 2022 report by the United Nations Economic, Social and Cultural...

SPOTLIGHT: H.E. Judge Antonio Augusto Cancado Trindade

by Justin Sobion | 11 Sep 2022

It was in the early days of June, while on a visit to my native country Trinidad and Tobago, that I learned about the sad passing of Judge Antonio Augusto Cançado Trindade. Although I never met the learned Judge in person, as a sitting Member of the International Court of Justice (ICJ) for well over a decade, I felt like I “knew” him vicariously through his work at this august institution. There are three reasons why I gravitated towards the esteemed Judge (and these reasons ascend in importance tremendously in chronological order). The first reason is that one of his names – “Trindade” – makes me feel somewhat nostalgic as it reminds me of the name of my beloved island. Secondly, coming...

New Technologies in the Global Battlespace: themes emerging from the IPSIG/Law and Future of War workshop held on Friday 13 May 2022

by Catherine Thornton and Kirsty McRuvie | 25 Jul 2022

By Catherine Thornton and Kirsty McRuvie (Kevin Hu, Unsplash) The workshop ‘New Technologies in the Global Battlespace’ was held by the International Peace and Security Interest Group (ISPIG) of ANZSIL and the University of Queensland’s Law and Future of War Research Group on the 13th of May 2022. The purpose of the workshop was to discuss academic papers and practical implications concerning the impact of new technologies on compliance with international humanitarian law (IHL) and public international law more broadly. Through presentations and Q&A dialogues, the workshop discussed current challenges within IHL concerning, inter alia, autonomy in weapons systems and data...

Terror in the time of Polio and COVID-19: The intersection of violence and contagion in Afghanistan

by Azadah Raz Mohammad, Andrea Olivares Jones and Karin Frodé | 19 Jul 2022

Badakhshan, Afghanistan (Unsplash - Joel Heard) In the first months of the Taliban’s violent takeover of Afghanistan last year, media reported widely on the chaotic withdrawal of US and allied forces, and the rapid escalation of the Taliban’s violence. The Taliban has targeted those who worked with US, NATO and Australian forces, women and girls, human rights defenders, members of the LGBTIQA+ community, and ethnic Hazaras, among others. Media attention on Afghanistan has since waned. This is despite the resulting humanitarian crisis which the UNDP has estimated could have now resulted in as much as 97% of the population living below the poverty line. Of particular concern and the...

EDITORIAL – Edition 29

by Felicity Gerry KC | 8 Jun 2022

WELCOME to our 29th edition of ANZSIL Perspective with an excellent perspective by Neil Boister on Trust in Translation: Diplomatic Assurances, the New Zealand Supreme Court, and Extradition to China and a book review from Tamsin Paige On Tyranny and the Global Legal Order by Prof Aoife O’Donoghue This year we have seen the Russian invasion and aggression on Ukraine, a violation of international law, including the prohibition on the use of force under Article 2(4) of the United Nations Charter, the principle of territorial integrity and self-determination of peoples. Personally, I was proud to lead a team making an amicus curiae observation in the Dominic Ongwen appeal at the International...

Trust in Translation: Diplomatic Assurances, the New Zealand Supreme Court, and Extradition to China

by Neil Boister | 8 Jun 2022

In 1606 in the République, Jean Bodin argued that it was wrong to render up the guiltless to a sovereign who wished to punish them, but right to render up the guilty. Today guilt alone is insufficient for extradition. The 1989 judgment of the European Court of Human Rights in Soering v UK set a precedent which forced the courts in States committed to human rights to enquire into the potential for a human rights breach in a State requesting extradition. The various human rights covenants generate a clear obligation of non-refoulement where potential breach of human rights obligations may occur. Subsequent domestic legislation and judicial decisions has, however, eroded that obligation of...

BOOK REVIEW: On Tyranny and the Global Legal Order by Prof Aoife O’Donoghue

by Tamsin Phillipa Paige | 8 Jun 2022

While the question of tyranny and how the law creates and supports tyranny in society arises frequently in research, including my own, until this delightful new book there has been no comprehensive treatment of the concept. In On Tyranny in the Global Legal Order, O’Donoghue engages with the deep historical review of the philosophical thought on what constitutes tyranny before engaging in an exploration of what that means in our contemporary context. This is both important and valuable because, as O’Donoghue notes, the concept of tyranny shortly after World War II became somewhat banished from political thought in favour of related, but less adaptable, ways of expressing governmental...

Waitangi Tribunal Forces NZ Rethink on Digital Trade Rules

by Jane Kelsey | 8 May 2022

The Waitangi Tribunal issued its final report on the six-year Inquiry into the Trans-Pacific Partnership Agreement (TPPA), and its successor the Comprehensive and Progressive agreement for TransPacific Partnership (CPTPP), in November 2021. The Tribunal’s statutory role is to inquire into and make non-binding recommendations on claims submitted by Māori that they have been or are likely to be prejudicially affected by acts or omissions of the Crown that are inconsistent with the principles of the Treaty of Waitangi. The legislation recognises that the Māori version (Te Tiriti o Waitangi) that Māori adopted in 1840, and English language texts (The Treaty of Waitangi), have significant...

On Some Recent Universal Jurisdiction Contexts and Cycles

by Kiran Mohandas Menon | 18 Mar 2022

It could be argued that the progress of universal jurisdiction has been defined by cycles, in that it has had periods of relative dormancy, at least in terms of profile, and phases of resurgence. The mere claim that there can exist a ‘universal criminal jurisdiction’ albeit for certain grave and selected crimes, is a claim that evokes great political sensitivity and legal confusion. Universal Jurisdiction in context Maximo Langer surveyed 1051 universal jurisdiction related complaints received by public authorities in different nations and juxtaposed this with the numbers that went into trial and the nationality of the defendants. This revealed that in the case of 87 complaints brought...

From Pinochet to Anwar R.

by Melinda Rankin | 18 Mar 2022

Non state actors, particularly witnesses and victims of atrocity crimes, have long played a critical role in holding those most responsible for crimes against humanity to account. In January this year, German judges in the Higher Regional Court of Koblenz found Anwar R., a former member of the Syrian secret service, guilty of crimes against humanity in the form of killing, torture, serious deprivation of liberty, rape and sexual assault in combination with murder in 27 cases. The first case of its kind against a senior leader of the Syrian government, Anwar R was given a life sentence for his role in the wide-spread and systematic oppression of the civilian opposition by Syrian government...

Call AP for Feb 2022

by ANZSIL Perspective | 6 Feb 2022

ANZSIL Perspective Call for Perspectives 18 February 2022 ANZSIL Perspective 27th Edition The editorial team of ANZSIL Perspective are delighted to announce the forthcoming 27th Edition of ANZSIL Perspective. We invite International Scholars and Practitioners to contribute short commentaries (+/- 1000 words) on areas of interest in international law for publication as a Perspective to our membership and online at the ANZSIL Perspective Webpage. In our November 2021 edition we heard from Monique Cormier on The International Legal Implications of AUKUS: A Poor Precedent for Non-Proliferation, Alberto Alvarez-Jimenez on The New Zealand Supreme Court and the UN International Law Commission: A...

The International Legal Implications of AUKUS: A Poor Precedent for Non-Proliferation

by Monique Cormier | 19 Dec 2021

We don’t yet know very much about the AUKUS trilateral security partnership beyond the announcement that its ‘first major initiative… will be to deliver a nuclear-powered submarine fleet for Australia’. This news triggered a wave of commentary on the diplomatic, security and technical implications of Australia’s planned acquisition of nuclear-powered submarines, but the legal implications of this development have yet to be fully explored. In this short piece I will consider the potential ramifications for the international nuclear non-proliferation regime, focusing on the Nuclear Non-Proliferation Treaty of 1968 (NPT) and related agreements. Nuclear Non-Proliferation Treaty At the time of...

The New Zealand Supreme Court and the UN International Law Commission: A Dialogue on Subsequent Conduct in the Interpretation of Contracts and Treaties

by Alberto Alvarez-Jimenez | 19 Dec 2021

“The written word is unalterable”. F. Kafka. The Trial The New Zealand Supreme Court (NZSC) in Bathurst Resources Limited v L & M Coal Holdings Limited recently explored the issue of evidence of subsequent conduct in the interpretation of contracts. Generally, the role of subsequent conduct is limited. In 2018, the United Nations International Law Commission (ILC) examined in detail the use of subsequent agreements and practice in the interpretation of international treaties under art 31(3)(a) & (b) and art 32 of the Vienna Convention on the Law of Treaties. The role of these subsequent agreements and practices can be significant. Despite the contrast between contracts and...

Meet the new members of the ANZSIL Perspective editorial team

by ANZSIL Perspective | 10 Nov 2021

Caroline and Alberto join the editorial reviewers Dr. Caroline Foster is Acting Director at the New Zealand Centre for Environmental Law (NZCEL) at the University of Auckland Law Faculty. She recently completed a new monograph Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard and Due Diligence (Oxford University Press, 2021) complementing her previous book with Cambridge University Press Science, Proof and Precaution in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality. She teaches international law in the LLB and international dispute settlement in the LLM as well as on...

Small States and Law of the Sea ‘Litigation’ Against Greater Powers

by Douglas Guilfoyle | 10 Nov 2021

Are small States making increasing – and strategic – use of law of the sea dispute settlement mechanisms against greater powers? In cases such as Philippines v China, Timor-Leste v Australia, Ukraine v Russia and Mauritius v UK, States with relatively limited power have been able to use formal sovereign equality to invoke UNCLOS proceedings against States - often permanent members of the Security Council - which would appear to be in significantly stronger positions. We are also seeing not-unrelated legal strategies play out in Vanuatu’s recent plan to seek an advisory opinion from the International Court of Justice on the legal consequences of climate change. It’s an important set of...

What International Frameworks Would Effect Structural Change in North Korea?

by Daye Gang | 15 Sep 2021

Introduction How is it that the Democratic People’s Republic of Korea, a fairly isolationist State under some of the world’s harshest sanctions, having experienced two transitions of power, one extreme drought and famine, and one global pandemic, still exists? The answer, necessarily broad within a very complex setting, lies in the resourcefulness and adaptability required by the extortionate demands of central leadership. International and Domestic Sanctions North Korea is subject to some of the most restrictive sanctions in the world: United Nations Security Council sanctions have been in place since 2006, progressively covering many of the goods North Korea trades internationally. Among...

Global Deforestation is an issue of International Concern, and a Transnational Law Response could be the Solution

by Hannah Harris, Isabella Knowles, Monica Pedro and Madison Toohey | 15 Sep 2021

Forests are essential to our planet’s ability to sustain life. Deforestation results in loss of vital ecosystems and biodiversity, and increased carbon dioxide in the atmosphere, accelerating climate change and undermining our planet’s resilience. Illegal logging is a significant barrier to ending global deforestation and protecting vital forest ecosystems. As international consensus is reached on the need to protect global forest resources, agreements will be forged to do so. However, these agreements will only be as effective as the laws in place to implement and enforce them. The path to ending deforestation is paved with laws, and with laws, comes the risk of illegality. The...

The Importance of Flexibility in Regulating Lethal Autonomous Weapon Systems

by Tarisa Yasin | 18 Jul 2021

The debate on the development and use of lethal autonomous weapon systems (LAWS), which will also be referred to as weapon systems, has been going on for several years now. A LAWS, as defined by the International Committee of the Red Cross, is ‘a weapon that can select (i.e. search for, detect, identify, track or select) and attack (i.e. use force against, neutralize, damage or destroy)’ targets with little to no human intervention. Therefore, a key issue in the debate is whether it is necessary for human control to be retained over the use of a LAWS to ensure that it complies with existing international humanitarian law (IHL) principles such as the principles of distinction and...

When consultations fail to deliver consensus – electing the third ICC Prosecutor by unprecedented vote

by Phoebe Copeland and Keilin Anderson | 29 May 2021

On 12 February 2021, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) elected Karim Khan QC as the Court’s next Prosecutor. The election followed a series of formal consultations between States Parties, which were constructive and narrowed the field, but ultimately failed to identify a consensus candidate. As a result, the election of the Prosecutor was resolved by secret ballot for the time since the establishment of the Court in 2002. Khan will replace outgoing Prosecutor, Fatou Bensouda, on 16 June 2021 and will serve a nonrenewable term of nine years as Prosecutor. Khan’s election comes at an important juncture for the Office of the Prosecutor (OTP)...

The COVID-19 Pandemic and Trade-Related Security Exceptions: An Analysis of the Flexibility under International Law

by Muhammad Zaheer Abbas | 29 May 2021

The COVID-19 pandemic has raised serious concerns about affordable and equitable access to the needed health technologies. The patent-based pricing model of health technologies further exacerbates these concerns. This paper critically evaluates Article 73(b) of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO TRIPS Agreement) to answer the key question: whether this safeguard provision can be invoked by WTO Member States in response to COVID-19 in order to improve access to critically needed health technologies. This is an important question because access to health technologies is a matter of life and death in a pandemic situation....

Ensuring Respect for International Humanitarian Law Well Beyond the Battlefield

by Marnie LLoydd and Eve Massingham | 29 May 2021

States have a responsibility to create an environment conducive to all States’ capacity to build respect for the laws of armed conflict (also known as international humanitarian law or IHL). This is just one expression of the obligation found in Common Article 1 to the Geneva Conventions (and Additional Protocol I and III thereto), to respect and ensure respect for IHL. As is explored further in the recently published volume Ensuring Respect for International Humanitarian Law, there are a number of different ways in which States fulfil this obligation, and challenge it, in their conduct with regard to other States and other entities. The obligation to respect and to ensure respect for IHL...

In Law and Practice: Australia’s Obligation to Prohibit Child Detention in the Context of International Migration

by Kristie Bluett | 31 Mar 2021

More than three years have passed since the United Nations Committee on the Rights of the Child issued new general comments pronouncing immigration-related detention of children to be a clear violation of the Convention on the Rights of the Child (CRC). However, many States parties to the CRC, including Australia, have failed to adjust their laws and practices to comply with the new international standard. It is time for them to do so. Immigration Detention Violates the Child’s Best Interest On 16 November 2017, the Committee on the Rights of the Child published two Joint General Comments together with the Committee on the Protection of the Rights of All Migrant Workers and Members of...

Protecting equality in the context of the proliferation of artificial intelligence technology

by Tetyana Krupiy | 31 Mar 2021

The advances in artificial intelligence technology create an imperative to protect individuals from discrimination in the context of automated decisions. In order to meet their obligations under Article 26 of the International Covenant on Civil and Political Rights (ICCPR) states need to adopt a holistic and multi-pronged approach to regulation. Anna Lauren Hoffmann coined the term “data violence” to talk about incidents when developers gather data and program artificial intelligence systems in a manner which results in harmful outcomes for individuals. Hoffmann elaborates that, “Those choices are built on assumptions and prejudices about people, intimately weaving them into processes and...

Legal Acts and Legal Facts: The Mauritius/ Maldives Maritime Boundary Dispute in the Chagos Archipelago

by Karen N Scott | 23 Feb 2021

On 28 January 2021 a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) delivered its decision in the preliminary objections stage of the Indian Ocean maritime boundary dispute between Mauritius and the Maldives. Belying its dry nomenclature, this case has implications well beyond the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Special Chamber dismissed the jurisdictional objections of the Maldives and proceeded on the basis that Mauritius is the relevant sovereign coastal state for the Chagos Archipelago, following the 2019 Advisory Opinion of the ICJ on the Legal Consequences of the Separation of the Chagos Archipelago from...

Leadership Liability for Torture: Complementarity and the age-old problem with complicity in the UK and Australia

by Elies Sliedregt and Felicity Gerry KC | 23 Feb 2021

Recently ANZSIL member Douglas Guilfoyle discussed the concern that the Brereton report into war crimes by Australians in Afghanistan apparently finds no evidence that “there was knowledge of, or reckless indifference to, the commission of war crimes, on the part of Troop, Squadron and Task Group Commanders, or higher commanders.” The report foreshadowed disciplinary and administrative consequences for leaders and commanders but not criminal prosecution. This article questions whether Australia and the UK are willing and able to prosecute public officials for torture which took place overseas when there is no clear route to establishing complicity or superior liability. As Melanie O’Brien...

Accountability for the perpetration of war crimes in Afghanistan

by Azadah Raz Mohammad, Anna McNeil and Felicity Gerry KC | 12 Feb 2021

The history of modern Afghanistan is one of internecine and systemic violence. The current prospects for peace and security in Afghanistan after more than four decades of war are uncertain. The question now is whether Afghanistan can move forward without addressing the legacies of its violent past. If it does decide to address them, what are the available or appropriate remedies to achieve accountability for these atrocities? After nearly two decades of conflict, the United States (U.S.) and the Taliban movement (The Taliban) signed a peace agreement on 29th of February 2020, aimed at ending the U.S.'s longest running war. The agreement set the stage for intra-Afghan peace talks and a...

A Community-based approach to address refugee resettlement in Australia

by Shamreeza Riaz | 12 Feb 2021

In the backdrop of the COVID-19 pandemic, Australia’s current refugee Community Sponsorship Program (CSP) in Queensland needs socially distinct community-led support. The concept of a community sponsorship-based approach to address the refugee crisis is not new and was advocated in 1983 by the Gervase JL. Coles, a United Nations High Commissioner for Refugees (UNHCR) legal researcher. Coles argued that ‘Man is a social being who needs a community not only for the security that it gives but also for the provision of the conditions necessary for his general well-being and for the realization of his potential’. According to Coles, ‘international protection should be seen as a necessary...

Managing the Impact of COVID-19 in Western and Central Pacific Fisheries: Balancing Protection of Peoples with Resource Conservation through International Law

by Penelope Ridings | 12 Feb 2021

COVID-19 and its impact on global supply chains has been a focus of recent discussions on the pandemic. International organisations such as the Food and Agriculture Organisation have sought to provide guidance on measures which can be taken to protect supply chains and the incomes of fishing communities, while maintaining appropriate fisheries control measures. The practical impact of COVID-19 on the Pacific tuna fishery has been highlighted, particularly in light of the economic reliance of small island developing States on tuna fisheries. There are significant concerns over the impact of the virus on Pacific island countries which to date have largely been COVID-19 free. These issues...

Shipbreaking Industry – Responsibility of the Maritime Industry

by Mohammad Zulfikar Ali | 15 Nov 2020

Overview and Problem Definition Shipbreaking is the term used to define the process of breaking up old ships. It involves the activity of removing reusable materials, such as steel scraps, furniture, electronic materials etc. found in a used ship. Under Article 2.10 of the Hong Kong International Convention for the Safe and Environmentally Sound Recycling (Hong Kong Convention), the term ‘ship recycling’ is used instead of shipbreaking, because most of the materials found in an old ship can be reused and reprocessed. International shipping companies own and use ships for their trade and finally sell them predominantly to Bangladesh, India, and Pakistan for breaking up. Karim, Alcaidea,...

Transnational feminisms: Trafficked women, death row, autonomy and systemic reform

by Felicity Gerry KC | 15 Nov 2020

This article is a summary of a preliminary paper presented to the ANZSIL Gender Sexuality and International Law Special Interest Group Series on 5 November 2020, with particular thanks to those who gave feedback. As Australia and New Zealand develop policy for the protection of trafficked persons, this article calls for a legal defence for trafficked persons which recognises the loss of autonomy which comes with being trafficked. It also calls for an audit of prisons globally to identify and exonerate women trafficked to commit crime, particularly those on death row. In 2015, Mary Jane Veloso was reprieved from execution in Indonesia on the same death row as Australians Andrew Chan and...

Brenton Tarrant and Trans-Tasman Prisoner Transfers

by Donald R Rothwell | 15 Nov 2020

Should Brenton Tarrant be returned to Australia? Certainly that was the view of the then New Zealand Foreign Minister Winston Peters in August, who argued Tarrant should be returned to the country that raised him. Professor Al Gillespie of Waikato University has also promoted this view. The New Zealand Nationals leader, Judith Collins had another view, telling the Sydney Morning Herald in September that she was fearful that if Tarrant was returned to Australia “a flood of criminals in Australian jails could be sent the other way.” Both Jacinda Ardern and Scott Morrison have been more circumspect. New Zealand has yet to make any formal request to Canberra regarding Tarrant’s return to...

The Brereton Report: War Crimes Allegations and Command Responsibility

by Melanie O’Brien | 15 Nov 2020

On 19 November 2020, the Australian Defence Force released a report prepared after four years of investigation by Justice Paul Brereton. The Inspector-General of the Australian Defence Force Afghanistan Inquiry Report provides redacted details of allegations of war crimes committed by Australian Special Forces soldiers in Afghanistan between 2005 and 2016. There are many potential discussion topics within the report, such as prosecution procedural challenges, but only a few can be covered here. This perspective will focus on the relevant substantive law, and the issue of command responsibility that the report raises. I preface this analysis by saying that significant portions of the detail...

Perceived Threats to the Making and Enforcement of International Law

by Bill Campbell | 12 Oct 2020

Two key elements underpinning international law and the important role it plays in the international system appear to be under some stress. Those two underpinnings are the development and subsequent acceptance of rules of international law to meet emerging international challenges and the application and enforcement of existing rules of international law. Threats to the development and acceptance of rules of international law First, with some notable exceptions, it is becoming increasingly difficult to develop new and effective treaty rules on matters requiring global attention, where the subject matter is challenging and/or the threat faced is both imminent and real. Without attempting to...

Prisoners of war: Updating our thinking on the law of armed conflict

by Wing Commander Tim Wood, Royal New Zealand AirForce | 12 Oct 2020

In an era in which a number of developed nations, including the United States, the United Kingdom, Australia and New Zealand have been accused of ill-treating or unlawfully killing captured persons or persons under their control, the need for international bright-lines has never been more important.

Genocide, the duty to protect and complicity: Is Australia sailing close to the wind in Myanmar?

by Felicity Gerry KC, Eva Buzo and Anna McNeil | 12 Sep 2020

As Canada and the Netherlands announce their intention to intervene in proceedings against the Republic of the Union of Myanmar (hereinafter “Myanmar”) concerning alleged violations of the Genocide Convention before the International Court of Justice in order "to prevent the crime of genocide and hold those responsible to account", this article considers whether Australia should do the same, particularly as Australia has not adopted all the recommendations of the Independent International Fact Finding Mission on Myanmar (IIFFM) report of 12 September 2018 and has maintained both diplomatic and military relationships with Myanmar. Background On 11 November 2019, the Republic of The Gambia...

Is a recent Argentine map of the Antarctic Peninsula a potential source of tension within the Antarctic Treaty System?

by Bruno Arpi | 12 Sep 2020

Despite common perceptions to the contrary, national concerns over territorial claims in Antarctica are not completely “frozen”. These national concerns have recently been brought to light by an amendment to Argentinian legislation on “Maritime Spaces” and publication of a map (see figure 1) relating to its claim to a continental shelf beyond 200 nautical miles (M). These developments have sparked political tension between Argentina and Chile regarding their overlapping claims to territory in the Antarctic Peninsula. Although these events might at first glance appear peripheral to Australia and New Zealand’s interests in Antarctica, this paper argues that they are pertinent and could have...

Sexual Harassment: Human Rights Obligations

by Melanie O’Brien | 12 Sep 2020

Sexual harassment in the legal profession has been much discussed in Australia this year, after the announcement from the High Court that an investigation had found former High Court Justice Dyson Heydon had sexually harassed six women who worked at the High Court. Other allegations followed. There have been studies in Australia on the prevalence of sexual harassment in the workplace, and in the legal profession more specifically. The International Bar Association also looked at the pervasiveness of sexual harassment globally, finding that 1 in 3 female respondents had experienced sexual harassment in the workplace. It is also commonplace in academia, pushing many women out of the...

Allegiance is a Bond of Protection Not a Means through which to Deliver a Punitive Moral Judgement

by Sue Milne, Cate Read, Eamonn Kelly and Felicity Gerry KC | 12 Aug 2020

Stranded in the al-Hawl refugee camp in Northern Syria for the last two years, Australian women and children have desperately been seeking repatriation to Australia. In response, the Australian Government has steadfastly resisted repatriation efforts and requests. Underpinning this stance is an inchoate assertion — a perception — that these women and children have transferred their allegiance to ISIS. Rebecca Barber argued powerfully in the last ANZSIL Perspective that humanitarian aid must continue. We suggest that arguments of this nature provide a moral foundation upon which to advocate for the repatriation of Australian woman and children, with repatriation efforts being intrinsic to...

Further Thoughts on Australia/Hong Kong Relations on Extradition and Other Matters in Transnational Criminal Law

by Liam MacAndrews | 12 Aug 2020

All views expressed in the above article are the author's own and do not necessarily reflect those of his firm. In the July edition of ANZSIL Perspective, Holly Cullen authored an informative article examining Australia’s suspension of its Extradition Agreement with Hong Kong and, in particular, the surrounding framework of international law. Since then, however, Hong Kong’s relationships with Australia and other western nations on this and related topics have seemingly progressed further down the same trajectory. Given the evolving nature of Australia’s relations with Hong Kong in this regard, this article will seek to add some further thoughts to Adjunct Professor Cullen’s analysis, as...

Australia Clarifies its South China Sea Legal Position in Responding to China

by Donald R Rothwell | 12 Aug 2020

Australia’s 23 July statement to the UN Secretary-General in formal response to a series of diplomatic exchanges between Malaysia, China and other states is the clearest to date on legal issues associated with China’s South China Sea maritime claims. Diplomatically the statement is unremarkable, legally though, it makes Australia’s position on some key issues very clear. It came at a time when Trump Administration officials were also speaking about the South China Sea. Secretary of State, Mike Pompeo, in a 13 July press statement asserted that “Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful...”. The Australian statement was made through...

All is Fair in Law and War: Legal Cynicism in the Israeli-Palestinian Conflict

by Shiri Krebs | 12 Aug 2020

Can legal fact-finding processes into wartime actions resolve factual and legal disputes about these events? Despite the growing popularity of international and domestic legal fact-finding processes, recent examples demonstrate that the terminology and epistemology of international humanitarian law (IHL) can intensify the very factual and legal controversies they were designed to resolve. Some explanations for this unintended outcome of IHL-based fact-finding efforts relate to the legitimacy, credibility, and trustworthiness of the fact-finding bodies (Bassiouni, 2001). Other explanations are rooted in motivated cognition processes, leading individuals to reject facts inconsistent with...

Suspending the Australia-Hong Kong Extradition Treaty After the National Security Law

by Holly Cullen | 12 Jul 2020

States have begun to respond to China’s adoption of a new national security law for Hong Kong, bypassing the Hong Kong legislature. Key features of the new law include life sentences for crimes of secession and subversion of state power, and more active state oversight of political activity linked with foreign organisations. Immediately after the law’s adoption, the Hong Kong government announced the formation of special police and prosecution units to enforce the law. By early July, hundreds of protesters had been arrested, some under the law with its much harsher penalties. Some worry that those charged under the law could be extradited to mainland China, a policy which had been strongly...

Legal Options for Cross-Border Humanitarian Assistance in Syria, with or without the Security Council

by Rebecca Barber | 12 Jul 2020

Over a period of five days earlier this month, the UN Security Council conducted nine rounds of voting on five draft resolutions, before finally reaching a compromise on the issue of whether to authorise cross-border humanitarian assistance to millions of desperately vulnerable people in northwest Syria. The compromise – Security Council Resolution 2533 – was to allow aid to pass through just one of the two Turkish border crossings that previously had been authorised by the Council. It effectively cuts off humanitarian assistance to 1.3 million people in the Aleppo governorate – an outcome that humanitarian agencies had spent weeks of intensive lobbying trying to avoid. The Council was,...

As lockdown lifts, it is time to repatriate women and children held in Syrian camps

by Eamonn Kelly, Felicity Gerry KC, Sue Milne and Cate Read | 12 Jun 2020

Australian women and children currently being held in the Al-Hawl camp in Syria present a jurisdictional headache for their home States, some of whom have made domestic criminal allegations against these citizens in respect of their conduct abroad. In Australia, senior ministers allege, amongst other things, that citizens detained in Syrian refugee camps have committed foreign fighter offences and pose a risk to the Australian community if repatriated. This short article considers a State’s duties to protect its citizens, particularly women and children, as an incident of nationality and a citizens’ right to return to Australia, especially where alleged crimes empower Australian Courts...

Interrogating the Definition of Women Human Rights Defenders

by Susan Harris Rimmer, Emma Palmer and Jacob Montford | 12 May 2020

International lawyers love a good crisis, argues Hilary Charlesworth, though this tendency can often impoverish the discipline of international law. So whilst all eyes are drawn to the pandemic, we alert you to the closing of civil society space in many parts of the globe, including for women human rights defenders. On 16 March 2020, a group of UN human rights experts said that ‘emergency declarations based on the COVID-19 outbreak should not be used as a basis to target particular groups, minorities, or individuals. It should not function as a cover for repressive action under the guise of protecting health... and should not be used simply to quash dissent.’ We should stay focused on the...

Joint Criminal Enterprise in the Kosovo Specialist Chambers

by Jonathan Rees QC and Felicity Gerry KC | 12 May 2020

Now that indictments have been filed with the Kosovo Specialist Chambers (KSC) for review by the Pre-Trial Judge, one of the issues on the KSC’s horizon will be whether it adopts, as a basis for individual criminal responsibility, the extended form of joint criminal enterprise known as ‘JCE III’. By way of background, although the KSC is a ‘hybrid’ court, Article 3.2.d of the Law on Specialist Chambers and Specialist Prosecutor’s Office (the KSC Statute) gives customary international law superiority over domestic law. Specifically, the basis for individual criminal responsibility in relation to Crimes Against Humanity under International Law (Article 13) and War Crimes under International...

COVID-19 and the UN Security Council: Should We Expect an Intervention?

by Ash Murphy | 12 May 2020

When the 2014 West African Ebola crisis reached its pinnacle the UN Security Council (UNSC) took the unprecedented step of declaring the outbreak an Article 39 threat to international peace and security – thus activating its most powerful tool under the UN Charter. Just six years on, COVID-19 has gripped the planet with unrivalled intensity, generating over 3 million cases and causing 205,000 deaths (at the time of writing). However, the UNSC remains in a guise of hibernation and has not yet adopted a meaningful position on what Secretary-General Guterres has called ‘the most challenging crisis we have faced since the Second World War’. This inaction may appear inconsistent given the 2014...

Antarctic Governance in a Time of Coronavirus

by Alan D Hemmings | 12 May 2020

Antarctic governance under the Antarctic Treaty System2 is achieved through two annual decision-making meetings. The Antarctic Treaty Consultative Meeting for the Antarctic Treaty and Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol); the Commission for the Conservation of Antarctic Marine Living Resources for the Convention for the Conservation of Antarctic Marine Living Resources. Consultative Meetings are rotated through Consultative states; Commission Meetings are held in Hobart. Decision-making in both is by consensus of those present. The difficulty that presents itself in 2020 is that the global pandemic of Covid-19 has closed down (or seems likely to)...

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