International Advocate Volume 3 Issue 3

INTERNATIONALADVOCATE October 2014 Volume 3 Issue 3

Feature Article

The Future of International Criminal Law

By Serge Brammertz

Editor Katelyn Ewart Publications Team Sarah Barrie, Nina Bokil, Wing Yi Kelly Chan, Elizabeth James, Eleanor Lau, Catherine Neidhardt, Suhi Sivanathan, Jacky Song, Elisabeth Storor, Jessica Wat, Samantha Woodforde, Ally Zhu President Jacqueline Wilmott Vice President Megan Lingafelter Careers Director Vacant Competitions Director Edmund Bao Education Director Simone Burke Events Director Sami Hook Finance Director Ramita Shankar Publications Director Katelyn Ewart

The International Advocate is published by the ANU International Law Society with the proud support of the International Law Student’s Association 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.

ANU International Law Society Student Facilities Building 17a Australian National University Canberra ACT 0200 Australia Submissions from students, legal practitioners, and academics are always welcome. Please submit essay, photos and ideas to ils@anu.edu.au Cover image by Adrien Dubuisson www.flickr.com/photos/communiter

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The Future of International Criminal Law Serge Brammertz

11

Statehood of Submerged States in a PeopleCentered Era

21

In Conversation with Kim Rubenstein

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Changes to LAWS2250 - Part Two

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World News

Tong Zhang

Megan Lingafelter

Jacqueline Wilmott

Elisabeth Storor

Editor’s Welcome Welcome to the final issue of the Advocate for 2014.

We are fortunate to feature the insights of Serge Brammertz, Chief Prosecutor for the ICTY. Mr Brammertz recently gave a talk at the ANU organised by the Centre for International and Public Law (which you can read more about on page 21).

I’m also delighted to publish the winning essay of the Advocate Essay Competition by Tong Zhang. The runner-up essay is by Sherwood Du, and will be featured in the first issue of 2015. Also in this issue we chat to Professor Kim Rubenstein with Megan Lingafelter and Dr Hitoshi Nasu with Jacqueline Wilmott, and are kept abreast of more world news with Elisabeth Storor.

Katelyn Ewart

Become a Committee Member in 2015 The ILS is looking for enthusiastic people to join our Committee for 2015. There are no elections for committee members, and everyone is welcome.

Joining the ILS Committee is a great way to meet like minded people and give back to the community at ANU. We value teamwork and pride ourselves on being inclusive, approachable and professional.

The International Advocate is just one of ILS’ activities, and we are particularly keen for committee members to join our events, competitions, career and education portfolios.

For more information, please email us at ils@anu.edu.au.

2015 ILS Executive elect. Left to right: Ramita Shankar (Finance Director), Simone Burke (Careers Director), Megan Lingafelter (President), Katelyn Ewart (Events Director), Alex Ferguson (Sponsorship Director), Elizabeth James (Vice-President). Not pictured: Elisabeth Storor (Publications Director), Stephanie Kim (Competitions Director), Madeleine Bowdern (Education Director).

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‘Back to Srebrenica’ Image credit: Adrien Dubuisson, www.flickr.com/photos/communiter

The Future of International Criminal Law Reflections from the Chief Prosecutor of the ICTY Serge Brammertz

What do you imagine the future of international justice will look like?

Let me start by saying that we shouldn’t be complacent that there will be a future for international justice. It is a relatively recent development historically, and we see even today the challenges to establishing accountability mechanisms where they are most needed. So, it is important that governments and civil society continue supporting international justice, to ensure that it does have a future.

The good news is that a lot has been achieved in the last two decades through the work of the ICTY, ICTR and hybrid tribunals such as the SCSL. This has culminated in the establishment of the ICC as the permanent international criminal court. And further developments are now underway in international justice that should generate continued support.

If we survey accountability initiatives today, the reality is that international justice is becoming increasingly nationalized. This is a very positive development. Our experience at the ICTY has also shown that justice is best INTERNATIONAL ADVOCATE | 5

served when it is delivered closer to the people who were affected, in national rather than international courts. And we’ve seen in countries like Sierra Leone and East Timor that international justice, when it is nationalized, can contribute to rebuilding the rule of law and the political order in post-conflict societies.

So, I think the future of international justice will look more national than it does today, with national courts – assisted as needed by the international community – taking more responsibility and undertaking the majority of prosecutions. The ICC will of course also play a key role as the court of last resort, but it won’t be expected to be the solution to every situation.

In other words, I think we will see international justice increasingly achieving exactly what the Rome Statute intends: national, regional and international courts complementing and supporting each other, with national and regional courts taking the lead.

What challenges does the ICC face?

Like any relatively new institution, the ICC has to deal with a number of challenges related to its strategies and operations. It recognizes this fact: the Office of the Prosecutor just recently issued a revised investigations strategy that reflects the lessons learned in the first decade of operations, as well as the lessons learned at other courts like the ICTY.

Image credit: European Parliament, www.flickr.com/photos/european_parliament

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Right now though, the most serious challenges are outside the Court.

The biggest has to be the problem of fugitives. Unfortunately, today at the ICC, 11 of 14 indictees whose arrests are sought are still at large. The fugitives include Sudan’s President Omar al-Bashir, who remains at large four years after he was charged with genocide. Many may not appreciate how serious this challenge is. External observers perceive that the international community is powerless or lacks the will to enforce the most fundamental international obligations. Such obvious impunity may well encourage future perpetrators. It certainly does not deter them.

Similarly, not all States are meeting their international obligations to cooperate with the ICC on issues like access to evidence. And the Rome Statute has not yet been universally ratified, which creates destructive perceptions that the ICC engages in selective justice.

At the ICTY we faced similar issues during our mandate. The lesson we learned was that international prosecutions are taking place in a realpolitik world. While the justice process has to be insulated from political interference, at the same time, we have to accept that politics is a factor that impacts our work. The solutions to problems of fugitives, or access to evidence, are also at the political level

between States. At the ICTY, the EU’s conditionality policies, which required the States of the former Yugoslavia to cooperate with the ICTY as a condition for EU membership negotiations, played a major role in ensuring the arrest of fugitives and State cooperation. The lesson is that if there is a clear political agenda by the international community for situations where accountability mechanisms are in place, then justice has a greater chance of success.

What challenges do prosecutors working for the ICC and/or ad hoc tribunals face?

Maybe the better question is what challenges don’t we face!

One of the biggest public misconceptions may be the ease of obtaining strong, legally valid evidence that crimes were committed and that individuals, particularly senior leaders, are criminally responsible. Some assume that because the violence and casualties are so notorious, evidence should be readily available. If only that were the case.

The reality is that we faced significant challenges investigating these crimes and gathering evidence. At the ICTY we commenced our investigations in JuneJuly 1994, but the conflict continued until December 1995. It should go INTERNATIONAL ADVOCATE | 7

without saying that conducting criminal investigations in a conflict-zone is very difficult. Our access to crime scenes and key witnesses was limited, which meant in some situations that the perpetrators of crimes were able to hide or destroy evidence. These problems persisted after the conflict ended. We had to negotiate with government authorities to access crime scenes and conduct interviews with witnesses, which sometimes meant negotiating with people who had been in power during the conflict and were potentially criminally responsible for the crimes.

Just as illustrations of these challenges, our prosecutions for the Srebrenica genocide have relied a great deal on the evidence from the mass graves. Yet we were not able to access the sites for a year after the crimes. In that time, the perpetrators destroyed evidence

and reburied the bodies, scattering the remains across many secondary mass graves. Finding the secondary mass graves was an incredible challenge.

But even though we finally found and exhumed them, the reburial operation had disrupted the crime scenes. This has complicated the evidence and created opportunities for the defence to challenge expert findings.

We also have to gather an immense amount of evidence covering a wide range of issues. To prove beyond a reasonable doubt individual criminal liability requires extensive evidence of the crimes themselves, how the crimes are linked together, command and control mechanisms used to commit the crimes, the knowledge of relevant actors, the broader political and military context in which the crimes occurred and the intent behind the

UN Peace keepers collecting bodies from Ahmici, Borsnia and Herzegovina in April 1993 Image credit: ICTY photos, www.flickr.com/photos/icty

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ICTY Principals, Prosecutor Serge Brammertz, President Theodor Meren and Registrar John Hocking Image credit: ICTY photos, www.flickr.com/photos/icty

actions of relevant individuals. Often, the testimonies of so-called “insider” witnesses will be important to establish all these linkages. We must find and then protect important witnesses, who may be bribed, threatened or even killed before they testify. We see today in The Hague that witness interference remains a problem even after 20 years.

How can lessons learned from the ICTY be applied to the situations in Libya and Syria?

The first and hardest lesson is that international justice alone will never end a conflict. There has to be a political solution first. The absence of a political settlement should not be masked behind “feel good” decisions creating accountability mechanisms or referring situations to the ICC. In a situation

like Syria, it is important to recognize that accountability mechanisms cannot replace negotiated political settlements through the Geneva process.

Second, I already mentioned that international justice is becoming increasingly nationalized. This shift from the international to the national has significant policy implications, as we’ve learned at the ICTY. A major component of our Completion Strategy was the transfer of investigations involving mid- and low-level suspects to the national courts in Serbia, Croatia and Bosnia and Herzegovina. The international community, including most notably the EU, supported this nationalization process through a clear political strategy that involved significant support to a range of domestic capacity-building efforts. One of the most remarkable innovations was INTERNATIONAL ADVOCATE | 9

ICTY building, the Hague, Netherlands.

Image credit: ICTY photos, www.flickr.com/photos/icty

the creation of the hybrid War Crimes Chamber in Bosnia and Herzegovina, which brought together international and Bosnian prosecutors, judges and staff. This mixed or hybrid court model has increasing relevance and should be carefully considered in the future, such as for any accountability mechanism in Syria.

Finally, the ultimate question for international justice is whether it helps to achieve a sustainable, lasting peace in States where the legal and political order has collapsed. Based on the ICTY’s experience in the former Yugoslavia, I believe that while prosecutions alone are not enough, they are a condition sine qua non. Reconciliation requires an unbiased historical view of what happened during conflicts. Prosecutions can provide the foundation for this process by establishing facts based on 10 | INTERNATIONAL ADVOCATE

the testimonies of countless witnesses and millions of pages of documents.

Justice actors then need to partner with peace-building activities to disseminate the facts that have been established. A problem today in Bosnia and Herzegovina is that the history books each community uses to teach its children reflect radically different interpretations of history, entrenching destructive narratives. So, the lesson from our experience is that together with prosecutions, education is decisive to promote reconciliation and to prevent future crimes. What has been established in the courtroom must be taught in the classroom.

Serge Brammertz is Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia.

Statehood of Submerged States in a PeopleCentered Era Winning Essay, Advocate Essay Competition Tong Zhang

Introduction Climate change and its effects have attracted increasing attention over the past few decades. The accumulating scientific evidence on the rise of sea level forces us to consider one of the most dramatic scenarios of climate change – that of island states submerging. Low-lying island states such as Maldives and Kiribati are predicted to be uninhabitable by the end of the twenty-first century.1 Besides the social-economic consequences for these states, this scenario also raises an unprecedented International legal issue – whether the loss of territory, exile of the population and exile of the government will bring a submerged state to its extinction.

This essay will first analyze Trindade J’s argument that International Law governing prerequisites of statehood is a normative system, which means International Law must reflect people’s aspirations. This essay will then examine how International Law’s strong presumption of state continuity has maintained statehoods in cases of belligerent occupation. This

essay argues that the presumption of state continuity will also apply to the submerged states scenario, subject only to the requirement that the loss of territory must be temporary. In the absence of an established test for temporality, this essay reverts back to the people-centered outlook and argues that the test for temporality is the will of the people. That is, as long as the population of a submerged state still aspire for the continuation of their statehood, the loss of the prerequisites of statehood must be deemed temporary, thus maintaining their statehood.

What Trindade J meant by the ‘normative system’ in relation to ‘prerequisites of statehood’ In the International Court of Justice (ICJ)’s advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo,2 the majority of ICJ advised that Kosovo’s unilateral declaration ofindependence from Serbia does not violate International Law. Among these judges, Trindade J handed down a separate opinion, which emphasized INTERNATIONAL ADVOCATE | 11

particularly on the “discrimination”, “loss of life” and “great suffering” of the Kosovo people under Serbian sovereignty.3 Trindade J said: “As to the classic prerequisites of statehood, gradually greater emphasis has shifted from the element of territory to that of the normative system.”4 Three questions then arise: What is meant

by International Law as a ‘normative system’? What developments in International Law led to the growing significance of its normative nature?

How does the normative nature of the International Law governing prerequisites of statehood affect its application? These questions will now be addressed.

International Law as a ‘normative system’ The definition of a normative system begins necessarily with defining what norms are. In his earlier work, Trindade identified the “substratum of legal

norms” in International Law as the “values, ethics and human aspirations”5 “shared by the international community as a whole”.6 In fact, Trindade sees these ethics and aspirations as the “material sources” of International Law,7 which stand above the formal sources of International Law iterated in Article 38(1) of the ICJ Statute.8 Trindade further criticizes the positivist outlook adopted by some, which focuses only on formal sources of International Law, with a tendency to render International Law “insensible to values” and “[unable] to fulfill social needs”.9 Thus, according to Trindade J, International Law as a normative system must constantly reflect the aspirations of human beings.

Growing emphasis on the normative element of human rights The human aspirations forming the material source of International Law

‘Newborn’ monument in Pristina, Kosovo.

Image credit: Charles Roffey, www.flickr.com/photos/charlesfred

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are subject to evolution. Trindade notes the developments in Human Rights Law and how they propelled the respect for people’s rights and well-being. He said, “[t]he major juridical revolution of contemporary legal thinking lies, in my view, in the advent and development of the International Law of Human Rights”.10This development, according to Trindade J in Kosovo Advisory Opinion, highlights the importance “of the care with the conditions of living of the “population”,11 their “material and moral well-being” and “social progress”.12 It follows that this increasing regard for the needs of people, being a prominent aspiration arising out of human conscience, must be duly reflected in contemporary construction of International Law. How the normative nature of IL influences the prerequisites of statehood Once it is established that International Law, owing to its normative nature, must respect the wellbeing of human beings, it follows that the prerequisites of statehood, being governed by International Law, must also reflect these concerns. The classic prerequisites of statehood are: (i) a defined territory, (ii) a permanent population, (iii) an effective government and (iv) the capacity to enter into relations.13 Trindade J criticizes the over-emphasis

Antonio Trindade, www.icj-cij.org

by expert writings on the territory element of statehood. He argued, “international legal doctrine, obsessed, throughout the twentieth century, with the ideas of… territorial integrity to the exclusion of others, was oblivious of the most precious constitutive element of statehood: the ‘population’”,14 their ‘needs and legitimate aspirations’.15 In Trindade J’s opinion, the “emphasis [of the assessment of statehood] has shifted from the status of territory to the needs and aspirations of people” due to “the current process of humanization”.16 This view led him to conclude that, although Serbia had control over the territory on which the Kosovo people lived, the victimization of the Kosovo people compels International Law to prioritize the Kosovo people’s need for emancipation over Serbia’s territorial integrity. Therefore, the declaration of independence is not only lawful, but entails a duty by the UN to secure Kosovo’s independence INTERNATIONAL ADVOCATE | 13

as a sovereign state.17Hence, by the ‘normative system’ in relation to ‘the prerequisites of statehood’, Trindade J is describing an international legal system that prioritizes the needs and aspirations of the population when deciding the existence or continuity of their statehood. This is pursuant to what Trindade J terms as “the peoplecentered outlook in contemporary International Law”.18

Whether the peoplecentered outlook means submerged states will maintain their legal status as sovereign states Presumption of state continuity in the belligerent occupation scenario We now turn to the question we started with: will a submerged state lose its statehood. The first thing to note in such an inquiry is that International Law holds ‘a strong presumption against the extinction of States once firmly established’.19 This presumption is unequivocally at work in cases of belligerent occupation.20 When occupied by another State, the government of the occupied state is often forced to reside in a foreign State.21 While in-exile, the government usually lacks effective control over its population, thus violating the effective government requirement of 14 | INTERNATIONAL ADVOCATE

statehood.22 For example, when Iraq invaded Kuwait in 1990, the Kuwait government fled to Saudi Arabia and set up a government in-exile. Despite the lack of an effective government however, the UN Security Council unanimously adopted a resolution calling upon all States “not to recognize the annexation [by Iraq]”,23which effectively sustained Kuwait’s statehood until its government resumed control.

The presumption of state continuity thus gives rise to the proposition that statehood is unaffected by the temporary absence of prerequisites of statehood.24 This presumption has been regarded by a number of imminent publicists such as Ziemele25 to be “a basic presumption of International Law supported by a number of norms of Customary International Law”.26Thus the presumption of state continuity should be regarded as International Law, if not by customary norms,27then by the teachings of the most highly qualified publicists.28 Application of the presumption of state continuity to submerged States The issue now is whether this presumption of state continuity, which effectively sustains the statehood of occupied states despite a lack of effective government, may also sustain the statehood of submerged states. I

Tuvalu. Image credit: Tomoaki INABA, www.flickr.com/photos/list4u/5685924064

argue that it may. My argument will proceed by demonstrating that: (1) the submergence of territory threatens all prerequisites of statehood; (2) Despite this, the presumption of state continuity still applies to submerged States, subject solely to the condition of ‘temporality’; (3) The meaning of ‘temporality’ must be determined according to people’s aspirations, in line with Trindade’s people-centered outlook.

What prerequisites of statehood will be at stake for submerged States?

It is widely acknowledged that submerged states may lose all prerequisites of statehood. Firstly, prima facie, the submergence of territory will violate the requirement of ‘a defined territory’. Secondly, because island

States may “become uninhabitable long before they physically disappear”,29 the loss of permanent population may provide the first signal that the entity no longer meets the criteria for statehood.30 Thirdly, given that the bulk of the population will reside in other States before a new territory is found, they will be “subject to the laws and jurisdiction of those [foreign] States” and over time, “the function of the government in-exile will wane.”31Hence Lauterpacht J’s remark that: “[w]ithout [territory] there can be no… effective government”.32 Lastly, government independence could also be questioned as the “government [in-exile] would be entirely dependent on the status the host state would be willing to grant it.33 Therefore, the total submergence of the territory may deprive a state of all prerequisites of statehood.

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‘Climate Change Effects in Island Nation of Kiribati’ Image credit: UN Photo, www.flickr.com/photos/un_photo

Whether presumption of state continuity applies to submerged states Some scholars maintain that, because the loss of all prerequisites of statehood is unprecedented, the presumption of state continuity cannot apply.

For example, Jared argues that the “presumption [of state continuity] tends to be applied to dramatic alteration of one or more factual criteria”, such as the loss of effective government in belligerent occupation scenarios, but “not to cases of their total loss”.34 However, this narrow reading of the presumption resembles the positivist approach criticized by Trindade as being “insensible to values”.35 It dwells on what the law is and how it has been applied in the past, but fails to appreciate why it was developed and therefore, how it ought to be applied.336 16 | INTERNATIONAL ADVOCATE

A review of the objective of the presumption of state continuity reveals that its operation will not necessarily be frustrated by an increased number of prerequisites at stake. As explored earlier, the presumption of state continuity is developed to reconcile the need for an “objective”37 set of prerequisites of statehood on the one hand and the need to act in the best interest of the people on the other. It allows a grace period for States to re-establish the preconditions of statehood it has been deprived of, such that their community is not interrupted prematurely. It follows that the determination of state extinction is not a quantitative exercise swayed by the mere number of prerequisites at stake. Rather, it is a qualitative exercise that sustains the statehood of a submerged state as long as its loss of territory, population and government is temporary.

The meaning of ‘temporality’ in line of people’s aspirations Thus we arrive at the crux of the issue, ultimately determinative of whether submerged States may maintain their statehood. That is, what ‘temporary’ means. For a submerged State, the time taken to obtain new territory, reconvene its population and re-establish effective and independent government may be very lengthy. During much of this time, the prospect of the state regaining these prerequisites of statehood may be extremely uncertain. The deeming of permanent loss of prerequisites is therefore a delicate practice, requiring International Law to juggle on the one hand the care not to assert extinction prematurely and on the other hand the need to come to terms with the reality when a state is truly extinct. The mere lapse of time is generally rejected as indicia for temporality. As Ziemele notes, it is “difficult to establish a fixed period given the variety of situations

and conduct of state concerned”.38 I argue that the appropriate test should be found in what Trindade regards as the ‘material source’ of International Law – the aspirations of the population.

As Dillard J said in the Western Sahara case, “it is for the people to determine the destiny of the territory and not the territory the destiny of the people”.39As long as the people still aspire to remain as a State, there is always the possibility that, through their collective effort, new sovereign land will be found and all prerequisites of statehood will be recovered. Indeed, this possibility is strong because, as Kalin maintains, “it is unlikely that small island States will readily relinquish their claims to statehood”.40 In fact, the international community has already witnessed efforts by submerging states including Maldives41 and Kirribati42 to acquire new sovereign land. Thus, the loss of prerequisites of statehood must be deemed ‘temporary’ for as long as the people remain dedicated to the

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continuation of their statehood. On the contrary, if people lose dedication to their statehood, the state will be truly extinct. An example is the migration of Icelanders in the mid 1870’s to Canada to escape a severe volcanic eruption.

Eventually, by the passage of time, the settlers consented unanimously to the integration with a Canadian State.43 This incident proves that the biggest challenge for submerged States to retain statehood is, not the number of prerequisites at stake, nor the mere lapse of time, but the solidarity of its people. This logic is probably best captured by the Chinese proverb, ‘the water that bears the boat may overturn the boat’, where the people are the water and their sovereign state is the boat. Hence, the people-centered view may act for or against the continuity of statehood, with the decision ultimately in the hands of the people.

Conclusion In conclusion, for a study on the continuity of the statehood of submerged States, Trindade’s opinion on the existence of a ‘people-centered view’ is timely. By linking International Law with human rights, he opts for a system of International Law that prioritizes the needs and aspirations of the people when deciding the existence or continuity of their statehood. This people-centered outlook sits neatly with

the presumption of state continuity in International Law in that this outlook helps us to define a crucial element of the presumption – ‘temporality’. That is, the absence of prerequisites of statehood will be deemed temporary, and thus the statehood shall continue, for as long as the people remain dedicated to the continuation of their statehood.

Tong Zhang is a third year law and IT student with a special interest in international law and legal theory. Readers are welcome to contact Jeanette at u5195526@anu.edu.au for any questions or comments

Notes 1.

Jane McAdam, ‘Disappearing States’, Statelessness and the Boundaries of International Law (Law Research Paper Thesis, University of New South Wales, 2010) 4 <http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1539766>.

2.

[2010] ICJ Rep 403 (‘Kosovo Advisory Opinion’).

3.

Kosovo Advisory Opinion [2010] ICJ Rep 403, 582 [150].

4.

Ibid 591 [170].

5.

Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (Martinus Nijhoff Publishers, 1st ed, 2010) 139.

6.

Ibid 272.

7.

Ibid 274.

8.

Ibid 273.

9.

Ibid 139.

10.

Ibid 315.

11.

Kosovo Advisory Opinion [2010] ICJ Rep 403, 549 [66].

12.

Ibid 557 [87].

13.

Montevideo Convention on the Rights and Duties of States, signed 26 December 1933, 165 LNTS 20 (entered into force 26 DeINTERNATIONAL ADVOCATE | 19

cember 1934) (‘Montevideo Convention’) art 1.

14.

Kosovo Advisory Opinion [2010] ICJ Rep 403, 553 [77].

15.

Ibid 591 [169].

16.

Ibid 550 [66].

17.

Ibid 591 [177].

18.

Ibid 591 [170].

19.

James Crawford, The Creation of States in International Law (Oxford University Press, 2nd ed, 2006) 715.

20.

Ibid. Where Crawford says the presumption of state continuity “assumes a striking character in the case of belligerent occupation”.

21.

Katrin Tiroch, Governments in Exile (April 2011) Oxford University Press, Max Planck Encyclopedia of Public International Law, 2 <http://opil.ouplaw.com/view/10.1093/ law:epil/9780199231690/law9780199231690-e1049?rskey=GnsbDJ&result=1 &q=government%20in%20exile&prd=EPIL>.

22.

Ibid 17.

23.

SC Res 662, 2934th mtg, SC Doc S/ RES/0662 (9 August 1990) [2].

24.

James Crawford, The Creation of States in International Law (Oxford University Press, 2nd ed, 2006) 671. See where Crawford says, “A state may be said the same where it is continuous in the sense defined or where after temporary suppression, an entity with substantially the same constituent features is re-established”.

25.

Ineta Ziemele, being one of the current judges of the European Court of Human Rights, is capable of being regarded as such a most highly qualified publicist.

26.

Ineta Ziemele, ‘Is the Distinction between State Continuity and State Succession Reality or Fiction?’ in Ineta Ziemele (ed), State Continuity and Nationality: Baltic States and Russia (Kluwer Law International, 2005) 191, 221.

27.

Statute of the International Court of Justice art 38(1)(b). International custom is treated as an “evidence of a general practice accepted as law”.

28.

Statute of the International Court of Justice art 38(1)(d). Teachings of “the most highly qualified publicists of the various nations” are identified as a subsidiary source of International Law. 29.

Jane McAdam, ‘Disappearing States’, Statelessness and the Boundaries of International Law (Law Research Paper Thesis, University of New South Wales, 2010) <http://papers.ssrn.

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com/sol3/paperscfm?abstract_id=1539766> 2.

30.

Ibid.

31.

Rosemary Rayfuse, ‘International Law and Disappearing States - Maritime Zones and the Criteria for Statehood’ (2011) 41(6) Environmental Policy and Law 281, 12.

32.

Hersch Lauterpacht, Recognition in International Law (Cambridge, 1st ed, 1947) 33.

UN High Commissioner for Refugees, ‘Climate Change and Statelessness: An Overview’, Submission. 15 May 2009, 2.

34.

Hestetune Jared, ‘The Invading Waters: Climate Change Dispossession, State Extinction, and International Law’ (2010) California Western School of Law, 44.

35.

Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (Martinus Nijhoff Publishers, 2010) 139.

36.

Krystyna Marek, Identity and Continuity of States in Public International Law (Librairie E. Droz, 2nd ed, 1968) 10.

37.

Kosovo Advisory Opinion [2010] ICJ Rep 403, 591 [170] (Judge Trindade).

38.

Ineta Ziemele, ‘States, Extinction of ’ in Ineta Ziemele et all (eds), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2007) 3 <http://opil.ouplaw.com/view/10.1093/ law:epil/9780199231690/law-9780199231690e1111?rskey=rk8jGH&result=1&q=disappeari ng%20states&prd=EPIL>. See also Crawford, James, The Creation of States in International Law (Oxford University Press, 2nd ed, 2006) 701, 704.

39.

Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, 122 (Judge Dillard).

40.

Walter Kalin, ‘Conceptualising Climate-Induced Displacement’ in Jane McAdam (ed), Climate Change and Displacement (Hart Publishing, 2010) 81, 117.

41.

Sumon K. Chakrabarti, Saeed Ahmed, Sinking island’s nationals seek new home (11 November 2008) CNN <http://edition.cnn. com/2008/WORLD/asiapcf/11/11/maldives. president/>.

42.

Kiribati eyeing land in Fiji as sea levels rise (1 March 2012) TVNZ <http://tvnz. co.nz/world-news/kiribati-eyeing-land-in-fijisea-levels-rise-4750873>.

43.

Rosemary Rayfuse, ‘W(h)ither Tuvalu? International Law and Disappearing States’ (Working Paper 9, University of New South Wales Faculty of Law, April 2009), 23.

In Conversation with Professor Kim Rubenstein Megan Lingafelter in practice. Kim recalls, “back in my day there was no such thing as summer clerkships”. Despite the lack of an organised program, Kim reached out to Corrs Chambers Westgarth, where she worked over the summer, getting her first exposure to a law firm.

Dr Kim Rubenstein

Kim Rubenstein is the Director of the Centre for International and Public Law (CIPL) in the ANU College of Law. An accomplished academic and leading researcher in her field, Kim’s presence at the ANU is marked by her sincere dedication to students and their education. The ILS meets with Kim to discuss her own journey through law, her current work, and that of CIPL.

Beginnings During her university years, Kim began in a similar place to many- knowing “I loved the substance of law, but wasn’t always sure as to how I’d use it”. Believing “it was important to be qualified... to practice in law” Kim set out to gain exposure to the world of law

Kim emphasised the importance of a mentor to her learning- in particular Emilios Kyrou, Supreme Court Prize Winner of Melbourne University.

Emilios “allowed me to sit in his office for 4 months during my articles. I got to hear his telephone conversations... he would just talk me through everything.”

Kim still recognises this as “a precious, very rare sort of experience”.

Upon completing her law degree, Kim went on to undertake her Articles, and then to practice, at Corrs Chambers.

However Kim began to see “that practice in a law firm was ultimately a business.” Realising the work “wasn’t necessarily always driven by the principles of law”, but rather “common sense in the scenario” underplayed the value of law in practice for Kim. Furthermore, Kim remembers the “macho style of working environment… that never resonated with me as a place I’d be comfortable continuing to work.”

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Though at the time Kim was uncertain what her next step would be, a visit to Harvard University showed Kim “this is where I wanted to go”. Receiving a Sir Robert Menzies Scholarship and a Fulbright postgraduate award, Kim went on to Harvard Law School. For Kim, “it was the richest year… I took everything that was on offer” and there “it clicked, that academia was the place for me”.

Current Research Today, Kim’s research focuses on the nexus between public and international law- predominantly through the study of citizenship. Kim has also remained dedicated to the study and discussion of women in law.

Citizenship Whilst teaching at the University of Melbourne, Kim was asked to present at a conference which her colleague, Professor Cheryl Saunders had been invited to but could not attend. Whilst Kim was preparing her paper on citizenship for this event, she realised “there wasn’t much written about citizenship law”, and furthermore “there was nothing in the constitution about citizenship”. From this, Kim’s initial paper was transformed into a submission to the Australian Research Council. From this ARC grant came 22 | INTERNATIONAL ADVOCATE

Kim’s book Australian Citizenship Law in Context.

Today Kim is also the co-editor of the Cambridge University Press series Connecting International with Public law.

Feminism and Constitutional Law After writing a piece on gender and constitutional law with Deborah Cass, Kim began to lobby for an equal representation of women at the 1998 Constitutional Convention. Kim ran as part of a women’s ticket for the convention- which saw Kim and her colleagues dressing up in suffragette garb and attending the races to campaign. For this, the women were “almost threatened for being thrown off the course for handing out political literature.”

Since then Kim has established international research networks on feminism and constitutional law. In

2011-2012, Kim was the Inaugural Convenor of the ANU Gender institute, and currently she is working as the Primary Investigator for the oral history project, Trailblazing Women and the Law.

Further information CIPL

Centre for International and Public Law (CIPL)

One of CIPL’s major conferences, the Public Law Weekend, will commence October 24. The Annual Geoffrey Sawer Lecture will be held October 23.

Established in 1990, CIPL provides an avenue for public discussions on current issues in international and public law. The Centre hosts a number of workshops, seminars, and speakersdrawing from visiting academics, government lawyers and staff.

CIPL Series: Connecting International and Public law: http://www.cambridge. org/au/academic/subjects/law/ public-inter national-law/series/ connecting-international-law-publiclaw

Each year CIPL convenes the Australian and New Zealand Society of International Law Annual Conference and the Public Law Weekend- the latter to commence October 24th, 2014.

CIPL’s major lectures include The Annual Kirby lecture on International Law, and the Annual Geoffrey Sawer Lecture- to be held October 23rd, 2014.

The Centre is also responsible for the Australian Yearbook of International Law. While Kim describes her way into international law as “quite narrow” as “a public lawyer whose work touches on international law by way of citizenship”, Kim’s expertise on the linking of public and international law has been the basis of the Cambridge University Press series Connecting International and Public Law and has proved a fantastic contribution to CIPL and its endeavours.

Masters course: LAWS8175 Citizenship Law in Context http://programsandcourses.anu.edu. au/course/LAWS8175 Dual citizenship Kim’s recent opinion piece on dual citizenship conceived in light of terrorism is also available at: http:// www.theaustralian.com.au/opinion/ australias-dual-citizenship-laws-shouldnot-be-diluted-in-terror-fight/storye6frg6zo-1227048154768

Megan Lingafelter is in her second year of a BIR/LLB, majoring in international security. Megan is the current Vice President and President elect for 2015.

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Changes to LAWS2250 - Part Two Jacqueline Wilmott

Dr Hitoshi Nasu, who would like to see more students during his office hours.

LLB students of LAWS2250 have recently completed a take home exam, the initial piece of assessment for a course whose assessment has been significantly reformulated.

The takehome is the first of 3, 1-hour takehomes, each of which is worth 30%. The best two marks make up 60% of the grade. The end of semester assignment is then worth 40%.

The International Law Society has had a chance to speak with Dr Hitoshi Nasu, LLB Course Convener, at the midway point for the course, not only to enquire about its progress thus far but also to find out what he has been working on recently.

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Dr Nasu explained that the takehome exams may pose a problem or essay question.

He said that the exams were “not testing exam skills. Don’t try to mix up beautiful sentences, just explain what you know….although its always a good idea to have paragraphs.”

This tongue-in-cheek comment clearly underlines the sentiment for the assessment of the course this semester. Students are urged to engage with the course as much as possible and the assessment is designed to test understanding, not exam technique. To this end, “tutors are instructed to mark generously if they can see the student is

MASTER OF LAWS I N T E R N AT I O N A L S E C U R I T Y L A W >

Address contemporary security challenges through original thinking and independent research

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Flexible programs to suit part-time study

Further information law.anu.edu.au pgadmin.law@anu.edu.au

ANU College of Law

ANU College of Law

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engaging with the learning.”

However Dr Nasu concedes that “any attempt to change the culture is a formidably difficult one. I wouldn’t expect students this year to completely change their mindset and remove themselves from the exam culture.”

The assessment program does not include a mark for tutorial participation.

However, at the end of Term 3, Dr Nasu reports that attendance has not suffered. This is set to continue throughout Term 4 as assessment will be returned during tutorials.

The assessment scheme is the first of its kind among compulsory subjects.

Dr Nasu’s colleagues are keenly interested in how it will be received among students, and what it will mean for both teaching and learning.

Apart from the assessment, the lecture structure is equally innovative. Dr Nasu said “those keen to learn will find more interesting stuff being shown.”

Previously, students had to wait 13 weeks before the course material came together.

We asked Dr Nasu if it was difficult to compress 13 weeks of lecture material into the first 7 weeks. He denied that they had spent less time on explaining the principles, making the decision to leave out less interesting topics 26 | INTERNATIONAL ADVOCATE

altogether to avoid compromising others. Some students have found it difficult processing 7 weeks of principles without examples to which they can apply their knowledge. Like any course however, Dr Nasu is confident that by week 13 students will have a holistic understanding of the material.

Outside LAWS2250, Dr Nasu has recently completed further research on the topic of ASEAN as a security institution. He reported that his Honours students this semester were making good progress, also exploring related topics on security in international law. Dr Nasu is also has a forthcoming book, Legal Perspectives on Security Institutions.

[As with any lecturer, it was a pleasure to speak with Dr Nasu. I would encourage both current and former students to drop in during his consultation hours, his advice and humour was a refreshing and motivating break from the usual law school routine.]

All students are encouraged to attend the guest lecturers planned for Term 4, and the ILS Committee invites its members and staff to benefit from this opportunity.

Jacqueline Wilmott is in her final semester of law, and is the currrent President of the ILS.

LAWS2250 Guest Lecture Schedule Associate Professor David Letts | Tuesday 7 October Associate Professor Letts is the Co-Director, Centre for Military and Security Law, former legal officer and Commodore at the Australian Royal Navy, and will be speaking on the customary international law principles in the law of armed conflict.

Professor Hilary Charlesworth | Monday 13 October Professor Charlesworth was an Judge ad hoc of the International Court of Justice in 2011 for the Whaling in the Antarctic case, and will be speaking on treaty interpretation in the Whaling case.

Mr Richard Rowe | Monday 20 October Mr Rowe is a former senior legal adviser of Department of Foreign Affairs and Trade, and will be speaking about Australiaâ&#x20AC;&#x2122;s engagement with the negotiation and implementation of the Rome Statute of the International Criminal Court.

Mr Bill Campbell | Monday 27 October Mr Campbell is Counsel for the Attorney-Generalâ&#x20AC;&#x2122;s Department, topic TBA. Lectures are held from 2 - 4pm in Coombs Lecture Theatre.

ANU College of Law

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World news Elisabeth Storor

Image credit: DVIDSHUB, https://www.flickr.com/photos/dvids

Formation of anti-ISIL coalition Isis, IS, ISIL. Though its name appears to change every time it reappears in the headlines, the rising threat of the terrorist group struggling for a new Islamic State is its one steadfast feature.

While the international community was initially cautious in its response to the terror the group is spreading across Syria and Iraq, the formation of a coalition to fight against it offers new hope. The coalition, comprised of the United States, America, Australia, Canada, Turkey, Poland, Denmark, France, Germany and Italy, will attempt to realise US President Barack Obama’s ambition to “degrade and destroy” ISIL. Commentators have noted the importance Western countries are now placing on the legality of intervention, an issue in the forefront of politicians’ minds following the controversy 28 | INTERNATIONAL ADVOCATE

over whether the 2003 invasion of Iraq contravened international law.

Accordingly, US Secretary of State John Kerry took the coalition’s agenda to a UN Security Council debate on September 19. Council members adopted a presidential statement urging the international community to support Iraq as it fights ISIS. Determined to differentiate this intervention from 2003, Western leaders are reaching out for support from Arab states, particularly those with a Sunni majority. While, much like the Middle East in general, the conflict possesses a complex and volatile nature, the value now being placed on cooperation and legality offers new hope on the viability of ISIL’ defeat.

More information: http://www. securitycouncilreport.org/monthlyforecast/2014-10/syria_12.php

Report released on Human Rights and Internet Freedom The Inter-American Commission on Human Rights (IACHR), an autonomous organ of the Organization of American States (OAS) has released a landmark report, Freedom of Expression and the Internet, following its interregional conference in early June.

Representatives from civil society actions groups in Colombia, Argentina, Chile, Mexico, Venezuala and the US, as well as the Trust for the Americas and Open Society Foundation and field experts, collaborated to produce the report which lays out general principles to guide the protection of the rights to freedom of thought and expression in the digital era. It also systematizes

standards surround treatment of the issue and analyses the relevant best practices, international doctrine and jurisprudence. The report’s findings will be extremely beneficial to online activist, civil society organisations and judicial operators and regulators who fight for human rights in a digital sphere. From the uproar over the treatment of NSA whistle-blower Edward Snowden to China’s systemic program of persecution of its country’s online activists, recent world events have indicated the importance of setting out clear legal guidelines for those who seek to fight for freedom in a digital sphere.

More information: http://www.oas. o rg / e n / i a ch r / ex p re s s i o n / d o c s / reports/2014_04_08_Inter net_ ENG%20_WEB.pdf

Image credit: Kristina Alexanderson, https://www.flickr.com/photos/kalexanderson/

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Chevron’s dirty dealings in Ecuador Further details of rampant corruption have emerged in the court case between citizens of Lago Agrio, Ecuador and multinational company Chevron. The latter stands accused of deliberately dumping more than 18 billion gallons of toxic waste-water in the Lago Agrio region, a practice which has been coined the ‘Rainforest Chernobyl’.

While the plaintiffs originally filed the suit in the US, Chevron requested it be moved to Ecuador, where it hoped its ties with the government would ensure a more favourable verdict. A recent independent inquiry published correspondence between an Ecuadorian contractor working for Chevron and his friend revealing the extent of Chevron’s corruption within the region. The contractor, Diego Borja, was involved in setting up Chevron’s supposedly independent water and soil

testing labs and was later funded by the company to move and be naturalised in America with a $2 million pay check.

It has now become apparent that no actual testing was done in labs such as the one Borja helped assemble. A snippet from the transcript published exposes the rapacious influence multinationals such as Chevron exert in developing countries. Borja, in justifying his involvement with the company, reportedly said that Chevron has “all the tools in the world to go after everyone…. once the trial is over, they’ll go after everyone who was saying things about it.” While the emergence of evidence like this may propel the citizens of Lago Agrio’s case, many commentators are skeptical that they will ever be successful in receiving justice in the face of Chevron’s corruption.

More information: http://www. rollingstone.com/politics/news/ sludge-match-chevron-legal-battleecuador-steven-donziger-20140828

Image credit: Rainforest Action Network, www.flickr.com/photos/rainforestactionnetwork

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Image credit: Derek Gavey, https://www.flickr.com/photos/derekgavey/

Stop Wining!

Wine sales between Canada and the European Union could soon be restricted under a new trade agreement between the two parties. A leaked document, alleged to be a copy of the document agreed upon by Canadian Prime Minister Stephen Harper and EU trade negotiators, indicated that the original 1989 trade agreement between the two will be updated so that only a select few Canadian wineries will be able to see their products to European importers. The suggestions of trade restrictions have had some commentators up in arms over whether such a move would constitute a violations of the principles laid down in the General Agreement on Tariffs and Trade (GATT). While the Harper government has previously promoted the pact as a means of economic

stimulation and job creation, those in the industry disagree. The pact would deny Canadians the chance to buy European wines, a measure international trade lawyer Matthew Kronby has labeled as ‘discriminatory’. As Canadian winemaker Tyler Dawson told Canada Today, “the irony is strange: a free-trade agreement, and limiting the sale of one country’s domestic product.” Perhaps the only type of red Canada should regulate is the rosy shade of its flag’s maple leaf !

More information: http://www. ctvnews.ca/mobile/politics/ canada-s-wine-industry-may-facerestrictions-if-leaked-eu-trade-deal-isaccurate-1.1960876 Elisabeth Storor is in her first year of an LLB/BA majoring in Arabic and Human Rights, and is also the ILS Director of Publications for 2015.

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ABOUT THE

ANU INTERNATIONAL LAW SOCIETY The ANU International Law Society (ILS) is a student run orgnisation located at the Australian National University in Canberra. The society is dedicated to the study and enjoyment of international law.

Its activities include publishing the International Advocate featuing contributions from students, academics and practitioners, providing insightful events and valuble academic support to students.

For more information on the societyâ&#x20AC;&#x2122;s activities, upcoming events and how you can get involved please visit www.anuils.com www.facebook.com/ANUILS