Editorial: Edition 37

Written by Felicity Gerry KC



Tēnā koutou, yumalundi, and welcome to this edition of ANZSIL Perspective. I hope it inspires your work and to answer our call for new perspectives. The next deadline is 26 January 2024.

This month we have two excellent Perspectives: From Leilani Tuala-Warren on Pacific political and constitutional dynamism and the challenges faced and from  An Hertogen on disute settlement in trade and issues raised by solutions to accommodate national security exceptions. We also have an new form of Perspective in the form of an interview with Hon Justice van Bohemen by our team member Jessica Kirton-Luxford. A chance to read the elevator pitch for a High Court Judge!

In international law, recent months have been busy for scholars and practitioners, across the breadth of its subject matter areas. The conflict in Gaza has raised serious questions about the workability and integrity of IHL; the International Court of Justice has issued several provisional measures orders and received a new advisory opinion request and COP28 has produced its outcome document; and a new government in New Zealand has led scholars to discuss shifting approaches to international legal matters, an issue in many jurisdictions about which ANZSIL Perspective is ever interested.

The ongoing conflict in Israel and the Occupied territories, which commenced in early October following Hamas’ targeting of civilians, is nothing less than a tragedy. Following Hamas’ attacks on October 7—which were targeted towards civilians and led to the taking of hostages—the Israeli armed forces commenced a large-scale campaign in the Gaza Strip—one which has resulted in the widespread destruction of civilian objects, including hospitals, and a civilian casualty proportion above the average of all conflicts since the second World War. A lack of consensus among Security Council members has prevented coordinated international intervention, and the humanitarian situation in Gaza continues to deteriorate. For the first time since the Cold War, article 99 of the Charter has been invoked.  With no clear end in sight, the conflict has sparked debate about the appropriate interpretation and ongoing relevance of international humanitarian law, particularly whether its fundamental principles remain respected by belligerents.

The General Assembly has continued to fulfil its residual responsibility for international peace and security, including in Israel and the Occupied Territories. On December 12 it overwhelmingly adopted a resolution demanding a ceasefire, acting under the Uniting for Peace framework. Australia, notably, voted for the resolution—a shift from its abstention on a previous resolution in October, and its traditional voting pattern on Middle Eastern issues in the Fourth Committee. The Governments of Australia, Canada and New Zealand have also issued a joint statement calling for an extended humanitarian pause and compliance with IHL. These developments demonstrate increased international pressure to comply with IHL and move towards a cessation of hostilities, but it remains unclear when the conflict—and the violations of human dignity it brings—will abate.

Karim Kahn KC said in Egypt that “we need the law more than ever. Not the law in abstract terms, not the law as a theory for academicians, lawyers and judges. But we need to see justice in action. People need to see that the law has an impact on their lives.” It is rhetoric that is important in the path for peace but risks the value of scholarship that can ensure law can function within proper franeworks for which we as scholars need to be very mindful.

In commemoration of the 75th anniversary of the Universal Declaration of Human Rights, I spoke at an event at SOAS in London: “Protect, Prevent, Punish: Mobilizing Law in Defence of Gaza” where we considered how lawyers are responding and might yet respond to the situation unfolding in Gaza. Specifically, we considered whether and how law can be mobilised to pursue various avenues for redress available to protect human rights, prevent genocide, and punish perpetrators of war crimes and crimes against humanity. We were  asked to confront the reality of whether the situation in Gaza signals the futility of legal efforts or whether and how the law can as yet enable the pursuit of justice? It is an interesting question for our members to discuss in Perspectives.

The International Court of Justice has continued to see an increased rate of activity, demonstrating that despite an uptick in conflict, most states still see value in the peaceful settlement of disputes. It has ordered provisional measures in three recent cases: Armenia v Azerbaijan, Canada-Netherlands v Syria, and Guyana v Venezuela. Whether these provisional measures will be effectively implemented is another question; Syria has adopted a strategy of non-appearance before the Court, and Venezuela has openly violated the relevant provisional measures order. The Court has also received a new advisory opinion request from the ILO on the right to strike and ILO convention 87, and has authorized the Pacific Community to participate in the proceedings of its upcoming advisory opinion on obligations of states in respect of climate change.

In environmental and climate law, COP28 has adopted its outcome document after a particularly heated negotiation. The draft document proposed by the presidency was heavily criticized including by Australia, New Zealand, and Pacific Island states; the final outcome document has seen a mixed reaction from states and non-governmental actors. Key achievements of this COP include the first express acknowledgement that fossil fuels are scientifically linked to climate change, and approval of a loss and damage fund, to be hosted by the World Bank.

In the region, the change in New Zealand’s government has been accompanied by a slight shift in its approach to international legal matters. Minister Peters’ 11 December speech to the diplomatic corps affirmed that New Zealand remains committed to a rules-based international order and the peaceful settlement of disputes, but also placed a renewed emphasis on the notion of a regional normative order in the Indo-Pacific. While he did not explicitly refer to international law, he did emphasise the principle of sovereign equality and the ongoing importance of internationally agreed rules and norms. Separately, New Zealand has provisionally rejected the May 2022 amendments to the International Health Regulations, as part of a promise made during coalition negotiations; and its government has signalled a renewed focus on the negotiation and conclusion of free trade agreements, in particular with India.

In Australia the Australian Centre for International Justice has been active in seeking redress for alleged violation of UK sanctions by an Australian-linked mining company in Myanmar and have supported legal action in the Federal Court of Australia seeking access to all permits allowing the export of arms and weapons to Israel that have been granted by the Minister for Defence since 7 October 2023. As I said, it has been a very busy year for international lawyers and this does not like abating in 2024. The ANZSIL Perspective team wish you a great end of year break and look forward to your contributions next year.

As always, ANZSIL Perspective welcomes expert contributions on any of these issues, or any other topics presently testing international law, whether those contributions come from our members or beyond. We warmly invite you to submit your perspectives on public international, private international, and domestic-international interface legal matters. ANZSIL Perspectives are conversational in tone and designed to encourage debate, so we also would be glad to receive any responses you may have to pieces published. We look forward to receiving submissions from a diverse range of scholars, including new and emerging authors.

Felicity Gerry KC

Felicity is on the lists of counsel for the ICC and KSC having come to international practice now her children are older. She is admitted in England and Wales and Australia (Victoria and the High Court Roll) and specialises in complex criminal law cases, generally involving an international element including terrorism, homicide, biosecurity and human trafficking. She has a particular interest in complicity as leading counsel in the UK Supreme Court decision in R v Jogee [2016] UKSC 8 and having led an amicus brief on CIL and complicity in the ICTY. She is Professor of Practice at Deakin University where she teaches a unit on Contemporary International Legal Challenges. She is widely published in areas including women & law, technology & law and reforming justice systems. Her current PhD candidature is on Transnational Feminisms and the Human Trafficking Dilemma.

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