International Advocate Volume 1 Issue 4 by ANU International Law Society

International Advocate NOVEMBER 2012 VOLUME 1 ISSUE 4

Israel and Iran

From Aggressive Rhetoric to Military Confrontation?

FEATURE ARTICLE BY CLÃ&#x2030;MENT THERME

THE INTERNATIONAL ADVOCATE 1 ANU International Law Society

The International Advocate

is published by the ANU International Law Society with the proud support of the International Law Students Association. Publications Director Andrew Swanson Publications Team Cheng Ho, Rui Lam, Nishadee Perera Cover Photography Ricardo Villar Graphic Design Josefin Dahlerus

4 8

Israel and Iran

Aggressive Rhetoric or Military Confrontation

Falling through the Gaps The Palestinian Refugees of Lebanon

The opinions expressed in the articles are those of the contributors and do not necessarily reflect those of the ANU International Law Society, its partners or The Australian National University.

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Primacy in Contemporary International Law-Making

International Law

President Katelyn Ewart Vice President Carolyn Skorupa Finance Director Anirudh Devanathan Careers Director Mallory Wankel Events Director Chalani De Silva Education Director Kate Edney Publications Director Andrew Swanson Competitions Director Aleks Sladojevic, Kerin Callard (Co-Director) Committee Members Jedda Elliot, Sarah Fledberg, Cheng Ho, Emily Rose-Horn, Rui Lam, Nishadee Perera, Stephen Priest, Rebecca Williams, Claire Wilson 2

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Program Review

Course Review

SUBMISSIONS from academics, legal practicioners, and students are always welcome. Please submit essays, photos and ideas to anu.international.law@gmail.com. THE INTERNATIONAL ADVOCATE

Israel and Iran From Aggressive Rhetoric to Military Confrontation? By CLÉMENT THERME

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Islamic revolution. To justify their support of Assad’s regime, Iran used once again the rhetorical rejection of the existence of the Israeli state. According to the Iranian official diplomatic discourse, Syria is confronted with military and political opposition because the Assad regime belongs to the ‘axis of resistance’ against Israel together with the Lebanese Hezbollah movement and the Islamic Republic of Iran. This Iranian will to bolster the Assad regime could be best explained by taking into account the antiZionism criteria defining Iranian regional policy after 1979: Iran refused to lose its main regional ally, which is at the same time one of the main opponents of the Israeli regime in the Middle East. The new Middle East that is emerging, following the birth of the Arab spring in 2011, has inherited not only the geopolitical tensions between Israel and Iran but also the growing confessional divide between Shia and Sunni populations. These continuities appeared clearly in the Syrian civil war opposing a pro-Shia axis to a pro-Sunni one. The proShia axis includes Lebanese Hezbollah, Iran and the alaouite regime which is

rise to power of Islamist movements in Egypt and potentially in Syria throughout constructive diplomacy with the emerging new political elite. Nevertheless, from Tel Aviv’s point of view the main regional threat remains, namely the Islamic Republic of Iran so-called ‘existential threat’ to Israeli state existence. This perceived threat from Iran seems overstated given Israeli military superiority on Iran.1 Despite this asymmetrical military relationship, there is competition between Tel Aviv and Tehran for regional hegemony in the Middle East. It is in this geopolitical framework that one has to analyse the last series of war rhetoric between the two states and the recurrent mutual calls for destruction emanating from the Jewish PHOTO: ROBERT FORNAL

The war of words between the Islamic Republic of Iran and Israel is in itself a danger for the stability of the already volatile security situation of the Middle East area. This rhetorical confrontation between the two states dates back to the Islamic revolution of 1978-79. The founder of the Islamic Republic, Ayatollah Khomeini, was a staunch adversary of the Israeli state which he labelled as the ‘Zionist entity’. Given his lasting ideological influence on Iranian policy more than 33 years after the revolution, one has to consider his writings to understand today’s Iranian stance regarding the Israeli-Palestinian conflict. Indeed, antiZionism is still one of the main criteria determining Iran’s place among nations. In the face of the Syrian popular uprising which started during the spring of 2011, Tehran has had to implement a ‘double standard’ discourse regarding what the Islamic Republic labelled as the ‘Islamic awakening’ (bedar-e eslami), in other words, the so-called Arab spring. Tehran excluded the Syrian revolutionary process from its global discourse on the Arab revolutions, which it considered to be aftershocks of the victory of the 1979’s

supported by Russia and China. The proSunni alliance is composed of the Syrian Muslim brotherhood, Turkey, the new Egyptian regime, Qatar and backed by most of the Western democracies. While supporting Syrian opponents, Western states pursue two main objectives: firstly western states embrace the regional democratic movement opposing most of the Arab autocratic regimes (with the notable exception of Bahrain’s monarchy); secondly, western diplomacies aim to weaken the Islamic Republic of Iran’s regional role and, at the same time, undermine its anti-Israeli Middle Eastern diplomacy. On the whole, the U.S. and its European allies support the Israeli security agenda which could be preoccupied by the

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PHOTO: REINHALD KIRCHNER

and the Islamic state against each other. In my view, today’s Iranian-Israeli rivalry for regional hegemony remains essentially grounded on ideological tensions between the two political entities and not on cultural factors. The anti-Israeli feeling among the Iranian population is not as widespread as the anti-Arab feelings and, on the other side, Israel’s main security challenges are not directly linked with the Islamic Republic of Iran but to its ability to solve the Palestinian question. Indeed, following the geopolitical evolution of the Arab spring, the Hamas movement took its distance with its traditional regional supporters, namely Iran and Syria, and has been looking for new allies, mainly the Gulf petromonarchies. The absence of Hamas representatives from the summit of non-aligned movement held in Tehran on 26-31 August 2012 and the presence of the president of the Palestinian Authority is the last reminder of these shifting geopolitical realities. Therefore, the main ideological challenge in the Israeli neighbourhood appears to emanate from the rise of the Muslim brotherhood political movements as a result of the outbreak of the Arab spring. The Israeli war rhetoric against the Islamic Republic of Iran should be interpreted as a way to pressure the U.S. and its European allies to strengthen the economic sanctions regime targeting the Iranian nuclear programme. Israel’s diplomatic strategy is largely successful given the ambiguity of western sanctions against Iran: should economic sanctions aim to contain the nuclear programme or are they designed for regime change purposes, as the nuclear programme has become the regime’s raison d’être over recent years? From the 6

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Israeli authorities’ point of view, crippling sanctions are needed in order to limit Iranian nuclear progress and to confront the ideological threat emanating from the Islamic Republic’s anti-Zionist discourse. Moreover, sanctions policies have to be reinforced by a credible military threat from both Israel and the U.S. This confrontational strategy could endanger Middle East stability by provoking a new conflict in a turbulent area. Indeed, political dialogue remains the best western policy option to solve the Iranian nuclear issue. The alarming discourse regarding the Iranian nuclear programme is also a way for Tel Aviv to influence the American election process. Neither Barack Obama nor Mitt Romney could appear as ‘weak’ in confronting the Iranian nuclear challenge. Even if this rhetorical war of words between Tehran and Tel Aviv could be a diplomatic bluff between two regional rivals in search of legitimacy, there is a risk that this diplomatic rhetorical will escalate into an open military conflict. After alerting the world to the imminence of an Iranian nuclear threat since the end of the 1980s, it is possible that the Israeli leadership, at one point, decides to act according to his diplomatic rhetoric. This perspective is real given that the role of the Israeli security services in assassinating Iranian scientists linked to the national nuclear programme and in the numerous cyber-attacks against Iranian nuclear installations. Until now, the rise of tensions between these two ideological regional rivals has not been a cause for an outbreak of a military conflict. In this regard, on the one hand, the defensive attitude of American diplomacy’s strategy implemented by the Obama Administration has been able to contain

the rise of tensions between Iran and Israel. On the other hand, the ideological divide between the Islamic republic of Iran anti-Zionist state identity and Israeli iranophobia2 remains the main factor pushing the two countries towards open military conflict. Until now, the aggressive rhetoric between the two states did not provoke an Israeli military intervention against Iranian nuclear installations. But a question is still unanswered: could Israel attack Iran without American military support? For both political and technical reasons, the response to this question will largely determine the outcome of the Israeli-Iranian confrontation. CLÉMENT THERME is an Associate Fellow at the Centre d’analyse et d’intervention sociologiques at the School for Advanced Studies in the Social Sciences (EHESS) in Paris. He is the author of a book entitled Les relations entre Téhéran et Moscou depuis 1979 (Iranian-Russian relations since 1979) published by the French University Press (PUF) in September 2012.

1. Islam Qaem, Why we should not worry about Iran (22 August 2012) <http://www. opendemocracy.net/islam-qasem/whywe-should-not-worry-about-iran?utm_ medium=referral&utm_source=pulsenews>. 2. Haggai Ram, Iranophobia: The Logic of an Israeli Obsession (Standford University Press, 2009).

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Falling through the Gaps The Palestinian Refugees of Lebanon By CORINNE SHALALA

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to concerns that UNCHR involvement might result in a decrease of international support for UNRWA and for fear of weakening the ‘right of return.’”2 Further, regional tools such as the Arab League’s ‘Casablanca Protocol,’ which outlines the treatment of Palestinian refugees, is weak and lacks enforceability which has resulted in varying standards of treatment for Palestinian refugees dependent on which host state they reside in. Lebanon’s treatment of the Palestinian refugees has led to it being described as the “most inhospitable country of refuge for Palestinians.”3 The situation of Palestinian refugees in Lebanon is distinct from other host country refugees because Lebanese legislation is aimed at the “marginalisation of Palestinian refugees in order to prevent their integration into the Lebanese social and economic fabric.”4 In effect, Palestinian refugees are treated as foreigners, despite the fact that many Palestinians are born in Lebanon. A key factor in classifying Palestinian refugees as foreigners in Lebanon lies in the belief of the government that permanent

PHOTO: SILVIO ARCANGELI

The Palestinian refugee situation is a complicated issue and the status of Palestinians under international law and their socio-economic rights has been the subject of much debate since the 1948 Arab–Israeli war. Today, Lebanon hosts approximately 10% of registered Palestinian refugees, while the majority of Palestinian refugees reside in Jordan and Syria. The United Nations Refugee Work Relief Agency for Palestinian refugees in the Near East (UNRWA) is a UN body initially created in 1948 by UN resolution1 to provide crisis emergency services. However, over the years it has shifted its focus from a relief role, to a more comprehensive social development role for Palestinian refugees that reside in camps operated by UNRWA. UNRWA works in partnership with host country governments, such as Lebanon’s, which are plagued with political problems. Lebanon has not ratified the protectionary UN Refugee Convention and Protocol.Arab countries seem reluctant to ratify the Refugee Convention “…due

resettlement would disturb the balance of social and religious diversity in Lebanon. While studying Arabic at the American University of Beirut during our Australian winter, I assisted at a community children’s centre in the Shatila camp in Southern Beirut with other students, which is the site of one of the worst massacres of Palestinian refugees during the Lebanese civil war. Described as “one of the better camps,” by a Palestinian community leader, the lack of services provided to the Palestinian refugees was clearly evident. The entry to Shatila is not manned by the Lebanese army like other camps, but rather at entry, visitors are greeted with a strong stench of sewage and a muddy grass area frequented with children and filled with rubbish. The buildings resemble a shanty town, a far cry away from the rebuilt

downtown Beirut that is re-establishing itself as the “Paris of the Middle East”. The community children’s centre at which I volunteered bare, under-resourced and filled with children. I met local volunteers who were born in Lebanon, whose parents were born in Lebanon and yet were still treated as foreigners with limited legal rights. In the area of education, Palestinians are restricted from public Lebanese schools. In the labour force they are denoted as foreigners and require a work permit, which are difficult to obtain. In the area of health, Palestinian refugees have no access to government hospitals or medical services.5 The lack of international and domestic protection and political responsibility of socioeconomic rights of Palestinian refugees has created an THE INTERNATIONAL ADVOCATE

over reliance on UNRWA and NonGovernment organisations to fill in these gaps. While the right to return for Palestinian refugees continues to be a pending political issue, host nation governments such as Lebanon’s need to take a more proactive role with Palestinian refugee communities. Already overwhelmed with its own internal political and social problems, the Lebanese government needs to be assisted by the international community in this unique refugee task, helping UNRWA to prevent Palestinian refugees falling through the gaps of international law. CORINNE SHALALA is a recent graduate of UNSW Law who spent several months studying and travelling in Lebanon this year. These views reflect a combination of her personal experiences and recent studies. 1. Assistance to Palestine Refugees, GA res 302 (IV), UN GAOR, Ad Hoc Pol. Comm, 273rd plen mtg, Agenda Item 18, Un Doc A/RES/302(IV) (8 December 1949). 2. Asem Khalil, ‘Socio-economic rights of Palestinian refugees in Arab countries’ (2011) 23(4) International Journal of Refugee Law 680, 685. 3. Guy Goodwin-Gill and Susan M Akram, ‘United States Department of Justice Executive Office for Immigration Review Board of Immigration Appeals, Brief: Amicus Curiae’ (2000-2001) 11(1) The Palestinian Yearbook of International Law 185, 224. 4. Michael Dumper, The Future for Palestinian Refugees: toward equity and peace (Lynne Rienner, 1st ed, 2007) 88. 5. Jaber Suleiman, ‘Marginalised Community: The case of Palestinian refugees in Lebanon’ (Research Report, Development Research Centre on Migration, Globalisation and Poverty, University of Sussex, 2006) 20.

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By ARISHA ARIF and MONICA PATON

Learn-2-Moot As a student enrolled in my first international law course, the Learn-2Moot program was an excellent extracurricular activity. The program was set up so that we were eased into the idea of speaking in front of a panel of judges. This supportive and non-threatening aspect is probably the program’s biggest asset. The program was broken up into a learning component and a mooting component. First we learnt about the background of mooting and the law that we would be required to know. This was a great refresher for our coursework, but it would also help participants who perhaps had not done (or could not remember) international law. We also went through general tips on public speaking, before getting into the mooting rounds. The best part about the mooting rounds, and the most important thing to highlight, is that it was fun and relatively undemanding. Absent was the highschool-debating manner (read: raised eye-brows and z-snaps) and stress of competitive rounds. If people are

looking for a low commitment way to try out mooting this is definitely the best option. The judges were very supportive and understanding, as were the other teams. Unfortunately, the mooting rounds were little unsatisfying, as most people pulled out due to assessment. I’m sure the program is simply finding its feet, and hopefully the coordinators next year will be able to prevent this problem. We do wish that program was a little longer, or maybe there was an option of a competition round. This may have also given people an incentive to participate. Overall, this program was fantastic. Even if the program simply taught participants that mooting was not for them, the review of earlier course materials and exposure to an alternative means of legal argument is fantastic in and of itself. As a team, we are proud that we did not pull out. Now that we have mooted once, we would do it again. We would encourage anyone who has not mooted, whether they have done international law or not, to pluck up that courage, and give it a go!

ARISHA and MONICA are both studying for a Bachelor of Arts (International Relations) and Bachelor of Laws at the Australian National University. THE INTERNATIONAL ADVOCATE

Primacy of Contemporary International Law-Making By JOHN FARRELL

communication of the proposed law and notification of it to the international legal system.11 III. VALIDITY OF THE SYSTEM AS A LAWMAKING PROCESS

A. What is a lawmaking process? What are laws?

From ancient times when ‘princes or chiefs, had relations with each other for war or in peace’, to the times following the ‘Peace of Westphalia … and the emergence of the secular state’, there has existed a law of nations – generally accepted or agreed upon rules outlining conduct between nations.1 However, the international legal system has long faced uncertainty about its legitimacy as a legal system.2 ‘Many serious students of the law … agree to talk about international law as … a sort of quasi-law or near-law’.3 Furthermore, commitment to the sovereignty and autonomy of states, an uncoordinated approach to development of the system, and the lack of accountability of states, has created doubts about the traditional legal system’s ability to respond to the most significant modern international legal issues. This essay discusses whether the contemporary system of international law outlined by Jonathan Charney, created through multilateral forums and binding on all states, is a law-making process that produces laws.4 It discusses the advantages and disadvantages of the traditional and contemporary systems of international law in dealing with issues of global concern. Finally, it indicates that what Charney 12

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describes as a law-making process should be recognised for its contemporary primacy as a source of international law by international law theorists. II. THE SYSTEM IDENTIFIED BY CHARNEY

The basis of the contemporary lawmaking process outlined by Charney is the expanded role of multilateral forums in ‘the creation and shaping of contemporary international law’.5 Charney believes that the ‘products of multilateral forums substantially advance and formalise the international law-making process’,6 in producing universally binding laws. Under this process a ‘clearly phrased and strongly endorsed declaration at a nearuniversal diplomatic forum’ may give rise to the establishment of new international law.7 Factors which Charney indicates are crucial to acknowledgment of agreements at recognised multilateral forums as general international law include: reasonable notice and clear communication to ‘all states and other interested parties’,8 that the matter under consideration applies to ‘a refinement, codification, crystallisation or progressive development of international law’;9 consensus or agreement by a significant majority of forum participants; the nature, timing and/or relevance the of objections or objectors;10 and, written

B. Is What Charney Describes a LawMaking Process? Does it Produce ‘Laws’?

The system of contemporary general international law-making outlined by Charney is close to positivist theories on what makes a legal system. With the ability of the international community to command performance of certain

PHOTO: RICK LECHE

I. INTRODUCTION

Early theories on what legal systems or law-making processes were, focused on the command theory.12 John Austin argued that laws are the commands or rules issued by a sovereign.13 For Austin, the legal system consisted of commands, backed by ‘the threat of imposing an evil in the form of a sanction’, that were habitually obeyed by the majority of society, but not by the sovereign.14 Another positivist approach was taken by HLA Hart who argued that ‘fundamental accepted rules specifying the essential lawmaking procedures’,15 (secondary rules) are the ‘key to the science of jurisprudence’.16 The conditions

for a legal system or process to exist are the presence of primary rules of obligation that are generally obeyed, complemented by secondary rules of recognition, change and adjudication.17 On this basis Hart ‘develops his concept of law as the union of primary and secondary rules’.18 In contrast, natural law theorists such and Ronald Dworkin and Lon Fuller argue that what makes the law is not the application of commands or rules handed down but rather interpretation of the underlying institutional history of the legal system and the principles or morals of the society.19

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obligations to the whole community, even objectors, an argument could be made that, by using Austin’s theory, what Charney describes is a law-making process. The system described by Charney is not consistent with the natural law theories of proponents such as Dworkin and Fuller.20 The underlying institutional history of the international legal system is very weak and principles or morals of the society are difficult to define given the vast range of cultures, beliefs and practices of the diverse nations of the world. In the context of the natural law theories, the rule based approach referred to by Charney would not be considered to be a valid lawmaking process which produces laws. Hart argued that the traditional system of international law was not a legal system but resembled a primitive social system because of a lack of secondary laws.21 He disputed the idea that pacta sant servanda was a rule of recognition because not all obligations in international law stem from treaties.22 He also disputed that the idea that ‘states should behave as they customarily behave’ was a rule of recognition, instead equating this to repetition that states abide by a set of rules.23 However, Hart hypothesised that if multilateral treaties could be binding on non-parties or objectors, an argument could be made that such treaties would be similar to ‘legislative enactments and international law would have distinct criteria of validity for its rules’.24 The system identified by Charney is highly analogous to the theory of Hart as the system would move ‘nearer in structure to a municipal system’ and therefore can be considered to be a law-making process capable of making ‘laws.’25 14

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V. INTERNATIONAL LAW RESPONDING TO GLOBAL CONTEMPORARY CONCERNS

A. Traditional Sources of International Law: Advantages

Over the last century or more the majority of international law has resulted from treaties or customary international law. 1. Treaties

The main advantage of treaties stems from the ‘volunteerist approach’ to their development.26 As Louis Henkin has stated ‘[c]itizens who join in making law, generally approve of the law they have made, and have incentives to maintain it’.27 When states enter into treaties they remove certain liberties to gain some benefit. This creates ‘some sense of citizenship (if not morality)’ which encourages states to implement their treaty obligations for their own benefit as well as the benefit of other states.28 2. Customary International Law (CIL)

CIL was the most prominent source of international law until the mid-20th Century before the greater prevalence of international treaties following WWII. Although the prominence of treaties in creating new law and codifying CIL has increased, CIL remains relevant for its ability to determine the law for states not bound by relevant treaties, identifying the law in new areas, and for its ability to rapidly and dynamically evolve and develop international law.29 B. Traditional Sources of International Law: Disadvantages

The traditional international legal system outlined above has been criticised for being unable to quickly and effectively tend to the technical and critical difficulties or

issues that arise under an increasingly globalised and interdependent world.30 Charney heavily criticises the traditional approach for being inept at meeting ‘modern demands that the international legal system deal with technical issues requiring careful coordination’.31 1. Sovereignty and Autonomy of States

Henkin stated that ‘the international system has made a virtue of the independence of constituent States’.32 The underlying principles of sovereignty and autonomy have developed a largely volunteerist mechanism for establishing international law. Treaties, by their contractual nature, require the voluntary consent of states to create international obligations or laws.33 CIL also requires a form of indirect consent. For CIL to exist it must be the product of state practice and opinio juris.34 ‘Not only must the acts concerned amount to a settled practice, but they must also … be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’.35 While a need for consent may produce a sense of citizenship or morality to meet obligations,36 it can mean that the best or most effective approach for dealing with issues that ‘threaten the international community as a whole’,37 may be disobeyed, foregone or negotiated away, in the political, economic, religious or philosophical interests of the contracting states. This stout recognition of autonomy risks potentially catastrophic consequences by allowing objecting and free-riding states to stunt the development of the international legal system.38

2. Uncoordinated Approach

Stemming from the volunteerist nature of the traditional international law system is a tendency to move slowly and immethodically. As previously stated, the world is far more globalised and independent than in the past when ‘no state could take actions that would threaten the international community as a whole’.39 Today issues such as threats to the environment, international terrorism and crime, the intricately connected global financial system, and nuclear weaponry are issues that threaten the entire international community and require more than an uncoordinated approach. The early or traditional approach of bilateral treaties and CIL are useful for the relations between nations one-on-one, but can be slow, lacking direction and ineffective at dealing with issues that require greater coordination and direction to be dealt with successfully. 3. Lack of Accountability of States

From the infancy of international law, the system has struggled with enforceability and accountability.40 The volunteerist nature of traditional international law gives states the opportunity to be outside of the law, often choosing which laws they wish to be bound by, except in cases of customary norms of jus cogens.41 This has allowed ‘recalcitrant state[s] … to act as spoiler[s] for the entire international community’,42 to be ‘free-riders on the system’ and to encourage non-participation by other states.43 This weakens the ability of the system to implement law in response to global concerns where powerful states’ political, economic, and/or philosophical interests are best served by inaction or a different action. THE INTERNATIONAL ADVOCATE

PHOTO: PETER GRONEMANN

criticisms. The traditional system is based on a state’s consent which creates a nearmoral obligation to fulfil obligations that they have agreed to, as it is in their interest. By binding states which object, there exists a greatly diminished desire on their behalf to fulfil the obligations, because by objecting they have shown that another approach is in their best-interest. This leaves the system more liable to the law being disobeyed by objecting states and thus, its ability to effectively deal with major issues may be undermined. 2. Removing Sovereignty C. Contemporary General International Law-Making: Advantages 1. Binding on All States

According to Charney, the system of contemporary general international lawmaking has enabled the international community to ‘establish international law that will bind every state without exception’,44 and to ‘attend to universal problems that increasingly require solutions in international law’,45 more effectively than the traditional international legal system. Enabling law to be created without the agreement or consent of every nation will potentially remove the issues of sovereignty and autonomy, an uncoordinated approach to developing international law, and a lack of accountability of states to the international community as a whole. Under this system, consent is not required by every nation but by an overwhelming majority allowing the solutions to the major issues of the international community not to be ‘thwarted by the objections of a few obstinate states’.46 16

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2. Law Clearly Identifiable

The system outlined by Charney also allows greater transparency, clarity and widespread participation in the development of international law.47 This process is particularly necessary in effectively dealing with the ‘technical issues requiring careful consideration’ arising in the newly globalised and interdependent world.48 The uncertainties and uncoordinated approaches of the traditional system are replaced with an open, deliberative and quasi-legislative approach capable of pervasive law. D. Contemporary General International Law-Making: Disadvantages 1. Enforceability?

The traditional international legal system has long faced questions of its enforceability.49 As stated by Louis Henkin, ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’.50 However, the system outlined by Charney is more susceptible to such

As Charney acknowledges ‘few, if any, states favour a world government that would dictate uniform behaviour for all’.51 The significant social, cultural, religious and political differences among the many nations of the world requires a degree of sovereignty for nations to determine what is best for ‘its own social priorities’.52 The imposition of laws against the will of some nations, could lead to misuse for the benefit of the ideological, political or economic advantage of powerful states. E. Contemporary Primacy of the System as a Source of International Law

The contemporary system of general international law- making outlined by Charney enables the international community to ‘attend to the universal problems’ of global concern,53 and should be recognised for its contemporary primacy in the international law-making process. In today’s intricately connected and interdependent international society, development of the international law cannot be thwarted by uncooperative, objecting states due to the reliance on an out-dated traditional system that

relies too heavily on volunteerism and universal consent for progress. However, this system is still ‘newly evolving’,54 and requires further development, definition and maintenance to ensure that it does not become open to misuse by powerful states, to ensure that objecting states bound to the law by this process are not simply able to disobey without real repercussions, and to ensure that it does not stifle a socially, and culturally diverse world. V. CONCLUSION

From the beginning of its development, the international legal system has been criticised as a form of ‘near-law’.55 It was compared by Hart to the systems of primitive societies consisting only of primary rules. The development and establishment of general international law by multilateral forums more clearly specifies secondary rules, and on this basis, the process outlined by Charney moves nearer to what Hart considered to be a law-making process capable of making ‘laws’.56 The universally binding obligations and system of greater transparency, clarity and widespread participation inherent in this method of international law-making allows the international community to more appropriately and convincingly respond to issues of global concern than through the traditional approach of treatymaking and customary international law. The contemporary general international law-making system in the development of international law defined by Charney should be recognised for its contemporary primacy in dealing with ‘some of the gravest threats to the earth and humankind’,57 in the current globalised world and for its ability to prevent the spoiling of the THE INTERNATIONAL ADVOCATE

development of international law in dealing with such significant issues by ‘a few obstinate states’.58 JOHN FARRELL is studying a combined degree of Bachelor of Laws and Bachelor of Economics at the Australian National University 1. Louis Henkin, ‘International law: Politics, Values and Functions’ (1989) 216 Recueil des cours 9, 25. 2. See, eg, Mehrdad Payandeh, ‘The Concept of International law in the Jurisprudence of H.L.A Hart’ (2010) 21(4) European Journal of International Law 967; Anthony D’Amato, ‘Is International Law Really Law?’ (1984) Northwestern University Law Review 1293. 3. D’Amato, above n 2, 1293. 4. Jonathan I Charney, ‘Universal International Law’ (1993) 87 American Journal of International Law 529. See also Ted L Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’ (1985) 26 Harvard International Law Journal 457. 5. Charney, above n 4, 543. 6. Ibid 547. 7. Ibid 546. 8. Ibid 545. 9. Ibid 544. 10. Ibid 544-5. 11. Ibid 547. 12. See Payandeh, above n 2, 969-70; Lon Fuller, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ (1958) 71 Harvard Law Review 630, 633. 13. Payandeh, above n 2, 969-70 citing Wilfrid E Rumble (ed), Austin: The Province of Jurisprudence Determined (Cambridge University Press, 1995). 14. Payandeh, above n 2, 969-70 quoting Rumble, above n 13, 21-2. 15. H L A Hart, ‘Positivism and the Separation of Law and Morals’ (1957) 71 Harvard Law. Review 593, 603. 16. Ibid. 17. H L A Hart, The Concept of Law (Oxford University Press, 2nd ed, 1994) 100-23. 18. Payandeh, above n 2, 974 citing Hart, above n 17, 112-7. 19. See Ronald A Dworkin, ‘Natural Law Revisited’ (1982) 34 University of Florida Law Review 165, 165-88; Fuller, above n 12, 630-72.

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20. See Dworkin, above n 19; Fuller, above n 12, 630-72. 21. Hart, above n 17, ch 10. 22. Ibid 233-4; see also Payandeh, above n 2, 977. 23. Hart, The Concept of Law, above n 17, 236; see also Payandeh, above n 2, 977. 24. Hart, The Concept of Law, above n 17, 236. 25. Ibid. 26. Payandeh, above n 2, 971. 27. Henkin, above n 1, 71. 28. Ibid. 29. Tullio Treves, Oxford University Press, Max Planck Encyclopedia of International Law (Online) (Novemeber 2006) Customary International Law, < http://www.mpepil.com/ ViewPdf/epil/entries/law-9780199231690-e1393. pdf ?stylesheet=EPIL-display-full.xsl>, 18. 30. Charney, above n 4, 529-51. 31. Ibid 550. 32. Henkin, above n 1, 66. 33. Vienna Convention on the Law of Treaties, opened for signature 23 may 19669, 1155 UNTS 331 (entered into force 27 January 1980) (‘VCLT’). 34. North Sea Continental Shelf (Federal Republic of Germany v Denmark) ( Judgment) [1969] ICJ Rep 3, 44. 35. Ibid. 36. Henkin, above n 1, 71. 37. Charney, above n 4, 530. 38. Ibid. 39. Ibid. 40. See, eg, Payandeh, above n 2; D’Amato, above n 2. 41. VCLT art 53. 42. Charney, above n, 4, 529. 43. Ibid 530. 44. Ibid 551. 45. Ibid. 46. Ibid. 47. Ibid 550-1. 48. Ibid 550. 49. D’Amato, above n 4, 1293-301. 50. Ibid, 1294, quoting Louis Henkin, How Nations Behave: Law and Foreign Policy (Columbia University Press, 2nd ed, 1979). 51. Charney, above n, 4, 530. 52. Ibid. 53. Ibid 551. 54. Ibid. 55. D’Amato, above n 4, 1293. 56. Hart, The Concept of Law, above n 17, 236. 57. Charney, above n, 4, 551. 58. Ibid.

By GUO CHENG HO

International Law International Law is probably one of the most highly anticipated compulsory law courses for those aspiring International Lawyers and IR enthusiasts. The content covered in the weekly lectures is often interesting enough to prevent you from slipping into your usual law-induced 2-hour coma, while the tutorial problems are helpfully designed to consolidate your understanding of the key issues. The lecturers, Kevin Boreham and Don Anton, understand how ambiguous the content can be and will often take time out to explain some of the intricacies of international law. Perhaps best of all, the course is designed around two key assessments (a 40% Research Essay and a 60% Final) to ensure that the rather unmotivated

law students only really have to worry about their international law twice during the semester! However, the biggest pro in this case may also be the worst con! The fact that there is only two assessments induces a lot of panic and hysteria when completing the essay/exam because you know that a bad mark in either one cannot be mitigated by other assessments. This is especially true for those who tend to count on the usual 10% ‘attendance participation’ as easy marks in other courses. Also, the fact that tutorial attendance is not compulsory in this course also tends to be a negative as certain tutes have very low attendance which sometimes inhibits the quality of the discussion.

Coping Strategies 1

Go to the ILS Peer-led tutorials. To help your transition into international law, the ILS runs a weekly peer-led tutorial, outside of your normal lectures and tutes, which reviews the content covered that week and gives you an opportunity to ask questions outside of class time. These tutorials are run by immensely knowledgeable and friendly students who scored well in international law themselves. A valuable resource if

you are struggling to understand the basic principles of IL!

Attend the Tutorials, even if you haven’t done any of the readings! Tutorials are very helpful in this course as they highlight the key issues that you MUST have an understanding of if you want to pass the course. Don’t worry if you haven’t done the readings, the tutor would most likely have anticipated your

laziness and will quickly go over the fundamentals so that you can still follow the discussion.

Keep up to date with lectures. A generally useful piece of advice applicable to all law courses really. Actually listening to the lectures punctually each week means that you won’t have to cover almost 20 hours worth of IL lectures in the week before your 60% final.

THE INTERNATIONAL ADVOCATE

AUSTRALIAN NATIONAL UNIVERSITY

International Law Society www.anuils.com

THE INTERNATIONAL ADVOCATE