The Advocate 2021 by ANU International Law Society

THE ADVOCATE.

2021 EDITION

The ANU International Law Society acknowledges the Ngunnawal and Ngambri peoples, traditional custodians of the lands on which the ANU is located. We pay our respects to Elders past, present and emerging.

CONTENTS Editorial

Stefhan Meyer

Articles International Criminal Law and Defence Counsel Justice Chrissa Loukas-Karlsson

The Fifth Anniversary of the South China Sea Arbitration: Still Significant? Edward Cheston

Membership of a Particular Social Group: A Feminist Appraisal of the Refugee Convention’s Doctrinal and Functional Limitations in Addressing Gender-Based Violence Taynissa Vakeeswaran

Against the Grain? Assessing Japan’s Shift in Agricultural Protectionism Siena Hopkinson

The Effects of Rising Sea-Levels on the Maritime Boundaries of Pacific Island Nations Alice Read

Communitarian Necessity: The Unlikely Prospect of Evolution from Lex Ferenda to Lex Lata Keshav Karupiah

Treaty Ratification and Noncompliance: The Case of Pakistan and the Convention Against Torture Nasra Al Baloshi

Cyberforce and the Prohibition on the Threat or Use of Force Alexandra Mamouney

A Critical Endorsement of the International Law Commission’s Drafting of the Plea of Necessity Lily Pang

Reconciling Australia’s Commitments under the Artemis Accords and Moon Treaty Kriti Mahajan

Analysis of China’s Behaviour in the World Trade Organization Hongxuan Xu

Is a New Approach to the Jus Ad Bellum of Cyber Warfare Needed? Chris Lasek

What Political Factors Explain China’s Continued Non-Ratification of the Rome Statute of the International Criminal Court? Emma Brindley

How the Current Status of West Papua Might Be Challenged under International Law Kriti Mahajan

Guides International Law Career Advice: An Interview with Associate Professors Kate Ogg and Esmé Shirlow Freya Cox

Five Hot Tips for Writing a SRP in International Law (from Someone Who Tried!) Hayley Keen

EDITORIAL Welcome to the 2021 edition of The Advocate. 2021 marked the 10-year anniversary of the ANU International Law Society. The previous 24 months of snap lockdowns, capacity limits and other health measures in response to the COVID-19 outbreak have posed a near existential threat to that milestone. Despite these challenges, the 2021 Executive have made it a successful year through for their creativity, flexibility and persistence, now finally culminating in the publication of The Advocate. The 2021 Executive looks forward to seeing next year’s initiatives and opportunities under Neeve O’Hara’s leadership. I would also like to acknowledge the contribution of sub-editors Freya Cox and James Layman. I am grateful for all your assistance in commissioning and preparing articles, and your insights in the key editorial decisions of this year’s edition. This year’s edition has been one of the most voluminous editions of The Advocate for some time and it couldn’t have been possible without your contribution. This year’s edition commences with an article by Justice Chrissa Loukas-Karlsson that reflects on the contribution by Australian lawyers to the field international criminal law. The ILS extends our thanks to her Honour for contributing to the Society. The edition’s student contributions feature essays discussing a broad range of topical issues, new developments and social justice matters in international law. Ned Cheston revisits the Permanent Court of Arbitration’s merits decision in the South China Sea Arbitration (China v Philippines), and discusses its ongoing significance and limitations. Taynissa Vakeeswaran provides a feminist critique of the ‘particular social group’ jurisprudence that has emerged from jurisdictions with a Refugee Convention-based asylum processing system. Alice Read examines the implications of rising sea levels under the United Nations Convention on the Law of the Sea for Pacific Island states and evaluates reform proposals to the Convention. Keshav Karupiah discusses the communitarian element of the plea of necessity in Article 25 of the Articles on State Responsibility and its prospects of becoming customary international law. Alexandra Mamouney assesses the salience of the Tallinn Manual 2.0’s propositions regarding the applicability of the prohibition on the use of force in cyberspace in light of state practice. Lily Pang discusses the balance struck between stricture and ambiguity by the International Law Commission in the drafting of Article 25 of the Articles of State Responsibility. Kriti Mahajan discusses Australia’s conflicting obligations under the Moon Treaty and the recently signed Artemis Accords and the policy implications for Australia’s space program. Kriti also separately discusses the options available to West Papuans under international law to challenge their status as an Indonesian territory. Chris Lasek discusses the implications of applying kinetic-based definitions of the use of force on cyberattacks. The edition also features a number of inter-disciplinary essays that draw on sociological and international relations perspectives. Siena Hopkinson draws on cultural and institutional factors to explain Japan’s weakening regime of agricultural protectionism. Nasra Al Baloshi and Hongxuan Xu draw on the realist theory of international relations to explain Pakistan’s ratification and noncompliance of the Convention against Torture, and China’s accession to and mixed compliance record in the World Trade Organization respectively. Emma Brindley provides a constructivist account of China’s continued non-ratification of the Rome Statute of the International Criminal Court. The edition concludes with career and research advice from Freya Cox and Hayley Keen. Freya provides a summary of her interview with Associate Professors Kate Ogg and Esmé Shirlow, where they discussed what students can do to secure a career in the field of international law. Hayley

reflects on her experiences of writing a Supervised Research Paper (LAWS4300) and gives five tips for anyone considering doing one. I extend my thanks to all contributors. I am very appreciative of your enthusiasm and engagement throughout the editing process, particularly given how disruptive 2021 was.

Stefhan Meyer Publications Director

INTERNATIONAL CRIMINAL LAW AND DEFENCE COUNSEL Justice Chrissa Loukas-Karlsson I

INTRODUCTION

In 2018, Chrissa Loukas-Karlsson was sworn in as a judge of the Supreme Court of the Australian Capital Territory. From 2003 to 2006, her Honour was counsel before the United Nations International Criminal Tribunal for the former Yugoslavia (‘ICTY’) in The Hague. Her Honour was also Vice President of the Association of Defence Counsel for the ICTY during that time. Additionally, her Honour worked at the International Criminal Court (‘ICC’) in chambers with Judge Ušacka in 2006. Her Honour was elected to the executive of the New South Wales Bar Council in 2015 and elected Junior Vice President of the New South Wales Bar in 2017. Additionally, in 2015, her Honour was appointed a Director of the Law Council of Australia. Her Honour was also a member of the International Bar Association’s Criminal Law Committee Taskforce on Extra Territorial Jurisdiction in 2007. Her Honour was appointed Senior Counsel in 2012. Justice Loukas-Karlsson was awarded the Woman Lawyer of Achievement Award in 2002 by the Women Lawyers Association of New South Wales, the Senior Barrister Award in 2013 at the Lawyers Weekly Women in Law Awards in Melbourne and Barrister of the Year in 2017 by the Women Lawyers Association of New South Wales. II

THE INTERNATIONALISATION OF AUSTRALIAN CRIMINAL LAWYERS: 25 YEARS IN THE HAGUE1

The ICTY was the world’s first international criminal tribunal since the Nuremburg and Tokyo Tribunals. From the ICTY’s earliest days, Australians made prominent contributions to the tribunal as judicial members, prosecutors, investigators and defence counsel. The ICTY ceased operation after almost 25 years in 2017. In 2019, Sarah Pitney, Canberra lawyer and former intern at the ICTY, authored the article ‘The Internationalisation of Australian Criminal Lawyers; 25 Years in the Hague’. The article reviewed the role of Australians in the development of the ICTY’s procedures and jurisprudence. It was emphasised that the success of Australians at the ICTY ought to encourage members of the Australian legal profession to consider contributing to the ongoing work of the ICC, as well as the field of international criminal justice more broadly.2 Justice LoukasKarlsson wholeheartedly endorses those comments. The article referred to then Sydney Barrister Chrissa Loukas-Karlsson as an Australian appearing as counsel at the ICTY in the following extract:3 Other Australians such as Sydney barrister Chrissa Loukas-Karlsson (who has recently been appointed to the bench of the Supreme Court of the ACT) joined the ADC [Association of Defence Counsel], an organisation formed in 2002 to ensure the quality of defence and to enable collective representations to be made to the Tribunal in respect of important legal issues. It is noteworthy that in part, the impetus for the ADC came from the Bench, with an ad hoc working group of judges (including Australia’s Judge Hunt) working with defence counsel to develop the proposal.

Sarah Pitney, ‘The Internationalisation of Australian Criminal Lawyers: 25 Years of Australians in The Hague’ (2019) 93(4) Australian Law Journal 321. 2 Ibid 321. 3 Ibid 329–30 (citations omitted). 1

From 2003 to mid-2005, Loukas-Karlsson was appointed as co-counsel for President of the Bosnian Serb Assembly Momčilo Krajišnik, who faced charges of genocide, crimes against humanity and war crimes across 35 municipalities in the period of 1991–1992. Loukas-Karlsson also represented Major Dragan Jokić, Chief Engineer of the Zvornik Brigade during the fall of Srebrenica, in his appeal against conviction for aiding and abetting war crimes and crimes against humanity (murder and extermination). Later in 2005, at the invitation of the Appeals Chamber in Prosecutor v Brđanin, Loukas-Karlsson (then Acting President of the ADC) and other members of the ADC filed an amicus curiae brief in respect of the proper scope of the doctrine of joint criminal enterprise. A significant challenge for defence teams was managing the volume of evidence with the highly constrained resources available to the defence. For example, in Prosecutor v Momčilo Krajišnik (Krajišnik), which extended 314 days, over 4,000 exhibits were tendered and evidence was given by 124 witnesses. Loukas-Karlsson recalls notifying the Trial Chamber in Krajišnik that she would have only one working day to prepare to cross-examine an expert witness, Mr Nielsen, on his extensive report on the Bosnian Serb Ministry of Internal Affairs which referenced a large amount of material in over 500 footnotes. Loukas-Karlsson’s cross-examination ultimately revealed errors in the report, with Mr Nielsen accepting that his suggestion that Mr Krajišnik ‘strongly hinted that the establishment of a Bosnian Serb police force was imminent’ during the 12th session of the Bosnian Serb Assembly on 24 March 1992 was erroneous. Loukas-Karlsson also drew attention to two further challenges faced by defence counsel. The first was the difficulty navigating a fair trial in light of the Tribunal’s ‘Completion Strategy’. The impact of the Completion Strategy, and its relationship with Rule 92bis, are noted in the remarks of Judge Hunt extracted above. Writing in 2004, Loukas-Karlsson (then Vice-President of the ADC) described Judge Hunt’s remarks as evincing ‘a deep discomfort with the gradual erosion’ of the accused’s rights. The second was the ‘uneasy marriage’ between the civil law and common law traditions at the Tribunal. For example, while the insertion of Rule 92bis blends aspects of the civil law tradition (where dossiers of evidence are presented pre-trial) with the largely adversarial approach taken by the Tribunal, it does so by diminishing the accused’s right to cross-examine, an important aspect of the common law system. In order to ameliorate some of the challenges faced by the defence, in 2005, Loukas-Karlsson (Acting President of the ADC) and other members of the ADC submitted a proposal for the inclusion of an Office of the Defence within the Tribunal’s structure similar to the OTP [Office of the Prosecutor]. The proposal argued that an Office of the Defence would ‘capture institutional knowledge’ that is lost as each defence team departs from the Tribunal, promote quality defence and reduce the ‘myriad of institutional and bureaucratic hurdles’ faced by defence counsel. However, that proposal was never adopted. From the above example of the contribution of Australians to the ADC, and the contributions of Australians to the OTP and Bench described earlier, one can distil a common theme — a deep concern to ensure the integrity and fairness of international criminal trials. That concern was reflected in the development of the ICTY’s procedures and jurisprudence.

III

CONCLUSION

Australians have played important roles in international criminal law. In particular at the ICTY, Australians have been involved throughout the life of the tribunal as judges, as prosecutors and as defence counsel. Justice Loukas-Karlsson urges members of the ANU International Law Society and Australian lawyers generally to play a role in the continuing development of international criminal law. Justice Loukas-Karlsson emphasises that we must not allow the tyranny of distance and the pandemic to dissuade Australian lawyers from continuing to play a significant role in international criminal law.

REFLECTIONS ON THE SOUTH CHINA SEA ARBITRATION’S SIGNIFICANCE ON ITS FIFTH ANNIVERSARY Edward Cheston I

INTRODUCTION

For many years, the South China Sea (‘SCS’) has been a hotbed for altercations relating to sovereignty, maritime boundary delimitations and competing maritime entitlements. The body of water has always carried immense geo-political importance.1 However, since the entry into force of the United Nations Convention on the Law of the Sea (‘LOSC’), states have more assertively claimed portions of the oceans as their own, provoking conflict when these claims overlap.2 In recent times, a central dispute has played out between China and the Philippines. Having exhausted various other dispute resolution options, the Philippines applied in early 2013 to have an Arbitral Tribunal (‘the Tribunal’) adjudge its dispute with China under Article 287 and Annex VII of the LOSC.3 The Tribunal only considered the states’ maritime entitlements, sidestepping questions of sovereignty and maritime delimitation.4 Nevertheless, it still handed down a landmark Award overwhelmingly favouring the Philippines on 12 July 2016. The Tribunal dismissed the legality of the so-called ‘nine-dash line’, which China had been using as the basis of its maritime claims.5 Additionally, it assessed the legal status of numerous maritime features. To this end, the Tribunal undertook a remarkably close analysis of Article 121 of the LOSC, a central definitional provision.6 This piece begins by presenting the ambiguity inherent in Article 121. Then, it outlines the Tribunal’s judgment and explains how it authoritatively clarified the proper interpretation of the terms ‘islands’, ‘rocks’ and ‘artificial islands’. Next, the significance of the Tribunal’s interpretation is discussed. Specifically, it is argued that the Award’s significance lies in the fact it was the first attempt by a judicial body to interpret this much contested provision. However, the Award is yet to have settled all confusion, as this article’s final section will explain. II

ARTICLE 121

As the Tribunal itself noted, the ‘plain text’ of Article 121 ‘offers limited guidance’ for those seeking to apply it.7 As such, the meaning and status of ‘islands’, ‘rocks’ and ‘artificial islands’ in international law has long been debated. A

Article 121

Article 121 of the LOSC serves two critical purposes: first, it defines key maritime features and second, it outlines the maritime entitlements that these features generate. Zhiguo Gao and Bing Bing Jia, ‘The Nine-Dash Line in the South China Sea: History, Status and Implications’ (2013) 107(1) American Journal of International Law 98, 99; Nong Hong, UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea (Routledge, 2012) 5. 2 Yann-huei Song and Stein Tønnesson, ‘The Impact of the Law of the Sea Convention on Conflict and Conflict Management in the South China Sea’ (2013) 44(3) Ocean Development & International Law 235, 237. 3 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994) art 287, annex vii (‘Law of the Sea Convention’). 4 David P Stewart, ‘Marine Entitlements in the South China Sea: The Arbitration Between the Philippines and China’ (2016) 110(4) American Journal of International Law 746, 746. 5 The South China Sea Arbitration (Philippines v China) (Award) (Permanent Court of Arbitration, Case No 2013–19, 12 July 2016) [169]–[278] (‘The South China Sea Arbitration’). 6 Law of the Sea Convention (n 3) art 121. 7 South China Sea Arbitration (Award) (n 5) [512]. 1

Islands

As per Article 121(1), an ‘island’ is a ‘naturally formed area of land, surrounded by water, which is above water at high tide’.8 If a feature meets this definition, it will generate the full range of maritime entitlements envisaged under the LOSC, including a territorial sea, Exclusive Economic Zone (‘EEZ’) and continental shelf. 9 a

Low-Tide Elevations

As an ‘island’ is required to sit above the water’s surface at high tide, the LOSC conversely defines those features that do not. Article 121 must be read alongside Article 13, which defines features ‘surrounded by and above water at low tide but submerged at high tide’ as ‘low-tide elevations’ (‘LTEs’).10 LTEs do not generate maritime entitlements but are usable when drawing straight baselines.11 2

Rocks

Article 121(3) operates as a ‘disqualifying test’ to render a feature that would otherwise be an ‘island’ a ‘rock’.12 The critical point of distinction between ‘rocks’ and ‘islands’ is that the former ‘cannot sustain human habitation or economic life of their own’.13 ‘Rocks’ have no EEZ or continental shelf but do impliedly generate a territorial sea.14 3

Artificial Islands

Article 121(1)’s requirement that ‘islands’ be ‘naturally formed’ appears to exclude ‘artificial islands’.15 This is confirmed in Article 60 of the LOSC,16 which makes clear that artificial islands are excepted from Article 121. Accordingly, artificial islands are treated as distinct from islands for international legal purposes and they generate neither territorial seas, EEZs or continental shelves.17 B

Ambiguity and Misuse

When the LOSC entered into force, the world’s oceans were methodically apportioned into a range of maritime zones and the concept of an EEZ was conceived. States have since been able to claim an EEZ of 200 nautical miles extending from their shores, wherein they enjoy sovereign rights over living and non-living natural resources.18 Designed to ensure that parts of the ocean were better regulated,19 an unintended consequence of the LOSC has been states’ attempts to use small maritime features to generate extensive maritime zones.20

Law of the Sea Convention (n 3) art 121(1). Ibid art 121(1)–(2). 10 Ibid art 13. 11 Ibid. 12 Michael Sheng-ti Gau, ‘The Interpretation of Article 121(3) of UNCLOS by the Tribunal for the South China Sea Arbitration: A Critique’ (2019) 50(1) Ocean Development & International Law 49, 50. 13 Law of the Sea Convention (n 3) art 121(3). 14 Ibid art 121(3). 15 Ibid art 121(1). 16 Ibid arts 60, 80. 17 Ibid art 60(8). 18 Ibid art 55. 19 Donald R Rothwell and Tim Stephens, The International Law of the Sea (Bloomsbury, 2nd ed, 2016) 85. 20 Song and Tønnesson (n 2) 237. 8 9

Article 121 confirms that ‘islands’ are capable of projecting the same maritime zones as continental landmasses, without requiring them to be of a certain size.21 For this reason, states including China have been able to adopt interpretations of Article 121 that ‘suit their own needs’.22 Small maritime features have regularly been used to claim territorial seas, EEZs and continental shelves. So common is this practice that commentators suggest various nations have ‘blatantly violated’ Article 121 to an ‘alarming extent’.23 Nevertheless, judicial fora have shied away from the task of interpreting and clarifying Article 121.24 In five separate cases, the International Court of Justice was asked to consider the status of a maritime feature but turned down an opportunity to consider Article 121’s proper meaning.25 Prior to the South China Sea Arbitration (‘SCSA’) Article 121 was, therefore, a provision of ‘exceptional brevity’.26 This shyness can perhaps be attributed to Article 121’s deliberate ambiguous drafting. Prior to the LOSC’s entry into force, many nations with claims over small, uninhabited features sought to maximise the possible gains in territory that come with their possession.27 Article 121 is therefore described as one of the LOSC’s ‘built-in ambiguities’.28 As Davenport argues, to ‘endow [the provisions] with more detail would scuttle any possibility of agreement’.29 So, the drafters of the LOSC left open the possibility that states apply Article 121 expansively. III

THE SCSA

In 2013, Song and Tønneson argued that the ‘peacemaking potential’ of Article 121 would be unlocked with ‘gradual development of more precision through precedents’.30 Through engaging ‘the first full examination’ of the ‘regime of islands’ in a judicial setting, the Tribunal in the SCSA was able to untangle the meaning of the long-confounded provision.31 The restrictive interpretation that it preferred, at least theoretically, obviates the possibility that states use small or artificially enhanced features to generate disproportionately large maritime zones. A

Artificial Features

As aforementioned, the LOSC’s requirement that ‘islands’ be ‘naturally formed’ necessarily excludes artificially created features from Article 121.32 However, prior to the Tribunal’s judgment, the legal status of artificially enhanced natural features was not clear.

Paul von Mühlendahl, ‘Tiny Land Features in Recent Maritime Delimitation Case Law’ (2016) 31(1) International Journal of Marine and Coastal Law 1, 4. Erik Franckx, ‘The Arbitral Tribunal’s interpretation of paragraph 3 in Article 121: a first but important step forward’ in S Jayakumar et al (eds), The South China Sea Arbitration: The Legal Dimension (Edward Elgar Publishing, 2018) 164. 23 Roberto Lavalle, ‘Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations under the UN Law of the Sea Convention’ (2004) 19(1) International Journal of Marine and Coastal Law 43, 69. 24 Franckx (n 22) 154. 25 Ibid 159. 26 von Mühlendahl (n 21) 3. 27 Marius Gjetnes, ‘The Spratly’s: Are They Rocks or Islands’ (2001) 32(2) Ocean Development & International Law 191, 198. 28 Sam Bateman, ‘UNCLOS and its Limitations as the Foundation for a Regional Maritime Security Regime’ (2007) 19(3) Korean Journal of Defense Analysis 27, 27. 29 Tara Davenport, ‘Why the South China Sea Arbitration Case Matters (Even if China Ignores It)’, The Diplomat (online, 8 July 2016) <https://thediplomat.com/2016/07/why-the-south-china-sea-arbitration-case-matters-even-if-china-ignoresit/>. 30 Song and Tønnesson (n 2) 250. 31 Natalie Klein, ‘Islands and Rocks after the South China Sea Arbitration’ (2016) 34 Australian Yearbook of International Law 21, 21. 32 Law of the Sea Convention (n 3) arts 60, 121(1). 21

The legal status of artificially enhanced features came into sharp focus in the SCS context, home to many ‘heavily modified coral reefs’.33 The Tribunal made a critical finding that the status of features would always be determined in relation to their natural condition.34 It held that any of those features which did not protrude from the water’s surface at high tide prior to human modification should and would be classified as LTEs. In the process, it established a new rule that ‘human modification cannot change … a low-tide elevation into an island’,35 irrespective the ‘scale of the island or installation built atop it’.36 B

Islands and Rocks

Recalling that ‘islands’ and ‘rocks’ sit ‘above water at high tide’,37 when assessing entitlements in the SCS, the Tribunal first sought to eliminate features that did not meet this criterion. The first stage of its analysis was assessing whether a feature was an LTE or a ‘high-tide feature’ (‘HTF’). Then, the Tribunal considered whether HTFs should be deemed ‘rocks’ instead of ‘islands’. As will be discussed below, the LOSC does not make reference to the term ‘HTFs’. Rather, the term was coined by the Tribunal, which set out a cohesive analytical process that other judicial bodies might employ in similar future disputes. Having found that some SCS features were indeed HTFs, the Tribunal then considered whether these features should be deemed ‘rocks’ instead of ‘islands’. If they were, those features would then be disqualified from generating maritime entitlements as per Article 121(3) of the LOSC. This provision, as well as its references to ‘economic life’ and ‘human habitation’, had provoked the most debate within the literature. In directly addressing these terms, the Tribunal’s Award alleviated much confusion. 1

Aims

In justifying its strict interpretation of Article 121(3), the Tribunal first considered the provision’s objects and purposes. In its view, the intended operation was ‘to disable tiny features from unfairly and unequally generating enormous entitlements to maritime space’.38 The Tribunal decided that the purpose of according maritime zones to small maritime features was for the benefit of the people living on them, rather than the states more broadly.39 2

‘Human habitation’

The Tribunal defined ‘human habitation’ as the ‘non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner’.40 An ‘island’ would need to be able to ‘support, maintain and provide food, drink and shelter’ for a reasonably sized community.41 Crucially, residents needed to be able to inhabit the island in some level of comfort, rather than

South China Sea Arbitration (Merits) (n 5) [306]. Ibid. 35 Ibid [305]. 36 Ibid. 37 Law of the Sea Convention (n 3) art 121(1). 38 South China Sea Arbitration (Award) (n 5) [514]. 39 Yoshifumi Tanaka, The South China Sea Arbitration: Toward an International Legal Order in the Oceans (Hart Publishing, 2019) 112. 40 South China Sea Arbitration (Award) (n 5) [489]. 41 Ibid [490]. 33 34

merely survive.42 In this sense, the Tribunal interpreted ‘human habitation’ strictly, emphasising the need for both ‘human life and human activity’ for a feature to be an ‘island’.43 3

‘Economic life’

Perhaps the most significant aspect of the Tribunal’s judgment was its consideration of how an island could support economic life. The Tribunal took a strict view of ‘economic life’, suggesting that it was more than mere ‘economic activity’.44 Evidence was needed that people could exploit and develop the resources of the island over a period of time,45 for instance by relying on a system of supply and demand for goods.46 4

‘Of their own’

This aspect of Article 121(3) requires that an ‘island’ be able to support ‘economic life’ and ‘human habitation’ independently. Use of local rather than imported resources would evidence such independence.47 For instance, the Tribunal stated that reliance on ‘the continued delivery of supplies’ would render a feature a ‘rock’.48 Again, this is a restrictive interpretation that serves to prevent states from applying Article 121(3) expansively in their maritime claims. IV

SIGNIFIANCE

The Tribunal’s Award is highly significant in that it serves to place strictures on the proper meaning of ‘artificial islands’, ‘islands’ and ‘rocks’. A

Artificial Islands

The Tribunal hypothesised a number of ways in which an island could be artificially enhanced, including situations where a state converts the seabed into an LTE, an LTE into an ‘island’ and a ‘rock’ to an ‘island’. It repeatedly and authoritatively rejected that each of these examples would change the legal status of the feature in question. Saunders has suggested that these parts of the judgment were ‘stated as a general rule’ and thus will apply to future disputes.49 Similarly, Sweeney suggests the judgment will deter states from ‘expanding maritime entitlements through man-made dredging operations’.50 In theory, this aspect of the Tribunal’s Award is of great significance as it tightens previously elastic understandings of artificial islands. Further, the Tribunal has provided much needed confirmation that states are not to be rewarded with maritime entitlements when artificially altering various geological features. B

Islands and Rocks

The Tribunal’s strict interpretation of ‘rocks’ under Article 121(3) seeks to put an end to expansive maritime claims. In theory, therefore, the Tribunal’s interpretation of Article 121 will help states

Ibid [489]. Klein (n 31) 24. 44 F Shannon Sweeney, ‘Rocks v Islands: Natural Tensions over Artificial Features in the South China Sea’ (2017) 31(2) Temple International and Comparative Law Journal 599, 621. 45 South China Sea Arbitration (Award) (n 5) [499]. 46 Sweeney (n 44) 621. 47 South China Sea Arbitration (Award) (n 5) [500]. 48 Ibid [547]. 49 Imogen Saunders, ‘The Limits of the Natural State Doctrine’ in Donald R Rothwell and David Letts (eds), Law of the Sea in South East Asia: Environmental, Navigational and Security Challenges (Routledge, 2019) 133. 50 Sweeney (n 44) 625. 42 43

determine what legal regime applies to a claimed feature,51 which, in turn, may see them revise and reduce their claims. In this sense, it might be said that the Award has set a ‘benchmark’.52 Guided by what is the ‘most authoritative articulation’ of Article 121 to date,53 states will be able to henceforth identify the characteristics that a feature must display for it to be upgraded from a ‘rock’ to an ‘island’. This is particularly important in the SCS, where there are some 600 reefs, islets and other protrusions in the Spratly Islands alone.54 It is therefore likely that the SCSA will have a significant precedential impact in relation to the maritime claims of other regional players.55 Secondly, in the event that disputes do occur, the Tribunal’s Award will assist judicial bodies in their efforts to peacefully resolve them. The Tribunal’s judgment serves as ‘a framework’ which future bodies may employ when determining whether features are rocks or islands.56 For instance, references to HTF do not appear in the text of the LOSC; instead the term was fashioned by the Tribunal to help compartmentalise its Article 121 determinations. Commentators suggest that it will be near impossible for any future judicial body to ignore the findings of the SCSA;57 for one, the Statute of the International Court of Justice (‘ICJ’) requires it to consider past judicial decisions.58 As such, whilst the decision may only bind the Philippines and China, it is likely to have wider ramifications. V

MISSED OPPORTUNITIES?

Nevertheless, this is not to say that the Award completely ameliorated Article 121’s ambiguities. Whilst the Tribunal’s decision is significant in theory, this significance is contingent to some extent on future state practice. A

High Tide

The Tribunal chose not to define ‘high tide’, which may undermine the clarity of the term ‘island’ given such features must sit above the water’s surface at high tide. The approach taken by the Tribunal, deemed ‘very liberal’, leaves open the possibility that states use a lower high-water datum to reduce the chances of a feature being deemed an LTE.59 In this sense, states may still seek to exploit Article 121 to generate extensive maritime claims. Indeed, in previous ‘borderline cases’ the datum employed by states has determined the legal status of a maritime feature.60 51 Tara Davenport, ‘Island-Building in the South China Sea: Legality and Limits’ (2018) 8(1) Asian Journal of International Law 76, 81. 52 Duncan French, ‘In the Matter of the South China Sea Arbitration: Republic of Philippines v People’s Republic of China, Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Law of the Sea Convention, Case No. 20132019, Award of 12 July 2016’ (2017) 19(1) Environmental Law Review 48, 55; Donald R Rothwell, ‘Assessing the Damage: The South China Sea Arbitration’, ANU College of Law – News and Events (News Post, 27 July 2016) <https://law.anu.edu.au/news-and-events/news/assessing-damage-south-china-sea-arbitration>. 53 Warwick Gillett, ‘The South China Sea Arbitration’s Contribution to the Concept of Juridical Islands’ (2018) 47 Questions of International Law 5, 37. 54 Davenport (n 51) 80. 55 Tara Davenport, ‘Legal Implications of the South China Sea Award for Maritime Southeast Asia’ (2016) 34 Australian Yearbook of International Law 64, 67. 56 Ted L McDorman, ‘The South China Sea Tribunal Awards: A Dispute Resolution Perspective’ (2018) 3(1) Asia-Pacific Journal of Ocean Law and Policy 134, 143. 57 Gillett (n 53) 37–38. 58 Statute of the International Court of Justice art 38(1)(d). 59 Youna Lyons, Luu Quang Hung and Pavel Tkalich, ‘Determining High-Tide Features (or Islands) in the South China Sea under Article 121(1): A Legal and Oceanography Perspective’ in S Jayakumar et al (eds), The South China Sea Arbitration: The Legal Dimension (Edward Elgar Publishing, 2018) 141. 60 Nuno S M Antunes, ‘The Importance of the Tidal Datum in the Definition of Maritime Limits and Boundaries’ (Briefing No. 7, International Boundaries Research Unit, Durham University, 2000); Yoshifumi Tanaka, ‘Low-Tide Elevations in International Law of the Sea: Selected Issues’ in Aldo Chircop (ed) Ocean Yearbook Online (Brill Nijhoff, 2006) 192.

State Practice

China has repeatedly stated it will not comply with the Tribunal’s Award, which certainly indicates that its significance in resolving the Philippines and China’s dispute has been minimal. Questions remain as to whether such non-compliance reduces the significance of the Award. States have expressed their support for the Award and pressed for Chinese compliance with it, perhaps showing that state practice is converging around the Tribunal’s interpretation of Article 121. However, in practice, states have tended to support the Tribunal’s interpretation insofar as it applies to China, but not necessarily in relation to their own claims. Australia, for instance, has vociferously supported the Tribunal’s ruling.61 Quite ironically, however, it has upheld dubious maritime claims itself, proclaiming an EEZ around Heard and McDonald Islands despite the International Tribunal for the Law of the Sea (‘ITLOS’) finding these features cannot support human habitation.62 Australia is one of many states that has upheld maritime claims that appear to ‘completely contradict’ the strict interpretation of ‘economic life’ and ‘human habitation’ proffered in the SCSA.63 However, the Tribunal did not consider Australia’s practice with respect to Article 121(3), nor the practice of many other states who have interpreted the provision liberally.64 Many scholars suggest this is a glaring weakness in the Award’s importance. 65 It might be argued that these liberal interpretations of Article 121 arose when there was no authoritative judicial clarification of the term’s meaning. However, at least so far, little has changed since the Award was handed down. Indeed, the available evidence suggests the Award’s influence has been ‘minimal or non-existent’.66 Various commentators have applied the Tribunal’s strict interpretation to a range of contested maritime features, with most finding that the claims of states would be downgraded if judicially reviewed.67 For instance, commentators suggest Japan’s Okinotorishima should be stripped of the legal status Japan accords it. Nevertheless, Japan has maintained its expansive claims and outwardly stated that the Award does not apply to Okinotorishima.68 If states continue to assert claims to features in defiance of the restrictive interpretation proffered by the Tribunal, then the significance of the Award as a whole might be substantially diminished.

Carl Thayer, ‘Australia Abandons its Neutrality on the South China Sea Maritime Disputes’, The Diplomat (online, 27 July 2020) <https://thediplomat.com/2020/07/australia-abandons-its-neutrality-on-the-south-china-sea-maritime disputes>. 62 Volga Case (Russia v Australia) (Application for Prompt Release) (International Tribunal for the Law of the Sea, Case No 11, 23 December 2002) [6]; Yoshifumi Tanaka, ‘Reflections on the Interpretation and Application of Article 121(3) in the South China Sea Arbitration (Merits)’ (2017) 48(3–4) Ocean Development & International Law 365, 373. 63 Myron H Nordquist, ‘UNCLOS Article 121 and Itu Aba in the South China Sea Final Award: A Correct Interpretation?’ in S. Jayakumar et al (eds), The South China Sea Arbitration: The Legal Dimension (Edward Elgar Publishing, 2018) 188; Saunders (n 49) 119. 64 South China Sea Arbitration (Award on Merits) (n 5) [522]-[523]. 65 Sondra Faccio, ‘Human Habitation or Economic Life of their Own: The Definition of Features Between History, Technology and the Law’ (2020) Liverpool Law Review 1, 7. 66 Gillett (n 53) 37. 67 Fayokemi A Olorundami, ‘Should the Diaoyu/Senkaku Islands Be Classified as Islands or Rocks? An Examination in Light of the South China Sea Arbitration Award’ (2019) 34(2) International Journal of Marine and Coastal Law 325; Saunders (n 49) 119; Tanaka (n 62) 373. 68 Klein (n 31) 28. 61

Size

Lastly, the SCSA failed to alleviate confusion as to whether a feature’s size is relevant in an Article 121 determination. Many suggest the ordinary meaning of ‘rock’ precludes it from applying to maritime features that are extremely large in size.69 Indeed, past jurisprudence reflects this view; the ICJ deemed Jan Mayen an island, despite it being completely dependent on external resources and it not supporting a stable community of residents.70 In concluding that that the feature could not be a ‘rock’, what was relevant was ‘its size alone’.71 A similar line of reasoning is used to explain ITLOS’s choice not to classify the uninhabited Heard Island a ‘rock’, given it occupies an area of 360km2.72 The size of disputed features did not trouble the Tribunal. Its conclusion that ‘size cannot be dispositive of a feature’s status’ reflects the fact that Article 121 makes no mention of size. 73 However, the factual circumstances of the SCSA made it easy for the Tribunal to circumvent the issue of size. The region is home to ‘small tropical islands’ which ‘differ remarkably’ from islands in other parts of the world.74 The largest feature the Tribunal considered was Itu Aba, with an area of some 40 hectares.75 On account of this fact, states will continue to invoke the examples of Jan Mayen and Heard Island to support their claims that the size of features may independently warrant their classification as ‘islands’. In this sense, the Tribunal’s judgment may fail to deter states from making expansive maritime claims. VI

CONCLUSION

It remains likely that states will continue to construe small maritime features to generate extensive maritime zones, thereby serving their interests. However, the SCSA has provided both states and judicial bodies with a reference point from which they can better assess the status of ‘islands’, ‘rocks’ and ‘artificial islands’ in the future. It is for this reason that the Tribunal’s Award is likely to have some significance with respect to the LOSC. In theory, much needed clarification regarding Article 121 may reduce the likelihood of interpretive disputes between states. Similarly, international fora may employ the Tribunal’s rationale to resolve such conflicts and reinforce the importance of its interpretation of Article 121. On the other hand, some of the states that have pressed for China’s compliance with the Award in recent months have maintained dubious claims to purported ‘islands’ themselves. In this sense, the significance of the Tribunal’s Award is at a critical juncture. It certainly has the potential to forge new, restrictive understandings of Article 121. However, if states uphold expansive claims to maritime features, then the Award’s efficacy may be dramatically undercut.

69 Stuart Kaye, ‘Assessing the Impact of the South China Sea Arbitration on Small Island States: A Case Study of Kiribati’ (2019) 34(4) International Journal of Marine and Coastal Law 778, 786; see also Alex G Oude Elferink, ‘The South China Sea Arbitration’s Interpretation of Article 121(3) of the LOSC: A Disquieting First’, The NCLOS Blog (Blog Post, 07 September 2016) <https://site.uit.no/nclos/2016/09/07/the-south-china-sea-arbitrations-interpretation-of-article-1213of-the-losc-a-disquieting-first/>. 70 Tanaka (n 62) 374. 71 Gjetnes (n 27) 193. 72 Kaye (n 69) 786. 73 South China Sea Arbitration (Award) (n 5) [538]. 74 Gillett (n 53) 37. 75 Nordquist (n 63) 176–204.

MEMBERSHIP OF A PARTICULAR SOCIAL GROUP: A FEMINIST APPRAISAL OF THE REFUGEE CONVENTION’S DOCTRINAL AND FUNCTIONAL LIMITATIONS IN ADDRESSING GENDER-BASED VIOLENCE Taynissa Vakeeswaran

INTRODUCTION

Membership of a particular social group (‘PSG’) under Article 1A(2) of the Convention Relating to the Status of Refugees (‘Convention’) is limited in its doctrinal portrayal and functional protection of refugees fleeing gender-based persecution. A critical intersectional feminist methodology reveals how current conceptions of PSG profoundly mischaracterise refugee women and genderbased violence.1 PSG and its potential to redress the protection gaps in refugee law is widely overestimated.2 This essay will seek to establish that the overreliance on PSG in gender-based persecution claims has reinforced existing protection gaps for women seeking asylum and will recommend alternatives. Part I of this essay will provide an overview of the varying interpretations of PSG taken by jurisdictions with a Convention-based refugee system. Part II of this essay will illustrate that the jurisprudence surrounding PSG has mischaracterised the nature of gender-based violence through a false legal narrative of private/public dichotomy in persecution. Part III will examine the Eurocentric conceptions of patriarchy and women that is pervasive throughout PSG jurisprudence. Finally, Part IV will suggest alternative methods of approaching gender-based violence refugee claims. II

THE LEGAL SCOPE OF PSG

The broad scope for the interpretation of PSG is both its asset and detriment. The interpretation of PSG under the Convention is known to be a particularly contested element of the refugee definition.3 This is largely due to the drafter’s legislative silence on the purpose of the phrase and its lack of immediately apparent ‘ordinary meaning’.4 This ambiguity allows for jurisdictions to extend the protections traditionally afforded to refugees under the Convention, but conversely leads to inconsistent and confusing jurisprudence of PSG. Foster provides a comprehensive analysis of the global interpretations of PSG and identifies two leading interpretations.5 The first is the ejusdem generis, or protected characteristics, approach, which has been adopted in the majority of common law jurisdictions.6 This test is considered the broader of the two and uses the textual context of Article 1A(2) to interpret PSG in a purposively consistent manner. The United States Board of Immigration Affairs in Re Acosta identified the

Deborah Anker, ‘The History and Future of Gender Asylum Law and Recognition of Domestic Violence as a Basis for Protection in the United States’ (2020) 45(2) Human Rights 14, 15–16. 2 Simona Zavratnik and Sanja Cukut Krilić, ‘Addressing Intersectional Vulnerabilities in Contemporary Refugee Movements in Europe’ (2018) 34(87) Druzboslovne Razprave 85, 87. 3 Michelle Foster, ‘Why We Are Not There Yet: The Particular Challenge of Particular Social Group’ in Efrat Arbel, Catherine Dauvergne and Jenni Millbank (eds), Gender in Refugee Law: From the Margins to the Centre (Routledge, 2014) 17, 18. 4 Ibid. 5 Ibid 20. 6 Canada (Attorney General) v Ward [1993] 2 SCR 689, 739 (‘Ward’); Refugee Appeal No 1312/93, Re GJ [1995] 1 NLR 387; Refugee Appeal 71427/99 [2002] NZAR 545 [93]–[102]; Fang v Refugee Appeal Board [2006] ZAGPHC 101; Regina v Immigration Appeal Tribunal Ex Parte Shah [1999] 2 AC 629, 656–7 (‘Shah’). 1

commonality of the other grounds for persecution as ‘common, immutable characteristics’.7 Hence the ejusdem generis interpretation requires only that the applicant share a common characteristic with other purported members of the PSG that is ‘so fundamental to individual identity or conscience’ that the member cannot, or should not, be forced to renounce it.8 The second interpretation is the ‘social perception’ test, which first emerged independently in both Australian and French jurisprudence.9 This test arose from an ‘ordinary meaning’ reading of the Convention in Applicant A v Minister for Immigration and Ethnic Affairs and subsequently in Applicant S v Minister for Immigration and Multicultural Affairs (‘Applicant S’). The High Court in Applicant S decided that membership of a PSG requires a shared, identifiable characteristic with the other members of the group that ‘distinguishes the group from society at large’.10 The French equivalent requires evidence that the ‘authorities in the country and…society in general’ perceive the group as distinct.11 The protected characteristics test imposes a higher burden on the applicant than the ejusdem generis approach, and has been criticised as an overly restrictive interpretation.12 The divergence in PSG interpretation led to the inconsistent application of PSG creating a phenomenon scholars call ‘refugee roulette’.13 Having claims examined under PSG grounds creates extreme uncertainty for refugee women who are arbitrarily afforded protection dependent on the country they arrive in.14 To remedy the disjointed international refugee law regime, the United Nations High Commissioner for Refugees (‘UNCHR’) released the Social Group Guidelines (‘Guidelines’) in 2002.15 In the Guidelines the UNCHR announced that the aforementioned approaches to PSG interpretation were to be considered complementary, and affirmed the unified approach in their subsequent guidelines.16 Unfortunately, multiple global jurisdictions, including European Union members like Germany, have misinterpreted the guidelines as recommending a cumulative test.17 The cumulative test approach requires both Re Acosta 19 I & N 211, 233 (Board of Immigration Appeals, 1985) (‘Acosta’). Ward (n 6) 736-737; Acosta (n 7) 23., 9 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 241; Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387, 397–400 (‘Applicant S’); Ourbih, Conseil d’Etat [French Administrative Court], decision no 171858, 23 June 1997 reported in [1997] Rec Lebon (‘Ourbih’). 10 Applicant S (n 9) 400. 11 Ourbih (n 9). 12 Foster (n 3) 33. 13 See generally, Jaya Ramji-Nogales, Andrew I Schoenholtz and Philip G Schrag, ‘Refugee Roulette: Disparities in Asylum Adjudication’ (2007) 60(2) Stanford Law Review 295. 14 Foster (n 3) 38. 15 United Nations High Commissioner for Refugees, Guidelines On International Protection: ‘Membership of a particular social group’ within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, Doc HCR/GIP/02/02 (7 May 2002) [11], [20] (‘UNHCR Social Group Guidelines’). 16 United Nations High Commissioner for Refugees, Guidelines On International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, Doc HCR/GIP/02/01 (7 May 2002) [11], [13]; United Nations High Commissioner for Refugees, Guidelines On International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked, Doc HCR/GIP/06/07 (7 April 2006) [37]–[39]; United Nations High Commissioner for Refugees, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, Doc HCR/GIP/09/08 (22 December 2009) [48]–[52]; United Nations High Commissioner for Refugees, Guidelines On International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, Doc HCR/GIP/12/09 (23 October 2012) [45]. 17 Hessischer Verwaltungsgerichtshof (VGH) [Hessen Higher Administrative Court], 21 February 2008; VGH, 3UE 455/06.A, 10 April 2008; Verwaltungsgericht (VG) München [Munich Administrative Court], M 24 K 07.50603, 6 November 2007; VG SchleswigHolstein [Schleswig-Holstein Administrative Court], 4 A 244/05, 20 November 2006 [all cases tr Anne Kallies]; Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Orotection Granted (repealed) [2004] OJ L 304/12, art 10(1); Council Directive 2011/95/EU of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, 7 8

ejusdem generis and social perception requirements be satisfied, creating an unprecedented two-tiered hurdle for those claiming PSG membership.18 Conversely, progressive developments in PSG jurisprudence have arisen in other jurisdictions.19 Canada is considered the leader in gender-sensitive approaches to refugee law. La Forest J in Canada (Attorney General) v Ward clarified that the Convention displayed an explicit antidiscrimination and human rights focus that led his Honour to interpret the Immigration and Refugee Protection Act, SC 2001 in a manner that upholds the drafter’s intention.20 Through this lens, La Forest J came to the conclusion that gender was a possible PSG in itself.21 Moreover, the appellate court in Dezameau v Canada (Minister of Citizenship and Immigration) held that the crimes of sexual assault and rape were essentially gendered and were to be characterised as such in refugee claims.22 Canadian decisions have also set a precedent for recognising domestic violence as a human rights violation in a manner than many jurisdictions recognise forced prostitution and state-sanctioned rape.23 III

RE-EVALUATING THE PRIVATE-PUBLIC DICHOTOMY OF PERSECUTION

Gender-based persecution has been extensively misinterpreted in PSG jurisprudence. Genderbased violence is best understood as systemic violence perpetuated against women to assert and reinforce their subservience in patriarchal systems.24 Domestic violence, female genital mutilation, honour killings, sexual assault and rape are all instances of gender-based violence.25 Defining gender-based violence in structural terms is necessary to understand the incongruity of the private-public dichotomy of persecution ingrained in the Convention and refugee law with the reality faced by refugee women facing gender-based violence.26 The Australian decision of Minister for Immigration and Multicultural Affairs v Khawar (‘Khawar’) recognises that women can constitute a PSG independently when the State is shown to withdraw protection and when a pattern of discriminatory treatment can be proven.27 This interpretation puts Australia in league with Canada and New Zealand for broader protections offered to women, and at odds with the German, French and Swiss interpretations, which preclude this form of attribution to the State.28 Gleeson CJ’s judgment can be construed as the most expansive PSG conceptualisation of the case. He emphasised the size and cohesiveness of the PSG was irrelevant to whether women could be considered a persecuted group because ‘[i]t is power, not number, that creates the conditions in which persecution may occur’.29 However, the judgment still relies on the presumption that the abuse suffered by Mrs Khawar is inherently ‘private’ in nature and

for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (recast) [2011] OJ L 337/9, art 10(1)(d). 18 Foster (n 3) 24; Melanie Randall ‘Particularized Social Groups and Categorical Imperatives in Refugee Law: State Failures to Recognize Gender and the Legal Reception of Gender Persecution Claims in Canada, the United Kingdom, and the United States’ (2015) 23(4) American University Journal of Gender, Social Policy and the Law 529, 536. 19 Foster (n 3) 25–28. 20 Ward (n 6) 739. 21 Ibid. 22 Dezameau v Canada (Citizenship and Immigration) (2010) 1 FC 559 [34]–[35], [41]. 23 Narvaez v Canada (Minister of Citizenship and Immigration) [1995] 2 FC 55; Randall (n 18) 542. 24 Randall (n 18) 531. 25 Audrey Macklin, ‘Refugee Women and the Imperative of Categories’ (1995) 17(2) Human Rights Quarterly 213, 247. 26 Nora Honkala, ‘“She, of Course, Holds No Political Opinions”: Gendered Political Opinion Ground in Women’s Forced Marriage Asylum Claims’ (2017) 26(2) Social and Legal Studies 166, 170; Sara Dehm and Anthea Vogl, ‘Migration Law and Women: Gendering Australia’s Migration Program’ (2018) 144 Precent 22, 25. 27 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, 13 [31]. 28 Udara Jayasinghe, ‘Women As “Members of A Particular Social Group” Some Flexible Judicial Developments’ (2006) 31(2) Alternative Law Journal 79, 81. 29 Khawar (n 27) 13 [33].

domestically motivated.30 Doctrinally this renders uncertainty for many refugee women seeking asylum as it makes protection contingent on the unspecific consideration of independent country information of structural lack of protection and personal interactions where the State has withdrawn protection from them.31 Callinan J in dissent expressed the general tradition in Australian jurisprudence to characterise gender-based violence as a private, individualised occurrence. His Honour refers to the domestic violence faced by Mrs Khawar as marital ‘disharmony’ and continues to state that no nexus could be established between the persecution and her membership of a PSG as the domestic violence was because her husband’s family ‘disliked her personally’.32 Despite this conclusion, Callinan J characterises the persecution faced by Mrs Khawar as due to her inability to bear a son and her status as her husband’s property among other factors.33 Respectfully, Callinan J misconstrued the nature of the persecution faced by Mrs Khawar and ignored evident gendered relations. Callinan J most pertinently characterises this understanding when he compares the ‘reluctance of the police’34 to assist Mrs Khawar with the ‘lack of enthusiasm in the authorities’ to assist Australian survivors of domestic abuse.35 For many, the disconnect between the ‘common sense’ understanding of gendered violence37 by, predominantly male, legal elites and the welldocumented and researched reality of women globally is a cause for concern.38 Decision-makers globally have demonstrated an aversion to presenting domestic violence and sexual assault as based solely on gender.39 Due to such aversion, Randall identifies how administrators and judiciaries force refugee women into ‘constructed sub-divisions of gender’.40 Due to the highly constructed nature of these sub-divisions, the PSG of refugee women is often inconsistently constructed throughout a case. McHugh and Gummow JJ in their joint judgment in Khawar noted that ‘at its narrowest, married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by members of the household’ was the narrowest PSG conception that would be possible.41 Judiciaries exhibit a trend of adding unnecessary, circular and illogical qualifiers to PSG characterisations such as, ‘women in Turkey who are victims in abusive relationships or victims of abuse at the hand of rejected suitors, in circumstances where agents of the state, including the police, are unable or unwilling to provide protection’.42 This has led to inconsistency within cases and the characterisation of certain PSGs as defined by their own persecution.43 Even with consistent high-level legal recognition of women as PSGs, low-level decision makers have shown a strong reluctance to accept such claims. Canadian empirical studies have shown that jurisprudential progress often does not translate to greater protections for refugee women.44 30 Angela Wood, ‘Legal Theories of the State and Membership 2002 Case Analysis: Minister for Immigration and Multicultural Affairs v Khawar’ (2002) 11(2) Griffith Law Review 497, 502. 31 Ibid. 32 Khawar (n 27) 45 [140]–[141]. 33 Khawar (n 27) 45 [142]; Wood (n 30) 501. 34 Khawar (n 27) 47 [152]. 35 Ibid 46–7 [149]. 37 Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501, 515–16 [53] (Justice Hill). 38 Catherine Hunter, ‘Khawar and Migration Legislation Amendment Bill (No 6) 2001: Why Narrowing the Definition of a Refugee Discriminates against Gender-Related Claims’ (2002) 8(1) Australian Journal of Human Rights 107, 118. 39 Randall (n 18) 544. 40 Ibid. 41 Khawar (n 27) 28 [81]. 42 Efrat Arbel, ‘The Culture of Rights Protection in Canadian Refugee Law: Examining the Domestic Violence Cases’ (2013) 58(3) McGill Law Journal 729, 760 citing Re UEK [2003] RPDD 442 (QL) 1. 43 Macklin (n 25) 246. 44 Azar Masoumi, ‘The Politics of “Doing Exactly Nothing”: Feminist Legal Change and Bureaucratic Administration of Refugee Protection’ (2019) 27(3) Feminist Legal Studies 243, 244.

Masoumi highlights how seemingly distinct bureaucratic processes in Canada effectively discriminated against women and their access to protection, despite the release of the Immigration and Refugee Board (‘IRB’) Gender Guidelines and other seemingly progressive trends in jurisprudence.45 Arbel’s survey of 645 reported Canadian decisions supports this claim and notes how decision-makers systemically failed to incorporate progressive court judgments.46 For instance, despite La Forest J’s clear depiction of domestic violence as a human rights violation, only 15 decisions over a 20-year period adopted the same conceptualisation.47 Due to this, the narrow approach to PSG was commonly adopted in domestic violence cases, requiring a list of highly specific and often contradictory qualifiers to the PSG of ‘women’.48 Australian decision-making shows a similar disconcerting trend.49 Domestic violence in still widely considered a individualised form of harm and in recent Administrative Appeals Tribunal decisions, gender has been widely ignored as a grounds for violence in favour of highly constructed groups such as women ‘with mental illness in India’.50 Even when a PSG is established, decision makers often refuse to accept a sufficient nexus between gendered persecution and ‘significant harm’ due to a dismissal of the systemic nature of their unique position.51 Examining the implementation of PSG in recent gender-based persecution claims across lower decision-making stages illustrates the lingering hostility of decision-makers towards accepting gender-based violence refugee claims despite seemingly progressive jurisprudence. Due to the inconsistency found in the majority of jurisdictions in accommodating gender-based violence claims to suit a PSG, some advocates suggest the inclusion of a sixth category of gender is the most effective way to remedy to gender protection gap for women seeking asylum. 52 This conception is not without critics and will be required to overcome a particularly unsupportive international legal background that is unwilling to expand the refugee definition.53 Hence, efforts to address gender-based violence claims in refugee law have focused on interpretation of the five existing grounds for persecution.54 There has been a widespread advocacy for legislators to explicitly add ‘women’ as a recognised category of PSGs.55 The judgment delivered by Lord Hoffman in Islam; Ex parte Shah (‘Shah’) has been heralded by Goodwin-Gill as ‘a model in jurisdictions … which either have opted out of providing protection to refugees, or have chosen the narrow path to protection, through interminable and unconvincing essays in sub-division’.56 Lord Hoffman in Shah characterised domestic violence as a State persecution by analogising to the treatment of Jewish Germans in 1935 and the similar withdrawal of State protection to groups based on race and gender alone.57 Further, some South American jurisdictions already recognise gender as an independent

Ibid. Arbel (n 42) 729. 47 Ibid 747. 48 Ibid 749. 49 Hunter (n 38) 119–20. 50 1603428 (Refugee) [2018] AATA 5412 [48], [64]; see also 1621469 (Refugee) [2020] AATA 3185; 1704872 (Refugee) [2021] AATA 1103. 51 1611861 (Refugee) [2020] AATA 5604 [142]–[143], [152]–[153]. 52 Mayers v MEI (1992) 97 DLR (4th) 729; Macklin (n 25) 245–6. 53 Honkala (n 26) 167. 54 Ibid. 55 Randall (n 18) 539. 56 Guy S Goodwin-Gill, ‘Judicial Reasoning and “Social Group” after Islam and Shah’ (1997) 11(3) International Journal of Refugee Law 537, 537. 57 Shah (n 6) 653–4. 45 46

Convention grounds.58 However, global recognition is largely limited to non-binding statements and guidance materials due to an overwhelming ‘floodgates’ concern.59 IV

RACIAL BIAS IN PSG APPLICATION

Even progressive approaches to interpreting PSG, such as the Canadian approach, have displayed doctrinal limitations in its conception of women and society in the Global South. The structural nature of gender-based violence is often construed in a Westernised manner that focuses on liberal values and ignores cultural nuance. Deeply held cultural perceptions of Arab and developing countries undermine the progressive nature of the decisions and legislation that identify women as a PSG. New Zealand adopted a structural conception of gender-based violence in Refugee Appeal No 2039/93 Re MN (‘Re MN’), where ‘women in Iran’ was held to be a cognisable group by society and the Iranian State authorities.60 Re MN characterises ‘Arab society in Iran…as a patriarchal society’.61 The perception of Iran as a deeply patriarchal society, largely due to its illiberal conceptions of family and Islamic ideology, in Re MN leaves plenty of ambiguity about the boundaries of that definition.62 Similarly, in Shah, the Court of Appeal specifically referred the application of Sharia criminal law as ‘merciless’ and ‘dreadful’.63 The House of Lords in Shah followed this reasoning using an Amnesty International Report on the treatment of women in Pakistan.64 Women fleeing domestic violence from nations considered developed have struggled to fit the definition of a member of a PSG despite displaying similar situations of state authorisation, police negligence and patriarchal structures. The recent Federal Court case DZG17 v Minister for Immigration and Border Protection,65 highlights the misunderstandings that are entrenched through PSG characterisation. A Canadian woman from British Columbia reported decades of family sexual abuse and domestic violence. The applicant cited various omissions to intervene by Canadian authorities despite her requests for assistance.66 Both the delegate and Greenwood J on appeal accepted that she was a member of a PSG, specifically, of ‘women survivors of sexual abuse in Canada’.67 However the applicant’s claim failed on account of no real chance of persecution being found in Canada, in accordance with independent country information, including the US State Department Human Rights Report from 2014 that indicated intolerance towards official corruption and government commitment against child sexual abuse, among credibility concerns.68 Such characterisations of developed States counters the reality of domestic and sexual violence faced by women globally. Despite Australia exhibiting similar characteristics of general lack of corruption and official commitment against domestic violence, the systemic incidence of it is rife.69 This is partly because gender-based violence is often related not only to

Foster (n 3) 26. Karen Musalo, ‘Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action’ (2007) 14(2) Virginia Journal of Social Policy and the Law 119, 132. 60 Refugee Appeal No 2039/93 Re MN [1996] NZRSAA 43, 51. 61 Ibid 7. 62 See generally, Iris Wigger, ‘Anti-Muslim Racism and the Racialisation of Sexual Violence: “Intersectional Stereotyping” in Mass Media Representations of Male Muslim Migrants’ (2019) 20(3) Germany, Culture and Religion 248. 63 R v. Immigration Appeal Tribunal and Secretary of State for the Home Department, ex parte Shah, [1997] Imm AR 145 (Waite LJ). 64 Shah (n 6) 635–6. 65 DZG17 v Minister for Immigration and Border Protection (2019) 167 ALD 330 (‘DZG17’). 66 Ibid 333 [7]. 67 Ibid 336 [25]. 68 Ibid 336 [26], 344 [75]. 69 See generally Mandy Shircore, Heather Douglas, and Victoria Morwood ‘Domestic and Family Violence and Police Negligence’ (2017) 39(4) Sydney Law Review 539. 58 59

the lack of assistance provided by the state but by the patriarchal structural inequalities and cultural attitudes and practices.70 In this sense, PSG jurisprudence has regressive doctrinal limits and implications. Intersectional feminist scholarship has further condoned the categorisation of women as a cohesive, homogenous group.71 Such characterisation removes the nuanced experience of refugee women, and brushes over the diversity of cultural, economic, and ethnic backgrounds.72 For instance, the systemic violence faced by First Nations Australian women and Indigenous Canadian women are often highly different from the treatment of their non-Indigenous counterparts.73 V

ALTERNATIVES TO PSG

In Refugee Appeal No 76044, Haines QC provides a brief examination of the imperative of preventing claims based on political opinion ‘to masquerade as persecution based on social group’.74 He criticises the ‘unthinking application’ of the Convention in Shah as producing the unintended result that all gender-based violence claims are now considered PSG case without adequate consideration of the power structures in the country of origin of the applicant.75 This ultimately provides fewer options to potential applicants and leads to an almost automatic failure of their claim if they are unable to satisfy PSG grounds. A survey of forty-two European countries illustrates that the reliance on PSG has led to overlooking the gendered nature of political resistance.76 The 2008 UNCHR Handbook for the Protection of Women and Girls notes the overreliance on PSG in gender-based violence claims has ignored the relevant political opinion grounds available for women opposing discriminatory practices and violence in their country of origin.77 The identification of ‘political opinion’ as the strongest applicable Convention grounds in Re MN, was a critical factor in the success of the applicant.78 Overall, PSG reliance impedes on the gender-sensitive interpretation of the remaining Convention grounds including religion, and particularly political opinion. Further, the use of PSG can be seen as a removal of the agency of refugee women in legal jurisprudence – reaffirming the victimhood narrative of women. The use of PSG depoliticizes the resistance of women to gender-based persecution and characterises their experiences as cultural and social.79 This reduces women to passive actors in global politics and victims of patriarchy instead of ‘agents of social change’.80 Wood delineates how legal language undermines the agency of women, and can ‘locate women within an abstracting, objectifying narrative that is removed from their lived experiences of subjugation and oppression’.81 The practical effect of See generally Ella Kuskoff and Cameron Parsell, ‘Preventing Domestic Violence by Changing Australian Gender Relations: Issues and Considerations’ (2020) 73(2) Australian Social Work 227; see also Susmitha B., ‘Domestic Violence: Causes, Impact and Remedial Measures’ (2016) 46(4) Social Change 602. 71 Hilary Charlesworth, ‘Feminist Methods in International Law’ (1999) 93(2) American Journal of International Law 379, 383. 72 Ibid. 73 Paulina Garcia-Del Mora, ‘The Murders of Indigenous Women in Canada as Feminicides: Toward a Decolonial Intersectional Reconceptualization of Femicide’ (2018) 43(4) Journal of Women in Culture and Society 929, 930. 74 Refugee Appeal No 76044 [2008] NZRSAA 80 [73]. 75 Ibid [72]. 76 Heaven Crawley and Trine Lester, Comparative Analysis of Gender-Related Persecution in National Asylum Legislation and Practice in Europe, EPAU/2004/05 (May 2004) [300]. 77 United Nations High Commissioner for Refugees, UNHCR Handbook for the Protection of Women and Girls (January 2008) 137 [4.2.6]. 78 Re MN (n 60) 50. 79 Honkala (n 26) 172. 80 Zavratnik and Krilić (n 2) 87. 81 Wood (n 47) 499. 70

such victimhood narratives is a misunderstanding of the nature of gendered-violence and the normalisation of ‘feminised notions of vulnerability’ which has led to the denial of protection to refugee women.82 At higher levels, such misunderstandings reinforce countries of refuge as free from structural gendered violence, and at lower decision-making stages this misunderstanding removes the agency of refugee women.83 VI

CONCLUSION

The development of PSG to recognise the unique position of women in society demonstrates a global progress in understanding the nature of gender-based violence as systemic. However, the overreliance on PSG in gender-based violence refugee claims poses a multitude of issues for refugee women. The broad scope of PSG jurisprudence creates uncertainty and additional risk to the refugee process for women fleeing gender-based violence. The depoliticisation of their persecution affirms the legal narrative of refugee women as passive victims. Characterising ‘women’ as a PSG further misrepresents women as a homogenous group and discounts the impact of intersecting identities. Moreover, the use of PSGs in gender-based violence claims reaffirms Western judicial bias against developing nations and distorts the reality of gender-based violence in the developed world. The conflicting feminist conceptions of the best way to address the needs of refugee women demonstrates the true complexity of the issue, but overall a pursuit into the potential of the ‘political opinion’ grounds for persecution has been widely recommended and remedies many of the issues faced with PSG jurisprudence.84 Hence, though PSG jurisprudence has helped some refugee women, overall there are still many concerns with its doctrinal assumptions and functional applications that obstruct the comprehensive protection of refugee women.

Zavratnik and Krilić (n 2) 87. Ezgi Sertler, ‘Politics of Epistemic Dependence: An Epistemological Approach to Gender-Based Asylum’, (Dissertation No. 10839372, Michigan State University, 2018) 1. 84 Anker (n 1) 17. 82 83

AGAINST THE GRAIN? ASSESSING JAPAN’S SHIFT IN AGRICULTURAL PROTECTIONISM* Siena Hopkinson Japan has been able to maintain its non-economic rationales for agricultural protectionism to a large degree in the World Trade Organization (‘WTO’) sphere. However, it has, in recent years, increasingly had to make liberalisation concessions in order to pursue regional free trade agreements (‘FTAs’). These have been pursued with the aim of achieving economic revitalisation in the face of Japan’s ongoing economic slump. This essay will first consider how Japan has leveraged concerns of cultural and landscape preservation, food security and safety to carve out caveats for its entrenched regime of agricultural protections in the Uruguay Round negotiations for General Agreement on Tariffs and Trade 1994.1 It will then examine how Japan has used the considerable exceptions to market liberalisation in the resulting Agreement on Agriculture (‘AoA’)2 to legally maintain a significant degree of protection for its ‘sacred’ agricultural sectors (rice, wheat, barley, beef, pork, dairy and sugar); and for JA-Zenchu (‘JA’), its politically powerful national agricultural cooperative union. As the subsequent WTO Cancun and Doha Rounds, aimed at further liberalising agriculture, have stalled, Japan has not been under WTO pressure to further adapt. Nonetheless, in the last decade, chinks have begun to appear in its agricultural armour. In its final section this essay will analyse how the stalling of the WTO has catalysed many nations to pursue Free Trade Agreements (‘FTAs’) as a way forward. Though initially reluctant to follow suite, Japan’s reliance on trade for other sectors of its economy, in conjunction with former Prime Minister Abe Shinzo’s economic revitalisation plans (colloquially known as ‘Abenomics’), have led to concessions in agriculture to ensure access to FTAs. This significant change in approach has manifested in Japan’s championing of the Comprehensive and Progressive Trans-Pacific Partnership Agreement (‘CPTPP’), which entered into force in 2018. Consequently, this essay argues that internal economic woes have been the primary catalyst for Japan overturning its agricultural protectionist measures centred on non-economic justifications, rather than WTO factors. I

THE EXTENT OF JAPAN’S AGRICULTURAL PROTECTIONISM

Free trade has been a substantial factor in Japan’s remarkable economic growth post World War Two. As a result, it has a strong commitment to multilateralism and the WTO system.3 As a densely populated island nation, Japan is highly reliant on food imports. It has the lowest ratio of food self-sufficiency among developed nations, with only 40 percent of its calorie intake coming from domestic sources.4 Nonetheless, Japan has retained a high degree of protectionism for its sacred agricultural sectors, particularly rice. Following Japan’s 1999 ‘tariffication’ pursuant to the AoA, rice imports have been

This article was written prior to the resignation of Prime Minister Yoshihide Suga. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘General Agreement on Tariffs and Trade 1994’). 2 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on Agriculture’) (‘AoA’). 3 Australian Government’s Department of Foreign Affairs and Trade and the Japanese Government’s Ministry of Foreign Affairs and Trade, Joint Study into the Costs and Benefits of Trade and Investment Liberalisation between Australia and Japan (20 April 2005) 83 (‘Joint Study’). 4 Rolf Möhler, ‘The European Community and Japan Negotiating Agriculture in the Uruguay Round Trade Negotiations’ in Jörn Keck, Dimitri Vanoverbeke and Franz Waldenberger (eds), EU-Japan Relations, 1970–2012 (Routledge, 2013) 255, 257; Masayoshi Honma, ‘WTO Negotiations and Other Agricultural Trade Issues in Japan,’ (2006) The World Economy 29(6) 697, 701 (‘WTO Negotiations and Other Agricultural Trade Issues’). *

subject to a tariff rate quota (‘TRQ’),5 with an out of quota ad valorem tariff of 778 percent.6 Under Japan’s Law for Stabilization of Supply-Demand and Price of Staple Food, the Japanese government is responsible for purchasing all rice, wheat and barley imports, and setting (namely marking up) the price at which they are resold to the domestic market.7 Furthermore, under measures such as the gentan seisaku (Acreage Reduction Policy) system operating since 1971, farmers have been directly paid to plant crops other than rice in order to reduce production and stabilise prices.8 Wheat imports are subject to a 252 percent ad valorem tariff rate, and sugar 379 percent.9 Similar to grains, dairy products are imported by the state Agriculture and Livestock Industries Corporation (‘ALIC’), then resold to the domestic market, subject to mark ups.10 Such heavy protectionism in agricultural imports stands in marked contrast to Japan’s aggressive export strategy, notably in consumer electronics, machine tools and cars, that has formed the foundation of its post-World War Two flourishing.11 Moreover, the agricultural sector comprises a low proportion of the Japanese economy, at just over 1 percent of Gross Domestic Product (‘GDP’) and 4.4 percent of the labour force.12 In contrast, the industrial sector, including of the automobile and electronics industries, comprised 30 percent of GDP in 2017.13 Arguably such a disparity between its import and export standards, and its reliance upon both, makes Japan’s protectionist agricultural stance vulnerable to scrutiny in multilateral trade negotiations. It appears economically irrational for Japan to maintain such protections globally, given they might jeopardise its critical export sector. Nevertheless, during the Uruguay Round negotiations for the AoA, Japan was largely successful in preserving its core elements of agricultural protectionism by drawing on non-economic justifications for its policy, despite pressures to liberalise.14 In its negotiation proposals, Japan insisted upon the importance of nontrade concerns for agriculture, particularly food security and the multifunctionality of roles played by agriculture in society.15 II

THE CORE NON-ECONOMIC RATIONALES

Japan’s non-economic rationales for agricultural protectionism can be broadly characterised as relating to its domestic culture, food security, food safety and biosecurity. Particular reverence is given to domestic rice, which is deemed to carry a ritualistic importance to the national identity.16 Rice growing, with a history of over 2300 years in Japan,17 is intrinsically interwoven with early 5 Certificate of Modifications and Rectifications to Schedule XXXVIII – Japan, WTO Doc WLI/101 (27 November 2000) notes to Section 1-B of Part 1; Australian and Japanese Governments, Joint Study (n 2) 88. 6 Mireya Solis, ‘Can FTAs deliver market liberalisation in Japan? A study on domestic political determinants’ (2010) 17(2) Review of International Political Economy 209, 225. 7 Law For Stabilization Of Supply Demand And Price Of Staple Food (Japan) Act No. 113 of 1994 [‘Law For Stabilization Of Supply Demand And Price Of Staple Food (Act No. 113 of 1994)’ Cabinet Office (Web Summary) <https://www8.cao.go.jp/kisei-kaikaku/oto/otodb/english/houseido/hou/lh_9999-11.html>]; Joint Study (n 3) 88. 8 Gen Shoji, Kunimitsu Yoshida and Satoshi Yokoyama, ‘Government Interventions and Part-time Family Farming’ in Eric Thompson, Jonathan Rigg and Jamie Gillen (eds), Asian Smallholders in Comparative Perspective (Amsterdam University Press, 2019) 81, 82. 9 Solis (n 6) 225. 10 Joint Study (n 3) 89. 11 Möhler (n 4) 257. 12 Masayoshi, ‘WTO Negotiations and Other Agricultural Trade Issues’ (n 4) 706. 13 Central Intelligence Agency, ‘GDP — Composition, by Sector of Origin’, World Factbook (Reference Database) < https://www.cia.gov/the-world-factbook/field/gdp-composition-by-sector-of-origin/>. 14 Möhler (n 4) 255. 15 Synoptic Table of Negotiating Proposals Submitted Pursuant to Paragraph 11 of the Mid-Term Review Agreement on Agriculture, WTO Doc MTN.GNG/NG5/W/150/Rev.1 (2 April 1990) (Note by the GATT Secretariat). 16 Chandler H Udo, ‘Japanese Rice Protectionism: A Challenge for the Development of Agricultural Trade Laws’ (2008) 31(1) Boston College International and Comparative Law Review 169, 173 (‘Rice Protectionism’). 17 Ibid.

Japanese history and national creation myths.18 Wet-rice cultivation is perceived to be the economic foundation of the Yamato State and was a priestly function of the Emperor.19 Much drunk nihonshu (rice wine) directly translates as the ‘liquor of Japan’; evidence of its nationalistic connotations. Rice paddies, often depicted in woodblock prints and haikus from the Edo Period, 20 are perceived as an integral part of the Japanese landscape and Japanese city dwellers often retain a nostalgic attachment of to the notion of an agrarian hometown.21 As a result, there is a strong preference to maintain rural landscapes,22 reflected in the multifunctionality of agriculture argument. Consequently, a consumer ethnocentrism prevails in Japan, under which it is deemed inappropriate or even immoral to purchase foreign rice for fear of damaging domestic production.23 This patriotism accounts for why Japanese consumers willingly tolerate the higher rice price that protectionism brings. Despite Japanese consumers giving an estimated ¥5 trillion (AU$65 billion) on average to Japanese farmers annually, historically there has been little push back from Japanese urbanites in respect of domestic rice protection.24 Indeed, surveys of Japanese consumers indicate a vehement palate preference for domestically grown short-grain rice over foreign varieties such as United States (‘US’) and South Asian grown long-grain.25 Such pride sees the majority of imported rice brought under Japan’s WTO minimum foreign access quota used in animal feed, stockpiled or re-exported as food aid.26 Moreover, given Japan’s high reliance on imports for its calorific intake, there is an ongoing concern and debate as to its food security, food safety and biosecurity. The Law for the Stabilisation of Supply — Demand and Price of Staple Food is thus deemed an essential price stabilisation measure. Japanese consumers raise concerns as to the use of pesticides and genetically modified organisms in foreign imports — leading to labelling tensions with the US.27 Japan equally enforces a significant degree of phytosanitary measures to address biosecurity concerns. III

STRENGTH OF THE AGRICULTURAL SECTOR’S POLITICAL LOBBY

Though these cultural rationales are given publicly for Japan’s agricultural protectionism, the measures take their sacredness and untouchability in part from the political clout of the JAZenchu. Consolidated in the Second World War recovery period, the JA has monopolistic control over all elements of rice farming in Japan, from price control, banking and loans to farmers, to supply of fertilisers, insurance and warehouse storage.28 It has a significant interest in maintaining the status quo, in which it obtains a commission from every rice sale.29 Though Japan’s rural demographic is shrinking, it has been a mainstay of the incumbent Liberal Democratic Party’s (‘LDP’) support for decades. The JA and the farmers that it represents have historically been aided by the electoral structure in Japan, under which rural electorates retained significant power

Emiko Ohnuki-Tierney, ‘Structure, Event and Historical Metaphor: Rice and Identities in Japanese History’ (1995) 1(2) Journal of the Royal Anthropological Institute 227, 228 (‘Rice and Identities’). 19 Ibid. 20 Ibid 229. 21 Linda Wojtan, Rice: It’s More than Food in Japan (Japan Digest, November 1993). 22 Gen, Kunimitsu and Satoshi (n 7) 83. 23 Ken Chinen, ‘Relations among Ethnocentrism, Product Preference and Government Policy Attitudes: A Survey of Japanese Consumers’ (2010) 27(1) International Journal of Management 107, 108. 24 Jarrod Hayes and Hirofumi Kawaguchi, ‘Economics, Culture, and Electoral Reform: The Case of Japanese Agricultural Trade Negotiations’ (2015) 41(3) Japanese Political Economy 80, 84. 25 Chinen (n 23) 108. 26 Philip Brasor, ‘The Sticky Subject of Japan's Rice Protection’ Japan Times (Tokyo, 20 February 2011). 27 Hayes and Hirofumi (n 24) 90. 28 Nicole L Freiner, Rice and Agricultural Politics in Japan — The Loss of a Traditional Lifestyle (Palgrave Macmillan, 2019) 81. 29 Leo Lewis, ‘Japan: End of the Rice Age’ Financial Times (London, 22 September 2015). 18

despite significant urbanisation post-World War Two. As a result, a tribe of Diet members strongly supportive of agricultural interests has emerged,30 known as the nōrin zoku.31 Though the 1994 electoral reform saw the JA’s electorate foundation decline, it has retained political favour.32 IV

JAPAN’S SUCCESS AT THE WTO LEVEL IN MAINTAINING AGRICULTURAL SUPPORTS

Consequently, there has been little change in Japan’s WTO negotiating position on agriculture, despite the 1994 electoral reforms.33 This ongoing political support for agricultural protectionism flies in the face of economic logic given that Japan’s majority of urban dwellers are transferring significant sums to this very small sector of the economy. It emphasises that cultural and food security factors remain significant to Japanese consumers, more so than economic concerns. The Japanese government has leveraged these non-economic rationales to successfully maintain its protectionist measures and domestic subsidies supporting the JA’s interests, by adapting them to the requirements of the AoA. In negotiating the AoA, developed nations with strong agricultural sector interest groups, including Japan and the European Union (‘EU’), were able to insert ‘loopholes’ for their domestic agricultural support, by way of the ‘amber’, ‘blue’ and ‘green’ box categorisation system of subsidies; the latter two being support measures that are theoretically non-trade distortive and thus allowed. In preparation for the outcome of AoA, Japan restructured a number of its agricultural supports to fall within its parameters. During the 1990s, it implemented a raft of new legislation. For example, in 1999 the Diet enacted the Basic Law for Food, Agriculture and Rural Areas, replacing the long-standing Agricultural Basic Law of 1961.34 The new Basic Law introduced market prices for farm products, while emphasising food security (Article 2), multifunctionality (Article 3) and maintaining agricultural landscapes (Article 4).35 As a result of these reforms, Japan’s spending on ‘green box’ measures, notably rural infrastructure programs, rocketed by 30 percent in period 1995 to 1998.36 To date, Japan is the second highest user of green box measures amongst WTO members in terms of expenditure, after the US.37 The US, EU and Japan’s annual spending cumulatively comprises 78.9 percent of all WTO members’ spending on green box measures,38 indicating that such a loophole considerably favours developed, rather than developing nations. Moreover, even under the tariffication principles of the AoA, Japan’s rice quota remains small and the out of tariff quota prohibitively high. Domestic rice, alongside other agricultural commodities, has retained effectively the same level of protection as before. As of 2000, imports for none of the sacred five had increased dramatically despite Japan’s adaptions to the AoA.39

The Diet is Japan’s legislative assembly. Aurelia George Mulgan, ‘Where Tradition Meets Change: Japan’s Agricultural Politics in Transition’ (2005) 31(2) Journal of Japanese Studies 261, 263. 32 Hayes and Hirofumi (n 24) 80. 33 Ibid. 34 Tokuzoh Mishima, ‘Revision of Japan’s Basic Law on Agriculture and Its Features’ (2004) 60 Review of Agricultural Economics 259, 259. 35 Food, Agriculture and Rural Areas Basic Act (Japan) Act No. 106 of July 16, 1999 [‘Food, Agriculture and Rural Areas Basic Act (Act No. 106 of July 16, 1999)’ Japanese Law Translations (Web Document) <http://www.japaneselawtranslation.go.jp/law/detail_download/?ff=09&id=2339>]. 36 Zhao Yumin, Wang Hongxia and Linxuegui Mayu, Green Box Support Measures under the WTO Agreement on Agriculture and Chinese Agricultural Sustainable Development (Report, May 2004) 19. 37 Ibid 8. 38 Ibid. 39 Masayoshi Homna, ‘The New Agricultural Basic Law and Trade Policy Reform In Japan’ (2000) 300 Asia Pacific Economic Papers 65, 66. 30 31

Japan has largely not been challenged on its agricultural measures in the WTO. The main cases that have come against them have been concerning the Sanitary and Phytosanitary Measures Agreement.40 For example, the Japan — Measures Affecting the Import of Apples and Japan — Measures Affecting Agricultural Products cases, both brought by the US, were in respect of quarantine measures on fruit.41 Nonetheless, developing nations have criticised the AoA for heavily favouring developed interests. This developed-developing nation tension is partly why subsequent negotiations for further liberalisation during the Cancun and Doha Rounds have stalled. Given the stalling of these negotiations, Japan has not been forced to further adapt its measures by the WTO sphere. V

FTAS: CHINKS IN THE AGRICULTURAL ARMOUR

However, in the face of the stalling WTO, developed nations in particular are increasingly pursuing FTAs to advance the liberalisation cause externally.42 Japan was initially slow to adopt such an approach. This reluctance is partly due to its allegiance to the WTO, and likewise in part due to being handcuffed by its agricultural policies in bilateral negotiations with food exporting partners such as the US and Australia. As a result, its first forays into economic partnership agreements (‘EPAs’) were low stakes, with smaller trading partners that were not food exporters: Singapore (2002) and Mexico (2005).43 Nonetheless, Japan is increasingly showing chinks in its commitment to agricultural protectionism. In 2015, Japan entered into a historic Economic Partnership Agreement with Australia44 (‘JAEPA’), proclaimed to be its most liberalising trade agreement yet. Under JAEPA, Japan has committed to eliminating tariffs on a number of the sacred products, including animal feed barley and wheat, some dairy products and raw sugar, as well as committing to reducing tariffs on beef for Australian exporters.45 In 2013, it joined negotiations for the Trans-Pacific Partnership Agreement (‘TPP’). Upon the US’s withdrawal from the TPP in 2016, Japan championed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Agreement as a successive agreement. This active role signals a dramatic shift in approach for a nation so previously averse to FTAs. The CPTPP grants further tariff reductions on beef, dairy products (including the complete abolition of the cheese tariff) and greater access for rice products.46 Arguably, in the face of an increasingly contracting economy, Japan can no longer afford to give such favour to non-economic rationales. Since the ‘lost decade’ of the 1990s, and especially since the steep decline in trade associated with the 2008-09 global financial crisis, Japan’s economy has faced weak growth, deflation and a high level of public sector debt.47 Former Prime Minister Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on the Application of Sanitary and Phytosanitary Measures’). 41 Appellate Body Report, Japan — Measures Affecting the Importation of Apples, WTO Doc WT/DS245/AB/R (26 November 2003); Appellate Body Report, Japan — Measures Affecting Agricultural Products, WTO Doc WT/DS76/AB/R (22 February 1999). 42 Masayoshi, ‘WTO Negotiations and Other Agricultural Trade Issues’ (n 4) 705. 43 Mireya Solis, Dilemmas of a Trading Nation: Japan and the United States in the Evolving Asia-Pacific Order (Brookings Institution Press, 2017) 132. 44 Agreement between Australia and Japan for an Economic Partnership, signed 8 July 2014, [2015] ATS 2 (entered into force 15 January 2015). 45 Australian Government Department of Foreign Affairs and Trade, ‘JAPEA Outcomes at a Glance’, Japan-Australia Economic Partnership Agreement (Fact Sheet, August 2018) 1 <https://www.dfat.gov.au/sites/default/files/jaepa-factsheet-outcomes-at-a-glance.pdf>. 46 Australian Government Department of Foreign Affairs and Trade, ‘CPTPP Outcomes at a Glance’ Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) (Fact Sheet, January 2019) 1 <https://www.dfat.gov.au/sites/default/files/cptpp-outcomes-at-a-glance.pdf>. 47 Daniel Harari, Japan’s Economy: From the ‘Lost Decade’ to Abenomics (British Parliamentary Research Briefing, Standard Note SN06629, 24 October 2013) 1. 40

Abe Shinzo’s ‘Abenomics’ economic revitalisation plan introduced in 2012 rests on three core pillars, of which structural reform is one.48 Structural reform includes greater trade liberalisation, manifested in Japan’s 2013 entry into TPP negotiations.49 It also includes agricultural sector reform.50 Mr Abe’s commitment to such reform is illustrated in the significant changes he made to domestic agricultural supports that were a bastion for the JA and his LDP party for decades. He sought to destroy the ‘iron triangle’ of vested interests between the JA, Ministry of Agriculture, Forestry and Fisheries and the LDP, by implementing significant reforms to JA’s structure and power base. In 2013, as part of entering TPP talks, he committed to phasing out the gentan seisaku system, in operation since 1971, enabling farmers to make their own management decisions as to rice production. His successor, current Prime Minister Suga Yoshihide, has remained faithful to Mr Abe’s economic approach. These domestic reforms have not been catalysed by multilateral WTO pressures, but rather Japan’s own initiatives to pursue FTAs with its major trade partners for economic reasons. They have faced significant domestic push back, and a significant level of protectionism remains at present. Nevertheless, the reforms suggest that ultimately, economic concerns have begun to win out over the non-economic, and at times economically irrational rationales. While the underlying cultural and food security concerns are likely to remain, recent moves signal that they are to be addressed independently of the interests of the agricultural lobbyist sector. VI

IMPACTS OF THE COVID-19 PANDEMIC

The full effect that the COVID-19 pandemic and the subsequent recession have had on Japan’s public support for embracing further liberalisation and globalisation remains to be seen. Nevertheless, initial signs would suggest that the pandemic has not radically altered these attitudinal trends. The Japanese government implemented a number of agricultural and trade support measures with the onset of COVID-19. For example, it paid eligible farmers to supply excess produce caused by restaurant closures to food banks, amongst other cash allowances;51 it increased support payments for Wagyu beef farmers;52 and it compensated dairy farmers for income lost from the suspension of school meals.53 However, similar support measures have been common amongst many countries globally during the pandemic to ensure food security and economic stability; they do not necessarily indicate a return to strict agricultural protectionism. Moreover, Japan temporarily relaxed technical regulations in the food and agricultural sector, such as requirements around food labelling.54 It has joined a number of WTO Joint Ministerial Statements committing, albeit in a non-binding fashion, to refrain from trade-restrictive measures during the pandemic.55 Furthermore, Prime Minister Suga has continued to champion FTAs during this period. Japan signed the Regional Comprehensive Economic Partnership (‘RCEP’) in November 2020 and was one of the first parties to ratify it in June 2021. RCEP contains agricultural

Ibid. Ibid 11. 50 Masayoshi Honma and Aurelia George Mulgan, ‘Political Economy of Agricultural Reform in Japan under Abe’s Administration’ (2018) 13(1) Asian Economic Policy Review 128, 128. 51 Food and Agricultural Organization of the United Nations, Agricultural trade & policy responses during the first wave of the COVID-19 pandemic in 2020 (2021) 23. 52 Ibid 38. 53 Ibid. 54 Ibid 21. 55 See, eg, Responding to the COVID-19 Pandemic with Open and Predictable Trade in Agricultural and Food Products, WT/GC/208 G/AG/30 (22 April 2020) (Ministerial Joint Statement). 48 49

liberalisation commitments — though Japan, in its Schedule to the agreement continues to preserve some tariff reservations in sacred sectors such as dairy.56 In conclusion, Japan has been able to maintain its non-economic rationale for agricultural protectionism to a large extent in the WTO system, due to the skewing of the AoA towards developed parties’ interests. However, its commitment to protectionism appears to be waning, evidenced by its commitments to JAEPA, the TPP/CPTPP, RCEP and accompanying domestic reforms. Pursuing FTAs that require agricultural concessions comes partly in response to the stalling of the WTO, and partly in response to Japan’s own economic woes.

Regional Comprehensive Economic Partnership signed 15 November 2020, [2021] ATNIF 1 (not yet in force) art 2.13.

THE EFFECTS OF RISING SEA-LEVELS ON THE MARITIME BOUNDARIES OF PACIFIC ISLAND NATIONS Alice Read I

INTRODUCTION

Climate change is one of the most serious threats to humanity.1 Among its many consequences, sea-levels have risen by over 0.19 metres since the 20th century and will continue to rise at an accelerating rate.2 Pacific Island nations are particularly vulnerable to the effects of climate change induced sea-level rise, which has been named the ‘single greatest threat to the livelihoods, security and wellbeing of the peoples of the Pacific’ by the Pacific Islands Forum (‘PIF’).3 On the current interpretation of the United Nations Convention on the Law of the Sea (‘UNCLOS’),4 maritime boundaries will move landward as rising sea-levels encroach on coastlines.5 PIF stated in their contribution to the report by United Nations (‘UN’) Secretary-General on sea level rise and its impacts, that the ‘preservation of existing maritime zones and the entitlements that flow from PIF members is essential for global stability and to ensure the sustainable development of the states in the Blue Pacific Region’.6 Rising sea-levels have a direct effect on the position of maritime boundaries which, in turn, has implications for security and legal stability. This report will firstly detail the regional impacts of sea-level rise with reference to the case study of Kiribati. Second, it will analyse the implications for the law of the sea. Third, it will evaluate proposed solutions. Fourth, will discuss the consequences for maritime entitlements should an entire population relocate. II

IMPACTS OF RISING SEA-LEVELS ON LAND TERRITORY

The rate that the sea-level is rising varies regionally.7 The Intergovernmental Panel on Climate Change (‘IPCC’) estimates that global mean sea-level will rise between 0.29m to 0.59m under Representative Concentration Pathway (‘RCP’) 2.6, and between 0.61m and 1.1m under RCP 8.5.8 Rising mean and extreme sea-levels are threatening coastal zones through permanent submergence of land by higher mean sea-levels.9 Small island communities located in the tropical Western Pacific experienced sea-level rise rates of up to four times the global average between 1993 and 2009.10 As low-lying island nations, Pacific Island States are especially vulnerable to the

1 Intergovernmental Panel on Climate Change, The Ocean and Cryosphere in a Changing Climate (Special Report, 2019) 323. 2 United Nations Climate Security Mechanism, Toolbox Briefing Note, 2020, 2. 3 ‘Boe Declaration on Regional Security’, Pacific Islands Forum (Declaration, 5 September 2018) <https://www.forumsec.org/2018/09/05/boe-declaration-on-regional-security/>. 4 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1883 UNTS 3 (entered into force 16 November 1994) (‘UNCLOS’). 5 Stockholm Climate Security Hub, Climate, Ocean and Security: Response to Ocean-Driven Security Challenges (Report, 4 February 2021) 3. 6 Pacific Islands Forum, ‘Pacific Islands Forum’s Contribution to the Report of the United Nations Secretary-General on the Sea-Level Rise and Its Impact Open-Ended Informal Consultative Process on Oceans and the Law of the Sea’ (Contribution Paper, United Nations, Open-Ended Information Consultative Process on Oceans and the Law of the Sea, 2020) 8. 7 Intergovernmental Panel on Climate Change, The Ocean and Cryosphere in a Changing Climate (Special Report, 2019) 324. 8 Ibid. A Representative Concentration Pathway is a greenhouse gas concentration trajectory which makes predictions of how concentrations of greenhouse gases in the atmosphere will change in the future as a result of human activities. The RCPs are 2.6, 4.5, 6.0 and 8.5. RCP 8.5 is very high and RCP 2.6 is very low. RCPs have been adopted by the IPCC. 9 Ibid 328. 10 Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, ‘UN-OHRLLS Contribution to the SG Report on Oceans and the Law of the Sea, on the Theme “Sea-

sea-level rise which threatens their economies and populations.11 For the Pacific Island States of Kiribati, Marshall Islands and Tuvalu, 95% of their populations live on land that has an elevation of 5 metres or less.12 Atoll States, such as Kiribati, are the most vulnerable class of States to sealevel rise because of their high coastline to land ratio, their high population densities and their low levels of available resources.13 A

Kiribati

Kiribati (Figure 1) is often considered the most at risk State from sea-level rise. It is estimated that 18-80% of land in Buariki, North Tarawa and up to 50% of land in Bikenibeu, South Tarawa could become inundated by 2050.14 All infrastructure and the entire population are concentrated along the coast with South Tarawa being an ‘magnet’ for migration from the outer islands.15 The capital of South Tarawa has a population density similar to that of Tokyo or Hong Kong.16 This population pressure is encroaching on the water reserve as well as causing water contamination from housing and agriculture.17 Loss of territory will only lead to more movement to the capital, which will further increase the population density and lead to more encroachment on water reserves and contamination. With an average elevation of 1.8 metres, in the most extreme case of a one metre rise in the sea-level, two-thirds of Kiribati could be inundated by 2100, leaving the State uninhabitable.18

Figure 1: Map of Kiribati19

Level Rise and Its Impacts”’ (Contribution Paper, United Nations, Open-Ended Information Consultative Process on Oceans and the Law of the Sea, January 2020) 1. Intergovernmental Panel on Climate Change, The Ocean and Cryosphere in a Changing Climate (Special Report, 2019) 7. 12 Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States (n 10) 1. 13 Jon Barnett and W Neil Adger, ‘Climate Dangers and Atoll Countries’ (2003) 61 Climatic Change 321, 323. 14 Government of Kiribati, Intended Nationally Determined Contribution (Report, 21 September 2016) 4. 15 Ibid. 16 ‘Kiribati’ COP23 Fiji UN Climate Change Conference (Web Page, 2017) <https://cop23.com.fj/kiribati/>. 17 Ibid. 18 Ibid. 19 Government of Kiribati, Kiribati Joint Implementation Plan for Climate Change and Disaster Risk Management (Report, 2014) 13. 11

III

EFFECTS OF SEA-LEVEL RISE ON MARITIME BOUNDARIES

UNCLOS governs a State’s maritime entitlements, aiming to achieve ‘a legal order for the seas and oceans’ which ‘will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources’.20 A State’s maritime entitlements consist of the various maritime zones that States are able to claim. These zones are the internal waters, and then the territorial sea, the contiguous zone, the Exclusive Economic Zone and in some cases the continental shelf measured from the baseline as indicated in Figure 3.

Figure 3: Maritime Zones Diagram21 A

United Nations Convention on the Law of the Sea

The internal waters are those on the landward side of the baseline of a State’s territorial sea.22 States have complete enforcement jurisdiction over foreign vessels in their internal waters.23 The normal baseline for determining the breadth of the territorial sea of a State ‘is the low-water line along the coast’.24 Archipelagic States can also rely on Article 47 which defines archipelagic baselines allowing them to be drawn by joining the outmost islands and reefs of the archipelago provided the area of water to land is between one to one and one to nine.25 Kiribati is a declared archipelagic State but has not drawn straight archipelagic baselines.26 The territorial sea can extend up to 12 nautical miles from this baseline.27 Like the internal waters, the State can exercise sovereignty over their territorial sea but foreign vessels have a right to innocent passage.28 UNCLOS (n 4) preamble para 4. The Fletcher School, Tufts University, ‘Maritime Zones’, Law of the Sea: A Policy Primer (Web age, 2017) <https://sites.tufts.edu/lawofthesea/chapter-two/>. 22 Ibid art 8. 23 International Law Commission, Sea-level rise in relation to international law: First issues paper by Bogdan Aurescu and Nilüfer Oral, Co-Chairs of the Study Group on sea-level rise in relation to international law, 72nd sess, UN Doc A/CN.4/740 (28 February 2020), 62 (‘ILC First Issues Paper’). 24 UNCLOS (n 4) art 5. 25 Ibid art 47. 26 Donald Rothwell and Tim Stephens, The International Law of the Sea (Hart Publishing, 2nd ed, 2016) 198. 27 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1883 UNTS 3 (entered into force 16 November 1994) art 3. 28 ILC First Issues Paper (n 23) 57. 20 21

The contiguous zone can extend 24 nautical miles from the baseline.29 In this zone, a State can exercise control to ‘prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea’ and ‘punish infringement of the above laws and regulations committed’.30 Adjacent to the contiguous zone is the Exclusive Economic Zone (‘EEZ’) which cannot exceed 200 nautical miles from the baseline.31 In the EEZ, a State has ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources’.32 The EEZ is the most valuable zone for States and the zone’s outer limit usually makes up a State’s maritime boundary. B

Boundaries in the Pacific

Maritime boundaries are the national borders of Pacific Island states.33 These boundaries are critical for sovereignty, identity, and natural resource management as well as enabling the enforcement of fisheries rights or the protection of the maritime environment in the EEZ.34 Changes to maritime entitlements risk creating ‘uncertainty, instability and the possibility of dispute’.35

Figure 4: Maritime Boundaries in the Pacific36

UNCLOS (n 4) art 33(2). Ibid art 33(1). 31 Ibid art 57. 32 Ibid art 56(1)(a). 33 Ibid. 34 Ibid 2. 35 ILC First Issues Paper (n 23) 69. 36 ‘Pacific Islands Regional Maritime Boundaries: Supporting Pacific Islands to Delimit, Negotiate, and Declare Their Maritime Boundaries since 2001’ Pacific Community (Factsheet, 2020) 1 <https://tinyurl.com/footnote34> (‘Pacific Islands Regional Maritime Boundaries’). 29 30

The Pacific contains many overlapping and undelineated maritime boundaries. The Pacific States have 48 shared or overlapping boundaries shown in Figure 4.37 Shared boundaries require negotiation of a bilateral agreement to establish the boundary. As of June 2020, 35 boundaries had been formalised leaving 13 outstanding bilateral boundaries to negotiate and five high seas boundaries to be declared.38 Establishing maritime zones is timely and costly because of the legal and technical complexity,39 particularly for developing Pacific Island States.40 This cost is compounded where boundaries must be negotiated with third States.41 C

Effect of the Current UNCLOS Interpretation

UNCLOS was drafted when the effects of sea-level rise had not been fully realised. Consequently, normal baselines are interpreted as ambulatory which means baselines will change as the position of low-water lines change due to permanent inundation of coastal areas as a result of sea-level rise.42 New baselines recede landward, resulting in the outer limits of a State’s maritime zones also receding landward.43 Furthermore, the ability of land and marine features, such as low elevation islands, atolls, sandbars, rocks and reefs, to define maritime zones are also at risk.44 The loss of these features due to inundation is likely to have drastic effects on maritime zones as they have allowed States to extend their maritime entitlements further, especially in the case of archipelagic baselines drawn from outer islands and reefs. The combination of smaller baselines and the loss of other land and marine features due to sea-level rise will result in a significant decrease in the area of a State’s maritime entitlements overall as each maritime zone moves landward. Additionally, if baselines and outer limits of maritime zones change, the legal status and legal regime of the maritime zones will change as well.45 This will in turn affect the legal stability and predictability of UNCLOS.46 Part of the EEZ will become the contiguous zone, part of the contiguous zone will become the territorial sea, and part of the territorial sea will become internal waters. One of the most significant effects would be that the change in the EEZ would result in the State losing significant sovereign rights to explore, conserve and manage natural resources in certain areas.47 1

Kiribati

Kiribati is classified as both a Small Island Developing State (‘SIDS’) and a Least Developed Country (‘LDC’).48 The effects of shrinking maritime zones, in particular the EEZ, have a significant effect on Kiribati’s economy if it will still have territory to sustain maritime entitlements. The economy is heavily dependent on the rich marine resources it has access to for employment, income and subsistence living.49 Kiribati depends almost entirely on the fishing sector for food and revenue.50 It also possesses an abundance of ocean resources including seaweed,

Pacific Islands Regional Maritime Boundaries (n 36) 1. Ibid. 39 ILC First Issues Paper (n 23) 68. 40 Ibid. 41 Ibid. 42 International Law Association Committee on International Law and Sea-Level Rise, Sydney Conference: International Law and Sea Level Rise (Report, 2018) 11. 43 I ILC First Issues Paper (n 23) 25. 44 Pacific Islands Regional Maritime Boundaries (n 36) 2. 45 ILC First Issues Paper (n 23) 27. 46 Ibid. 47 Ibid 65. 48 Government of Kiribati, Kiribati Joint Implementation Plan for Climate Change and Disaster Risk Management (Report, 2014) 8. 49 Ibid. 50 ‘Kiribati’ COP23 Fiji UN Climate Change Conference (Web Page, 2017) <https://cop23.com.fj/kiribati/>. 37 38

manganese nodules and cobalt-rich crusts.51 Therefore, the consequences of a smaller EEZ could be dire for Kiribati as the areas they could fish and extract resources could substantially decrease leading to a decline in revenue, available food and overall Gross Domestic Product (‘GDP’). Further, 35% of GDP is already spent on climate change related risks, which in turn affects their ability to fund climate adaptation and resilience initiatives.52 IV

PROPOSED SOLUTIONS

Freezing Boundaries and Baselines

The Stockholm Climate Security Hub discussed three potential legal responses to the problem of shrinking maritime boundaries. The first is to fix baselines, and as a result, outer limits.53 Freezing baselines would mean that current maritime zones, measured from the baseline, and their boundaries would be fixed. Practically, as sea-level rises with fixed baselines, a State’s internal waters would increase as indicated in Figure 5. All other maritime entitlements would remain the same, subject to the frozen baseline. This results in limited change to the current UNCLOS and international legal order.

Figure 5: Legal Response 1: Freezing baselines (and outer limits)54 The second response is to freeze outer limits and expand the territorial sea limit.55 The boundary of the territorial sea, EEZ and high sea would remain fixed. However, the baseline would move landward as the coastline became inundated. This has the practical effect of expanding the territorial sea landward beyond 12 nautical miles as depicted in Figure 6. The expansion of the territorial sea would then be incompatible Article 3 of UNCLOS.

Government of Kiribati, Kiribati Joint Implementation Plan for Climate Change and Disaster Risk Management (Report, 2014) 17. 52 Government of Kiribati, Intended Nationally Determined Contribution (Report, 21 September 2016) 3. 53 Stockholm Climate Security Hub, Climate, Ocean and Security: Response to Ocean-Driven Security Challenges (Report, 4 February 2021) 4. 54 Ibid 6. 55 Ibid 4. 51

Figure 6: Legal Response 2: Freezing outer limits and expanding territorial sea limit56 The third response is to freeze the outer limits and expand the limit of the EEZ.57 The baseline would remain ambulatory, the territorial sea would remain at a breadth of 12 nautical miles from the baseline but the EEZ would expand past its 200 nautical mile limit as indicated in figure 7. The expansion of the EEZ would increase the ocean area where States have sovereign rights to fish and extract natural resources which could be of economic benefit to States. However, it would be incompatible with Article 57 of UNCLOS.

Figure 7: Legal Response 3: Freezing outer limits and expanding the EEZ limit58 The international community is largely in support of the first option proposed by the Stockholm Climate Security Hub. The International Law Commission has produced a first issues paper on sea-level rise in relation to international law. Its preliminary conclusions recommended ‘the best

Ibid 6. Ibid 4. 58 Ibid 6. 56 57

option would be the preservation of maritime entitlements’.59 This would entail maintaining boundaries as they currently stand. The International Law Association Committee on International Law and Sea-Level Rise (‘ILACILSR’) noted in their Resolution 5/2018 that the State practice of small island States indicated practice consistent with option one.60 The ILA-CILSR endorsed the position that baselines should not be required to be recalculated if sea-level rise changed coastlines.61 They further endorsed the proposal that the interpretation of UNCLOS for maintaining maritime boundaries should also apply to boundaries that have been delineated by international agreement, or courts and tribunals.62 This proposal allows for current baselines and maritime entitlements to remain fixed as long as they have been delineated in accordance with UNCLOS. PIF has endorsed an almost identical approach to the ILA-CILSR and urged all Pacific States to adopt it in domestic legislation. In PIF’s Kainaki II Declaration for Urgent Climate Change Action Now, PIF wanted to ‘ensure that once a Forum Member’s maritime zones are delineated in accordance with the 1982 United Nations Convention on the Law of the Sea (UNCLOS), that the Member’s maritime zones could not be challenged or reduced as a result of sea level rise and climate change’.63 B Best Implementation for the Solution Attempting to amend UNCLOS has the potential to create significant instability in the law which would contradict the core purpose of UNCLOS. Therefore, solutions that maintain the core rules of UNCLOS would be preferrable. The first legal solution proposed by the Stockholm Climate Security Hub and preferred by PIF should be implemented. It would entail the least disruption to the established international legal order and would effectively address the issue while maintaining the stability UNCLOS has provided. In addition to promoting predictability and stability in the legal order, it would help ameliorate national, economic and food security concerns. Most importantly, it would help preserve the territorial sovereignty of a nation and prolong its existence. Adopting a UN General Assembly resolution has been suggested as an option for maintaining maritime zones, especially since Pacific Islands States are developing regional customary norms permitting the fixing of baselines.64 The aim would be to turn a regional norm into an international norm. States with a stake in UNCLOS, such as Nordic States like Norway, can assist the Pacific Islands to gain international support and develop international law to implement the solution proposed by PIF and other international organisations. The UN is primarily a coordinating body; each individual State will need to establish this as a priority to effect the change needed. However, organisations such as PIF and the Pacific Community should be driving the change as collective bodies that represent some of the most affected States.

ILC First Issues Paper (n 23) 69. International Law Association Committee on International Law and Sea Level Rise, Sydney Conference Resolution 5/2018 (Resolution, 2018) 1. 61 Ibid. 62 Ibid. 63 Pacific Islands Forum, Fiftieth Pacific Islands Forum Communiqué, PIF(19)14, 16 August 2019, 13 (‘Kainaki II Declaration for Urgent Climate Change Action Now’). 64 Karen Scott, ‘Rising Seas and Pacific Maritime Boundaries’, Australian Outlook (Forum Post, 3 September 2018) <https://www.internationalaffairs.org.au/australianoutlook/rising-seas-and-pacific-maritime-boundaries/>. 59 60

CONSEQUENCES OF ENTIRE POPULATION MIGRATION

As a climate adaptation measure, countries could buy land for their populations to move to if their territory became uninhabitable. The Kiribati Government in 2014 purchased Natoavatu Estate which is located within Fiji’s second biggest island of Vanua Levu.65 At this stage the land will not be used to relocate i-Kiribati nationals from Kiribati to Fiji but could potentially represent a place for relocation as a last resort. It does raise the question of whether Kiribati will lose all maritime entitlements should they permanently relocate. There is some international jurisprudence that favours maintaining maritime entitlements even if a country becomes uninhabitable. This is because ‘the preservation of maritime entitlements for islands that lose their capacity to sustain human habitation or an economic life of their own due to sea-level rise…would only maintain existing [rights]’.66 This could be relied on by Kiribati if they were forced to move but retained some land territory. In the case of complete submergence, the literature recognises that the current law on baselines is inadequate to address the serious problem of total territorial loss due to sea-level rise.67 Total loss of territory leads to a total loss of baselines and the maritime zones measured from them.68 Therefore, if Kiribati completely disappeared, they would not be able to claim any maritime entitlements under the current legal order. Further, given the fundamental link between land and maritime entitlements under UNCLOS, even if maritime boundaries and baselines were frozen, it is likely that Kiribati would lose all maritime entitlements under the amended legal order. Natoavatu Estate does not include any accompanying maritime entitlements, only the land itself. Therefore, if it ever became a place of residence for i-Kiribati nationals, they would be subject to international law and Fiji’s sovereign rights over its maritime zones as would any other third state. VI

CONCLUSION

This report finds that if the current regime of maritime boundaries based on ambulatory baselines remains unchanged, it will create substantial issues for the sovereignty, economic security and food security of Pacific Island States and the stability of the international order the law of the sea supports. Therefore, this report recommends current maritime boundaries and baselines should be maintained in the face of sea-level rise through a customary international law approach. Maintaining boundaries as they currently stand would ensure the least disruption to UNCLOS and current legal order. Further research needs to be conducted to complement the findings of this report as while finalising maritime boundaries is a necessary step to securing the sovereignty, economic security and food security in the Pacific, it is not sufficient. The maritime zones that have been declared must then be managed and controlled effectively. 69 This becomes much more than a legal question; it becomes a resource and cooperation question. Despite States exercising sovereignty

65 Government of Kiribati, ‘Kiribati Buys a Piece of Fiji’ (Press Release, 30 May 2014) <http://www.climate.gov.ki/2014/05/30/kiribati-buys-a-piece-of-fiji/>. 66 International Law Commission, Sea-Level Rise in Relation to International Law: First Issues Paper by Bogdan Aurescu and Nilüfer Oral, Co-Chairs of the Study Group on Sea-Level Rise in Relation to International Law, 72nd sess, UN Doc A/CN.4/740 (28 February 2020) 79. 67 International Law Association Committee on International Law and Sea-Level Rise, Sydney Conference: International Law and Sea Level Rise (Report, 2018) 11. 68 Ibid. 69 Joeli Veitayaki, ‘Securing Coastal Fisheries in the Pacific: Critical Resources for Food, Livelihood and Community Security’ (2021) 82 Development Bulletin 56, 57.

over maritime zones, oceans are a ‘common good’. Consequently, any sustainable solution requires collective international efforts.

COMMUNITARIAN NECESSITY: THE UNLIKELY PROSPECT OF EVOLUTION FROM LEX FERENDA TO LEX LATA Keshav Karupiah I

INTRODUCTION

As borne out in Article 25 of the International Law Commission’s (‘ILC’) Articles on State Responsibility (‘ASR’),1 the plea of necessity operates as a circumstance precluding the wrongfulness of an internationally wrongful act. The defence may be enlivened in a situation where ‘the sole means by which a State…can safeguard an essential interest threatened by a grave and imminent peril’ is to temporarily suspend the application of its obligations protecting a lesser or minor interest.2 Where a State meets the cumulative3 criteria stipulated by Article 25, breach of the international obligation in question is negated and the State does not bear international responsibility for the generating act whilst the state of necessity persists. Though invariably invoked by States for the safeguarding of the State’s own essential interests, there exists the possibility that States can avail themselves of the plea for the safeguarding of an essential interest of the international community as a whole. This possibility derives from the drafting of Article 25(1)(a) as well as the ILC’s accompanying commentary: ‘The extent to which a given interest is ‘essential’ depends on all the circumstances, and cannot be prejudged. It extends to particular interests of the State and its people, as well as of the international community as a whole’.4 Whether the plea can in practice be invoked in this latter communitarian vein will hinge upon its customary status given that the ASR is a soft law instrument. However, the ILC indicated that whilst Article 25’s coverage of the traditional plea for safeguarding a State interest was reflective of customary international law (‘CIL’),5 the communitarian aspect of the plea was in progressive development.6 On its face, this proposition appears incongruous with the constitutive process of CIL. The dual North Sea Continental Shelf 7 criteria prescribe that ‘the acts concerned amount to a settled practice, [and] there must also be...evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’.8 In the context of the communitarian plea, there is arguably greater consensus surrounding what constitutes an essential interest of the international community than an essential interest of one State alone, which is undefined and highly subjective. As such, the communitarian plea would in theory be less likely to face protest from other States and its existence on the customary plane should logically precede or at least be contemporaneous with the customary crystallisation of the traditional plea. The salient question then becomes: since United Nations General Assembly (‘UNGA’) took note of the ASR in 2001, is there any possibility that the communitarian plea has crystallised as CIL and if not, what is preventing it from doing so? This essay will answer the former in the negative by highlighting that it is because of the combined effect of the existing difficulties embodied in the

1 Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UN Doc A/RES/56/83 (28 January 2002, adopted 12 December 2001) annex (‘Responsibility of States for Internationally Wrongful Acts’) (‘ASR’). 2 Sarah Heathcote, ‘Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Necessity’ in James Crawford et al (eds) The Law of International Responsibility (Oxford University Press, 2010) 491. 3 Gabčíkovo–Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7, 40 (‘Gabčíkovo’). 4 ‘Report of the Commission to the General Assembly on the work of its fifty-third session’ (2001) 2(II) Yearbook of the International Law Commission 1, 83 (‘ILC Commentary’) (emphasis added). 5 Ibid 82. See especially Gabčíkovo (n 3) 40–1. 6 ILC Commentary (n 4) 80–3. 7 North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Judgment) [1969] ICJ Rep 3 (‘North Sea Continental Shelf’). 8 Ibid 44.

textual strictness of Article 25 and the practical impediments to discerning the plea’s content, that have cultivated adverse conditions for generating the requisite State practice for the communitarian plea’s crystallisation. Moreover, the lack of convergent understanding amongst States as to the broader principle underpinning the communitarian plea deprives it of the necessary opinio juris to ground it on the customary plane. Before turning to these matters, it is first necessary to consider the impetus for the ILC’s decision to import this communitarian aspect into the plea of necessity. II

RATIONALISING THE COMMUNITARIAN PLEA

Early 20th century State practice surrounding necessity’s invocation was inextricably linked with ‘achieving power-political ends in disregard of the principle of sovereign equality of States’.9 Consequently, in its report on the work of its 51st session, the ILC determined that ‘in order to prevent abuse, [necessity] should be formulated with very strict conditions and limitations upon application’.10 Perhaps to aid in tempering this realpolitik normative disposition, the ILC sought to import an exculpatory communitarian element into the law on state responsibility. States would be encouraged to identify matters of global interest and in turn be permitted to unilaterally act to protect them where they were threatened. The ILC was perhaps seeking to catalyse a departure from the fundamental rights of States orthodoxy,11 and spur momentum towards the countervailing ethos of cooperation and community that had been established under the auspices of the United Nations. Whilst this may evoke Friedmann’s rhetoric surrounding international law’s move from a law of coordination to a law of cooperation,12 it is impossible to know precisely what broader principle underpins the communitarian plea as the Commission gave very little guidance.13 The fact that the ILC made provision for the protection of community interests when the State practice was firmly grounded in protection of sovereign interests is indicative of the ILC’s pursuit of its mandate to ‘[encourage] the progressive development of international law’.14 However, certain obstacles impede the communitarian plea’s evolution from lex ferenda to lex lata. III

TEXTUAL STRICTNESS OF ARTICLE 25

The text of Article 25 provides for a very strictly defined and narrowly applicable plea, attesting to the ILC’s wish to repress its propensity for abuse. The Court in Gabčíkovo-Nagymaros Project (‘Gabčíkovo’) endorsed the ILC’s view that the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met.15 Indeed, the ILC’s casting of the article in negative terms reflects that ‘such [a] ground for precluding wrongfulness can only be accepted on an exceptional basis’.16 Moreover, the specific

Heathcote (n 2) 492. ‘Report of the Commission to the General Assembly on the Work of Its Fifty-First Session’ (1999) 2(II) Yearbook of the International Law Commission 1, 83 (‘ILC Report on 51st Session’). 11 ILC Commentary (n 4) 83. 12 Wolfgang Friedmann, ‘The Changing Dimensions of International Law’ (1962) 62(7) Columbia Law Review 1147. 13 ILC Commentary (n 4) 83; ILC Report on 51st Session (n 10) 82–3. 14 Charter of the United Nations art 13(1)(a). See also Establishment of an International Law Commission, GA Res 174 (II), UN GAOR, 2nd sess, 123rd plen mtg, UN Doc A/RES/174(II) (21 November 1947) annex (‘Statute of the International Law Commission’) art 1. 15 Gabčíkovo (n 3) 40. 16 Ibid. 9

conditions required to enliven the plea constitute very high thresholds in and of themselves.17 This drafting clearly evinces the ILC’s cautionary approach. Necessity was to become an objectively ascertainable temporary exception grounded in equitable justifications.18 The view was that necessity could not be entirely eschewed and was indeed justified where the inflexibility in the application of international law returned unfair results.19 Ago articulated that ‘[t]he imperative need for compliance with the law must not be allowed to result in situations characterized so aptly by the maxim summum jus summa injuria’.20 In this vein, the ILC’s recasting of the plea is supposed to ensure its highly exceptional nature. States invariably fail to make out necessity before courts and tribunals because either they contributed to the onset of the peril or breach of the obligation in question was not the sole means of averting the peril.21 These are fatal elements that can perhaps always be argued to exist to the detriment of the invoking State. As such, the existing textual strictness of Article 25 that already hinders the accessibility of the traditional plea, presents a first obstacle to the communitarian plea’s customary crystallisation. The requisite State practice is unlikely to be generated where States already face an uphill battle in drawing upon the more certain customary rule reflected in the traditional plea. Indeed, the communitarian plea has never been invoked before an international court or tribunal.22 IV

PRACTICAL DIFFICULTY IN DISCERNING THE PLEA’S CONTENT

Furthermore, it is practically difficult to discern Article 25’s general content as a function of the plea’s inherent nature. The Court in Gabčíkovo observed that ‘when [a State invokes] necessity…[it chooses] to place itself…within the ambit of the law of State responsibility, thereby implying that, in the absence of such a circumstance, its conduct would have been unlawful’.23 It is therefore unlikely that States will invoke the language of necessity for fear of the possibility of automatically incurring responsibility where the plea’s stringent conditions fail to be met. Consequently, States are incentivised to invoke primary rule exceptions. Crawford notes that ‘necessity must…be distinguished from the myriad emergency exceptions that lie within primary rules’24 and sometimes, these will operate as lex specialis to the exclusion of the circumstances

ASR (n 1) arts 25–6. Heathcote (n 2) 492. ‘Report of the Commission to the General Assembly on the Work of Its Thirty-Second Session’ (1980) 2(II) Yearbook of the International Law Commission 1, 49. 20 Ibid. This maxim is translated as ‘the greatest right is the greatest injury’, ‘meaning that granting a party the maximum extent of its rights may do an extreme injustice to the party against whom the right is asserted’: Aaron X Fellmeth and Maurice Horwitz, Guide to Latin in International Law (Oxford University Press, 1st ed, 2009) 273. 21 ILC Commentary (n 4) 81–2; Responsibility of States for Internationally Wrongful Acts: Compilation of Decisions of International Courts, Tribunals and Other Bodies: Report of the Secretary-General, UN Doc A/62/62 (1 February 2007) 55– 64. Responsibility of States for Internationally Wrongful Acts: Compilation of Decisions of International Courts, Tribunals and Other Bodies: Report of the Secretary-General, UN Doc A/65/76 (30 April 2010) 11–12; Responsibility of States for Internationally Wrongful Acts: Compilation of Decisions of International Courts, Tribunals and Other Bodies: Report of the Secretary-General, UN Doc A/68/72 (30 April 2013) 23–6; Responsibility of States for Internationally Wrongful Acts: Compilation of Decisions of International Courts, Tribunals and Other Bodies: Report of the Secretary-General, UN Doc A/71/80 (21 April 2016) 25; Responsibility of States for Internationally Wrongful Acts: Compilation of Decisions of International Courts, Tribunals and Other Bodies: Report of the Secretary-General, UN Doc A/74/83 (23 April 2019) 25–7. 22 Ibid. 23 Gabčíkovo (n 3) 39. 24 James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 9th ed, 2019) 550. See generally ‘Report of the Commission to the General Assembly on the Work of its Twenty-Second Session’ (1970) 2 Yearbook of the International Law Commission 1, 179. 17 18 19

precluding wrongfulness.25 For instance, the GATT26 has incorporated specific exceptions of this nature in Article XX which may take priority over the general secondary rule contained in Article 25. Moreover, the ILC makes clear in its commentary that ‘the plea of necessity is not intended to cover conduct which is in principle regulated by the primary obligations’.27 These conditions render it extraordinarily difficult to identify a sufficient body of State practice attending to necessity’s content in both its traditional and communitarian aspects. A second practical difficulty exists. Given that ‘the [invoking] State…is not the sole judge of whether those conditions [in Article 25] have been met’,28 Heathcote asserts that this characteristic of necessity ‘would implicate control a posteriori by a third party’.29 She notes that ‘if this is indeed a condition, it entails compulsory adjudication for the [necessity] defence to be made out’.30 As such, not only is there a disincentive for States to invoke necessity before a dispute reaches international courts and tribunals, but the plea can only properly be made out before such bodies. Consequently, the State practice clarifying the plea’s content is scant; only a handful of judicial and arbitral decisions may be pertinent. Crawford succinctly summarises judicial and arbitral treatment of the plea’s ‘diverse’ invocations: ‘[necessity’s] recognition as a possibility is usually followed by a denial of its applicability’.31 This is perhaps symptomatic of both the strictures of Article 25 and the practical difficulty in discerning its content. States are inevitably uncertain about what circumstances will enliven the plea, which manifests in divergent State practice with respect to its invocation.32 Hence, courts and tribunals cannot legitimately contribute to clarifying the content of the customary rule without employing a brand of judicial creativity that derogates from the constitutive process of CIL in identifying existing general practice believed to be law.33 It would appear that the plea of necessity is trapped within a mode of stasis whereby its precise content is unable to be circumscribed, stifling the emergence of State practice with respect to the less certain communitarian plea. V

THE ROLE OF OPINIO JURIS IN NESSITY’S CUSTOMARY STATUS

Traditional Plea

Notwithstanding the uncertain scope of Article 25, its customary existence is nevertheless accepted. Indeed, the ILC provided that ‘[t]here is substantial authority in support of the existence of [State-based] necessity as a circumstance precluding wrongfulness… [as it]… has been invoked by States and has been dealt with by a number of international tribunals’.34 The fact that the traditional plea’s existence as law is undisputed demonstrates that States actually understand the broader principle underpinning it. For identification, understanding, acceptance and therefore belief in the basis of a rule necessarily informs the requisite opinio juris to ground it in CIL. States would not be acting in the ‘belief that [their] practice is rendered obligatory by the existence of a rule of law requiring it’35 without a proper understanding of the rule’s underlying principle. Protection of the essential interests of the State is inextricably linked to the principle of ASR (n 1) art 55. See, eg, CMS Gas Transmission Co v Argentina (Annulment) (ICSID Arbitral Tribunal, Case No ARB/01/8, 25 September 2007) 1, [133]. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘General Agreement on Tariffs and Trade 1994’) (‘GATT’). 27 ILC Commentary (n 4) 84. 28 Gabčíkovo (n 3) 40. 29 Heathcote (n 2) 496. 30 Ibid. 31 Crawford (n 24) 550. 32 ILC Commentary (n 4) 81–3. 33 See South West Africa (Liberia v South Africa) (Judgment) [1966] ICJ Rep 6, 48. 34 ILC Commentary (n 4) 80–1. 35 North Sea Continental Shelf (n 7) 44. 25

sovereignty, which is necessarily understood and embodied by all States. On the modern positivist conception of international law, law is created by States to be discovered inductively on the basis of State practice and opinio juris. It is a system predicated on sovereignty. Rules that accord with or promote sovereign interests will necessarily feature amongst those which States believe to exist as a matter of law. As such, no State would rationally wish to deprive itself of the residual right to rely on the principle through the traditional plea’s operation. Though sovereignty is not a subjective right,36 its appreciation amongst States as such manifests a widespread acceptance that the traditional plea operates as positive international law by virtue of the requisite opinio juris, which anchors its customary existence. B

Communitarian Plea

The same cannot be said for the communitarian plea. Though there is arguably a greater degree of community consensus surrounding what constitutes an essential interest of the international community as a whole, there is no converging understanding as to the broader communitarian principle underlying the rule in and of itself or as law. This goes to a more fundamental point that there will rarely be widespread belief in the obligatory nature of vague communitarian directives or precepts. For illustrative purposes, this might be observed where weakly defined community-oriented principles are often consigned to soft law instruments devoid of binding force. For instance, the commitment to the ‘more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees’37 only found its form in a non-binding 2016 UNGA resolution, despite widespread consensus as to the issue’s global impact. Little, if anything, has been done to positively resolve the burden sharing problem that has long plagued international refugee law, which itself hinges on deference to State sovereignty. On the other hand, where features of apparently communitarian objectives can be readily assimilated to a State’s sovereign interests, such features will be readily adapted to binding legal instruments and commitments.38 Underpinning the reluctance to view vague communitarian directives as legally binding is perhaps a perception amongst States that they are inherently fraught with danger or disadvantage. From the perspective of any given State, there always exists the possibility that other States could exploit the vague and ill-understood communitarian plea as a guise for justifying breaches against that State outside the putative limits of necessity. Notwithstanding the fact that ‘the [invoking] State…is not the sole judge of whether those conditions [in Article 25] have been met’,39 the lack of understanding as to the operative principle governing the communitarian plea provides fertile ground for States to purport to be acting ‘for the greater good’ or in the vein of some generalist utilitarian principle. But they may in actuality be seeking to rely on a defence seemingly more expansive than the traditional plea, which would not ordinarily capture the wrongful conduct in question. The fundamental problem besetting the communitarian plea is that it operates on the assumption that the international order is characterised by the existence of international normative structures that transcend and compel States; that States are capable of believing that global utilitarian principles render the specific rules they justify to be legally binding. To pursue this assumption is

SS ‘Wimbledon’ (United Kingdom v Germany) (Judgment) [1923] PCIJ (ser A) No 1, 22–5. New York Declaration for Refugees and Migrants, GA Res 71/1, UN Doc A/RES/71/1 (3 October 2016, adopted 19 September 2016) [68]. 38 See, eg, Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 729 UNTS 161 (entered into force 5 March 1970). 39 Gabčíkovo (n 3) 40. 36 37

to ignore the endogenous nature of international law; it is a State-made creature and must necessarily accord with State-centric principles concerning regulation, coordination and convenience in domains of international concern. VI

CONCLUSION

The communitarian plea therefore resists customary crystallisation. The ILC’s construction of the overarching framework enshrined in Article 25 makes for a narrowly applicable and elusive plea which fortifies against its own abuse. Nevertheless, these precise features render it highly unlikely that the requisite State practice will accrue to vitalise the plea’s communitarian aspect. The plea also resists the required opinio juris to ground its status as CIL because States cannot identify and understand its underlying principle and therefore fundamentally believe in its binding legal force. As such, state of necessity cannot today be invoked to justify the safeguarding of an essential interest of the international community as a whole and this communitarian aspect is likely to remain in progressive development for the foreseeable future. However, given that UNGA has regularly propositioned considering the possibility of convening a conference with a view to concluding a convention on state responsibility,40 it may be that the communitarian plea will assume the status of positive law in treaty form. Though an unlikely prospect in the near future, the matter will be considered again at the 77th session of UNGA in 2022.41

Responsibility of States for Internationally Wrongful Acts, GA Res 59/35, UN Doc A/RES/59/35 (16 December 2004) [4]; Responsibility of States for Internationally Wrongful Acts, GA Res 62/61, UN Doc A/RES/62/61 (6 December 2007) [4]; Responsibility of States for Internationally Wrongful Acts, GA Res 65/19, UN Doc A/RES/65/19 (10 January 2011) [4]; Responsibility of States for Internationally Wrongful Acts, GA Res 68/104, UN Doc A/RES/68/104 (16 December 2013) [5]; Responsibility of States for Internationally Wrongful Acts, GA Res 71/133, UN Doc A/RES/71/133 (19 December 2016) [8]; Responsibility of States for Internationally Wrongful Acts, GA Res 74/180, UN Doc A/RES/74/180 (27 December 2019) [9]. 41 Responsibility of States for Internationally Wrongful Acts, GA Res 74/180, UN Doc A/RES/74/180 (27 December 2019) [9]. 40

TREATY RATIFICATION AND NONCOMPLIANCE: THE CASE OF PAKISTAN AND THE CONVENTION AGAINST TORTURE Nasra Al Baloshi The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1 (‘Convention against Torture’ or ‘Convention’) was signed and ratified by Pakistan in 2008 and 2010 respectively. While Pakistan’s ratification of the Convention was well-received, especially by human rights organisations, it was perceived as late compared to other states that had ratified it long ago. Nonetheless, its long-delayed ratification of the Convention was expected to be effective in protecting human rights in Pakistan and creating torture prevention laws.2 However, Pakistan has failed to achieve any tangible changes in this regard. In particular, it has failed to comply with the Convention in terms of incorporating it into its domestic law either by introducing new legislation or amending the existing ones.3 In light of Pakistan’s non-compliance, this paper offers a theoretically-informed explanation of the political factors that explain Pakistan’s ratification of the Convention against Torture. Adopting a realist standpoint, this paper argues that Pakistan’s ratification of the Convention against Torture was mainly a rational step from its side to gain some tangible and intangible rewards, and its noncompliance is due to the Convention’s incompatibility with Pakistan’s long-term interests. The discussion ultimately raises serious questions about ratification of and compliance with international law. Particularly, it raises the question why states ratify international treaties if they eventually choose not to comply with it? Furthermore, it poses doubts on the effectiveness of ratification of treaties and the efficacy of international law to uphold and protect human rights and hold states accountable. I

THEORETICAL EXPLANATION: REALISM AND THE ISSUE OF RATIFICATION AND (NON)COMPLIANCE

Based on realist premises, this section argues that international law can be both consequential, resulting in ratification, and inconsequential, leading to noncompliance. Realism argues that the international system is governed by anarchy and state behaviour in this system is governed by the maximisation of national power.4 Specifically, in international politics, state behaviour is dictated by its pursuit for securing the greatest possible material interests and security. Realists argue that this makes international politics not a win-or-lose game, but a game of distribution of powers in which unitary states, which are the key actors, compete for maximising their relative power. Realism posits that international law can be a medium of coordination between these states; through international law, states can resolve issues and generate knowledge for addressing shared problems.5 Similarly, management and enhancement of mutual relations has been a key motivator for states to join multilateral treaties.6 However, realists emphasise that the outcomes of these agreements are determined by distributional power. While all states gain something from this system, the most powerful states are the ones that decide the rules and gain

1 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). 2 Asian Human Rights Commission, ‘Pakistan: AHRC Welcomes the Country’s Ratification of the ICCPR and the CAT Convention and call for speedy implementation’, Asian Human Rights Commission News (Statement, June 7 2010) <http://www.humanrights.asia/news/ahrc-news/AHRC-STM-093-2010/>. 3 Waiza Rafique, ‘Pakistan Still Awaits an Anti-Torture Legislation’, Daily Times (online, 12 April 2021) <https://dailytimes.com.pk/744490/pakistan-still-awaits-an-anti-torture-legislation/>. 4 Stephen D Krasner, ‘Realist Views of International Law’ (2002) 96 Proceedings of the Annual Meeting (American Society of International Law) 265. 5 Ibid. 6 Jonathan D Greenberg, ‘Does Power Trump Law’ (2003) 55(5) Stanford Law Review 1789.

the most.7 Due to this, weaker states are obliged to join these agreements even if they prefer their previous power position. As the powerful states create a new world order, weaker states are left with no choice but to accept these new settings even if it weakens their previous power position. Thus, realists argue that international law, while reflecting inequalities in power relations between states, can be consequential.8 From a realist perspective, international law holds value for power-maximising states because it helps them secure some interests even if the broader framework of the law is dictated by the powerful states.9 However, International law can become inconsequential resulting in noncompliance and lack of enforcement. International law becomes less important or even gets ‘ignored and delegitimized’ when it impedes a state’s pursuit for maximising its military and economic interests.10 For unitary states that seek power maximisation through a rational, interest-based approach, taking the restrictions posed by international law seriously is likely to result in irrational decisions.11 For realists, in order to ensure state compliance, there is need for enforcement; if there is no enforcement, states are likely to simply ignore international law.12 However, whether violation of and noncompliance with international law will be punished or not is dependent on the objectives of the powerful states which consequently makes the enforcement of international treaties biased.13 Realists argue that states are less likely to point out noncompliance or human rights violations committed by other states as it can undermine their own sovereignty and puts them into question.14 Therefore, international law can be inconsequential and results in noncompliance because of its possible contradiction with a state’s interests and pursuit for power. II

CRITICAL ANALYSIS: EVIDENCE FROM PAKISTAN

Through a realist lens, this section argues that Pakistan’s ratification of the Convention against Torture was merely an expressive position on the treaty to gain some tangible and intangible rewards such as economic and military aid and building legitimacy and reputation. Furthermore, its noncompliance, evident in its increased use of torture since its ratification of the treaty, is a result of the treaty’s inconsistency with Pakistan’s long-term interests of increasing its security and sovereignty. A

Ratification for Rewards: Reputation and Foreign Aid

Hathaway has argued that ratification of treaties provides states a low-cost and effective strategy to express their support for the ideas and standards set in those treaties.15 This allows states to secure ‘rewards for positions rather than for effects’.16 Because enforcement of treaties is often defective, this allows states to reap these rewards without actually complying with the treaty .17 This includes both tangible and intangible rewards. Tangible rewards include securing some

Krasner (n 5). Ibid. 9 Ibid. 10 Carmen E Pavel and David Lefkowitz, ‘Skeptical Challenges to International Law’ (2018) 13(8) Philosophy Compass 1, 9. 11 Carmen E Pavel, ‘Hume’s Dynamic Coordination and International Law’ (2020) 49(2) Political Theory 215. 12 Daniel St Pierre, ‘Respecting Human Rights: Does Treaty Ratification Lead to Compliance?’ (2012) 2(2) Agora: Political Science Undergraduate Journal 169. 13 Krasner (n 5) cited in Alia Azmi, ‘Indonesia’s Death Penalty Execution from the Realist View of International Law’ (2015) 14(1) Humanus 9. 14 Krasner (n 5) cited in Koldo Casla, ‘Order over Justice: International Human Rights Norm Promotion by Western European States’ (Doctoral Dissertation, King’s College London, 2017). 15 Oona A Hathaway, ‘Do Human Rights Treaties Make a Difference’ (2002) 111(8) Yale Law Journal 1935. 16 Ibid 2013. 17 Ibid. 7 8

economic benefits and intangible rewards are gaining legitimacy and respect.18 In particular, gaining legitimacy creates a good image for the state party, thus attracting economic benefits. As Hathaway argues, this is especially true for treaties like the Convention against Torture.19 By ratifying the treaty, these states ‘attract more foreign investment, aid donations, international trade, and other tangible benefits’20 This seems to be especially true for states with already a bad reputation. Hathaway explains that states which already comply with the principles of, for example the Convention against Torture, are less likely to ratify it because they already have a good reputation and in fact may have something to lose by ratifying it .21 Generally, states with good reputation usually respect and obey the treaties they have ratified (Hathaway, 2004). However, committing to a treaty can be costly, especially for states with good human rights records, as failing to comply with their international commitments can be a threat to their reputation and image (Hathaway, 2004). Thus, states with good reputation are more reluctant to commit to treaties than states with poor human rights records (Hathaway, 2004). On the other hand, states that regularly use torture and have a bad reputation in this regard are more likely to ratify the treaty to gain reputation and legitimacy.22 Pakistan’s ratification of the Convention against Torture is one such case. Pakistan has had a poor reputation in terms of human rights practices and its ratification of the Convention against Torture has been a step to improve its reputation and gain foreign aid. In a US Department of State report, published in 2005, Pakistan was pointed out for its poor human rights record and was condemned for its increased practice of torture and extrajudicial killings.23 Following this report, Pakistan ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR)24 in June the same year.25 While Pakistan was applauded for this step, it made headlines again in 2007, attracting international criticism, following the assassination of then prime minister Benazir Bhutto.26 As Musharraf declared a state of emergency, which was followed by the suspension of civil and political rights in the country and a troubling increase in human rights abuses. In 2008, the Asian Human Right Commission (AHRC) reported that more than 50 illegal torture and detention centres were found across Pakistan. In late 2007 and early 2008, US congressmen requested President Bush for the revaluation of its policy towards Pakistan and consideration of aid sanctions until the Musharraf administration provides evidence of improved human rights record.27 It can be argued that concerns of aid sanctions or reductions made the Pakistani state take the important step to ratify both the Convention against Torture and the International Covenant on Civil and Political Rights28 in 2010.29 These ratifications were perceived as an attempt by the Pakistani state to attract foreign aid and to appear reputable in the eyes of the international community.30 18 Rich Nielsen and Beth A Simmons, ‘Rewards for Rights Ratification? Testing for Tangible and Intangible Benefits of Human Rights Treaty Ratification’ (Faculty Scholarship, University of Pennsylvania Carey Law School, 1 November 2012). 19 Oona A Hathaway, ‘The Promise and Limits of the International Law of Torture’ in Oona A Hathaway and Harold Hongju Koh (eds), Foundations of International Law and Politics (Foundation, 2004) 228. 20 Ibid 207. 21 Ibid. 22 Ibid. 23 Douglas Hamilton Spence, ‘Foreign Aid and Human Rights Treaty Ratification: Moving Beyond the Rewards Thesis’ (2014) 18(4–5) International Journal of Human Rights 414. 24 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’). 25 Spence (n 27). 26 Ibid. 27 Ibid. 28 ICESCR (n 28). 29 Spence (n 27). 30 Ibid.

Noncompliance and Long-Term Pakistani Interests

However, ratification of a treaty is not a guarantee for compliance. In fact, researchers have argued that states that ratify human rights treaties tend to be the ones that violate human rights the most in the long run.31 This has been especially true for the ratification of the Convention against Torture. Ratification of the Convention entails a state’s undertaking to not inflict any physical or psychological suffering on anyone for purposes of punishment, coercion, confession, intimidation or obtaining evidence.32 The Convention does not include any international enforcement measures as such but requires states to report annually to its committee and take domestic measures to comply with the articles of the treaty.33 Hathaway argues that where violations of treaties are less detectable, for example torture practices, such violations are likely to be common.34 According to Noack, most of the countries that have been accused of using some form of torture in the last two decades have either signed or ratified the Convention against Torture.35 Such noncompliance of state parties to ratified treaties, based on realist premises, is due to the incompatibility between the treaty’s requirements and the state party’s long-term interests.36 This is demonstrated by Pakistan’s increased use of torture in the insurgency in its Balochistan province. In Pakistan, torture cases fall into two main categories: torture in police custody, and torture of forcibly disappeared persons. Torture is commonly used by the police in Pakistan and in fact it is seen as a justified means for obtaining evidence and is not perceived as problematic by both the police and the victims.37 In both cases, the perpetrators of torture get away with impunity. According to the Human Rights Commission of Pakistan, at least 20 cases of custodial torture are reported to them monthly.38 Chaudhary argues that the exact number of actual cases is difficult, if not impossible, to confirm.39 However, the numbers of forcibly disappeared persons are far more difficult to estimate. While increased torture practices and enforced disappearances are evident across Pakistan, they have been more intensive and disturbing in Balochistan.40 The insurgency in Balochistan has posed a serious threat to Pakistan’s sovereignty and security as well as to its long-term military and economic interests. This has resulted in an increase in human rights abuses and violations of the Convention against Torture by the Pakistani state. Balochistan, Pakistan’s largest, richest and least developed province, has been the locus of an insurgent movement since 1948 (Bansal, 2008).41 Currently, the insurgency is in its fifth phase which started

Christopher J Fariss, ‘The Changing Standard of Accountability and the Positive Relationship between Human Rights Treaty Ratification and Compliance’ (2018) 48(1) British Journal of Political Science 239. 32 Oona A Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’ (2007) 51(4) Journal of Conflict Resolution 588. 33 Ibid. 34 Hathaway, ‘The Promise and Limits of the International Law of Torture’ (n 23). 35 Rick Noack, ‘Most Countries are Against Torture — But Most Have Also Been Accused of It’, The Washington Post (online, 12 December 2014) <https://www.washingtonpost.com/news/worldviews/wp/2014/12/12/most-countries-areagainst-torture-but-most-have-also-been-accused-of-it/>. 36 Richard H Steinberg, ‘Wanted—Dead or Alive: Realism in International Law’ in Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press, 2013) 146. 37 Rabia Chaudhry, ‘Policing, Custodial Torture and Human Rights: Designing a Policy Framework for Pakistan’ (Monograph, Forman Christian College Centre for Public Policy and Governance, 2013). 38 Ibid. 39 Ibid. 40 Human Rights Watch, ‘“We Can Torture, Kill or Keep You for Years”: Enforced Disappearances by the Pakistani Security Forces in Balochistan’ (Report, July 2011) <https://www.hrw.org/sites/default/files/reports/pakistan0711WebInside.pdf>. 41 Alok Bansal, ‘Factors Leading to Insurgency in Balochistan’ (2008) 19(2) Small Wars and Insurgencies 182. 31

in 2004 (Ahmad and Najish, 2017).42 In the course of suppressing this insurgency, Pakistan has perpetuated breaches of the Convention and other grave human rights abuses in Balochistan. There has been a rise in torture, enforced disappearances and extrajudicial killings in Balochistan. According to the co-founder of the Voice for Baloch Missing Persons (VBMP), they have registered at least 5000 cases of enforced disappearances.43 The forcibly disappeared persons include students, teachers, political workers and activists.44 While the security forces do not openly admit their role, they neither deny it.45 In some cases, security forces have accepted legal responsibility to the families of Baloch missing persons because they are often abducted in broad daylight and in the presence of witnesses.46 Since 2009, at least 1400 forcibly disappeared individuals’ mutilated bodies have been found ‘riddled with bullets and drill holes’.47 These events and statistics clearly evidence Pakistan’s noncompliance with the Convention against Torture. The insurgency, initiated by Baloch nationalists, has been perceived as a grave internal security threat by the Pakistani state.48 Furthermore, the insurgency has been seen by the Pakistani state as a proxy war supported by its rival and neighbour, India.49 Consequently, the insurgent movement has been seen as a potential cause for undermining Pakistan’s territorial sovereignty.50 The Baloch insurgents have been demanding the creation of a Baloch nation-state and the complete non-interference of the Pakistani state. The Balochistan province is a geopolitically significant region and is rich in natural resources such as oil and gas.51 In fact, Jilani and Mujaddid argue that geo-strategic importance of Pakistan actually lies in Balochistan’.52 This has made the Pakistani state concerned with strengthening its military defence and suppressing the insurgency. Breaches of the Convention against Torture are clearly referrable to these sovereign interests. III

CONCLUSION

This paper has argued that Pakistan’s ratification of the Convention against Torture in 2010 was driven by cost-benefit calculations to build its reputation and escape any potential aid sanctions for its poor human rights record. Its interest-maximisation approaches to its international law commitments were further corroborated by its noncompliance with the Convention due to internal security and sovereignty threats. This analysis was based on a realist theoretical framework. The Pakistani case study demonstrates that the effectiveness of international law is limited by state interests. Furthermore, it highlights the limitations of international law and its enforcement mechanisms. Particularly, it demonstrates that international law, which is created for better protection of human rights and holding abusers accountable, can allow states to escape with impunity.

42 Afroz Ahmad and Ms Najish, ‘Balochistan Movement: Why India's Policy Took a Shift Towards Balochistan under Narendra Modi Government’ (2017) 39 International Journal of African and Asian Studies 80. 43 Nasrullah Baloch, ‘Ending Pakistan’s Epidemic of Enforced Disappearances’, Al Jazeera (online, 9 March 2021) <https://www.aljazeera.com/opinions/2021/3/9/addressing-pakistans-epidemic-of-forced-disappearances>. 44 Ibid. 45 Ibid. 46 Human Rights Watch (n 45). 47 Hannah Ellis-Petersen, ‘Kidnap, Torture, Murder: The Plight of Pakistan’s Thousands of Disappeared’, The Guardian (online, 14 December 2020) <https://www.theguardian.com/global-development/2020/dec/14/kidnap-torture-the-plightof-pakistans-thousands-of-disappeared>. 48 Ahmed Waqas Waheed, ‘State Sovereignty and International Relations in Pakistan: Analysing the Realism Stranglehold’ (2017) 37(3) South Asia Research 277. 49 Ibid. 50 Ibid. 51 Sheikh Ghulam Jilani and Ghulam Mujaddid, ‘Theory and Practice of Insurgency and Counterinsurgency: The Case Study of Balochistan’ (2020) 5(1) Global Strategic and Security Studies Review 1. 52 Ibid 3.

CYBERFORCE AND THE PROHIBITION ON THE THREAT OR USE OF FORCE Alexandra Rose Mamouney ‘[T]he character of warfare is changing, with more options for pursuing strategic ends just below the threshold of traditional armed conflict — what some experts like to call grey-zone tactics or hybrid warfare’1 I

INTRODUCTION

Australia’s 2020 Defence Strategic Update aims to address the changes to conventional warfare by responding to ‘grey-zone’ activities.2 Grey-zone activities refer to actions which do not clearly cross the threshold of ‘force’ or ‘war’. They involve military and non-military coercive techniques which help to secure national interest objectives.3 This paper focuses on cyberforce as a greyzone activity and has two aims. First, to explain the conventional understanding of when cyberforce violates the prohibition on the threat and use of force (‘the prohibition’) under international law. Second, to demonstrate how issues of attribution and ambiguous state practice undermine the applicability of the prohibition to govern cyberforce techniques. Ultimately it suggests that international law will be forced to evolve and adapt, as States seek to address cyberforce techniques that are designed to fall outside the ambit of the prohibition. II

INTERNATIONAL LAW FRAMEWORK

Applicable Principles

Whilst force is not explicitly defined in international law, it is widely accepted to be limited to physical armed attacks. Armed attacks are characterised into grave or less grave breaches based on their ‘scale and effects’.4 For example, the International Court of Justice in Nicaragua v America held that the arming and training rebels amounted to a less grave use of force.5 A State will only have a right to self-defence measures in response to a grave use of force,6 such as an invasion or attack by military forces.7 Article 2(4) of the Charter of the United Nations prohibits the ‘threat or use of force’ by ‘members’ of the international community against the ‘territorial integrity, political independence or any manner inconsistent with the purposes of the UN’.8 It is unlawful when it does not constitute self-defence9 or is unauthorised by the United Nations Security Council.10 The meaning of ‘force’ however does not extend to coercive political or economic levers.11

Linda Reynolds ‘ASPI International Conference: War in 2025’ (Speech, ASPI International Conference, 13 June 2019). Department of Defence (Cth), 2020 Defence Strategic Update (Policy Document, 2020) 12 [1.5]. Ibid. 4 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v America) (Merits) [1986] ICJ Rep 14, 103 [195] (‘Nicaragua’). 5 Nicaragua (n 4). 6 Case Concerning Oil Platforms( Iran v America) (Judgement) [2003] ICJ Rep 161, 183 [43] (‘Oil Platforms’). 7 Definition of Aggression, GA Res 3314, UN Doc A/RES/3314 (14 December 1974). 8 Charter of the United Nations art 2(4). 9 Charter of the United Nations art 51. 10 Charter of the United Nations art 42. 11 Eleventh Meeting of Committee I/1, Doc 784 I/1/27 (5 June 1945) para 7–8 in Documents of the United Nations Conference on International Organization (United Nations Information Organizations, 1945) vol 6, 334–5. 1 2 3

A use of force distinguishes from a threat of force when the intended use of force, if undertaken would cause the required ‘scale and effects’12 of an armed attack, yet has not been employed. 13 A threat of force indicates that ‘force will be used if a rule or demand is not complied with’.14 B

The Tallinn Manual 2.0

The Tallinn Manual 2.0 on the International Law Applicable to Cyber Warfare15 (‘Tallin Manual 2.0’) is a leading text on the applicability of the prohibition on the threat or use of force to the cyber context. Cyberforce or cyberattack can be defined as a hostile attack aimed at ‘altering or destroying the information contained in the targeted computer or computer network with the purpose of incapacitating the adversary’s command, control and communication system and/or … causing damage extrinsic to the targeted computer/network’.16 1

Cyberforce and ‘Armed Attack’

As established by the Nuclear Weapons Advisory Opinion, the law on force governs ‘any use of force, regardless of the weapons employed’17 which suggests cyberforce can fall within its ambit. Accordingly, the Tallinn Manual 2.0 states that cyberforce would likely constitute a ‘use of force when its scale and effects are comparable to non-cyber methods rising to the level of a use of force’.18 For example a direct cyberattack (destructive cyber-technique aimed to alter, disrupt or destroy) 19 which causes weapons of mass destruction to explode and harm people or objects.20 Or an indirect cyberattack which contaminates a water supply with lethal chemicals resulting in death or illness over a long period.21 It follows that a cyberattack would likely amount to a threat of force when it is used to coerce another State. It must propose to cause the requisite ‘scale and effects’ of an armed attack, if undertaken would be considered unlawful. By contrast a cyberattack which jeopardises economic or political elements of a State is not included within the ambit of the prohibition. The cyberattack on the Colonial Pipeline for instance resulted in economic implications.22 This type of cyberattack would unlikely to be governed by Article 2(4).

Nicaragua (n 4) 103 [195]. Legality of the Threat or Use of Nuclear Weapons, (Advisory Opinion) [1996] ICJ Rep 226, 246 [47] (‘Nuclear Weapons’); Question of Defining Aggression: Report by the Secretary-General, UN GAOR, 7th sess, UN Doc A/2211 (3 October 1952) [68]. 14Romana Saurska, ‘Threats of Force’ (1988) 82(2) American Journal of International Law 239, 242. 15 Michael N Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Warfare (Cambridge University Press, 2017) (‘Tallinn Manual 2.0’). 16 Marco Roscini ‘World Wide Warfare — Jus ad Bellum and the Use of Cyber Force’ (2010) 14 Max Planck Yearbook of United Nations Law 85, 93. 17 Nuclear Weapons (n 13) 226, 244 [39]. 18 Tallinn Manual 2.0 ( n 15) 330. 19 Herbert S Lin ‘Offensive Cyber Operations and the Use of Force Cybersecurity Symposium: National Leadership, Individual Responsibility’ (2010) 4(1) Journal of National Security Law & Policy 63. 20 Joe Tidy, ‘Hacker Tries to Poison Water Supply of Florida City’, BBC (online, 8 February 2021) <https://www.bbc.com/news/world-us-canada-55989843>. 21 Ibid. 22 Mary-Ann Russon, ‘US fuel pipeline hackers didn’t mean to create problems’, BBC (online, 10 May 2021) <https://www.bbc.com/news/business-57050690>. 12 13

Cyberforce and State Responsibility

Issues of attributing cyberattacks to responsible State actors challenge whether Article 2(4) is applicable to cyberforce. The Tallinn Manual 2.0 on the International Law Applicable to Cyber Warfare (‘Tallin Manual 2.0’) aims to articulate principles of international law in this area. Rule 1423 reflects the Articles on State Responsibility and stipulates that for a State to bear international legal responsibility: (i) the cyberattack must be clearly attributable to the State under international law; and (ii) the cyberattack amounts to a breach of an international obligation.24 State responsibility extends to an act or omission committed by State organs, private companies employed by the State, private citizens called upon by the State or non-state actors who were under the ‘effective control’ of a State organ.25 Even though it seems attribution covers a wide scope of acts or omissions, Rule 1526 indicates a high threshold for criteria to successfully prove attribution. It states ‘the mere fact that a cyber operation has been launched or otherwise originates from governmental cyber infrastructure … is usually insufficient evidence for attributing the operation to that State’.27 It backtracks slightly on this point by suggesting initiations from government infrastructure operate as indications of State association to the cyberattack. This ambiguity demonstrates an unclear legal process and framework for determining attribution for cyberattacks. Consequently, this complicates the ability of State’s to attribute cyberattacks. III

ASSESSING THE TALLINN MANUAL 2.0

Issues of Attribution

The nature of cyberattacks minimises the possibility for establishing attribution, due to the high standards set out in the Tallin Manual 2.0. This poses a significant issue pertaining the applicability of Article 2(4). As Roscini observes, ‘anyone launching cyberattacks can disguise their origin thanks to tricks like IP spoofing or the use of botnets’.28 One only needs an internet connection, a computer and software to initiate an operation from anywhere in the world. This facilitates the dilution of any evidence pertaining the responsibility and involvement of a State. A State for instance could employ a private company or citizen to carry out cyberattack on its behalf, with no evidence of connection. The Tallin Manual 2.0 does outline that employment of the private-sector would equate to State-responsibility however the threshold is set so high so as to allow States to evade attribution. This is because degree of control must go ‘beyond the mere financing and equipping of such force’,29 rather it needs to be direct involvement, participation, planning and supervision of the cyberattack.30 The tenuous attribution of the Putter Panda group to the Chinese People’s Liberation Army (PLA) demonstrates this issue. Crowdstrike linked Chen Ping, believed to have been involved in historical cyberespionage activities for Putter Panda, to be likely in Shanghai working for the 12th

Tallinn Manual 2.0 (n 15) 84–7. Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UN Doc A/RES/56/83 (28 January 2002, adopted 12 December 2001) annex arts 1–2. 25 Ibid. 26 Tallinn Manual 2.0 (n 15) 87–92. 27 Ibid 91. 28 Roscini (n 16) 96. 29 Michael N Schmitt (ed), Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge University Press, 2013) 33, citing Prosecutor v Tadić (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-94-1-A, 15 July 1999) [145]. 30 Ibid. 23 24

Bureau, 3rd General Staff Department of the PLA. Even if Chen Ping was a member of the PLA one would need to show he was under the direct and immediate control of the PLA to satisfy the high threshold. This level of uncertainty in the evidence prevents the hacktivist group from being formerly attributed despite linkages to core government infrastructure. Additionally the nature of cyberattacks means they can easily be conducted by non-state actors, which further complicates attribution. As Roscini again observes, ‘the threat no longer … comes from the proverbial teenage hackers but also from ideologically motivated individuals (“hacktivists”), States and criminal and terrorist organizations’.31 The Tallin Manual 2.0 gives little guidance for attributing and responding to non-states, especially when State-actors incite cybercrime within their population. For example, following a 2001 incident when a United States (‘US’) Navy plane collided with a Chinese jet-fighter in the South China Sea, websites emerged with instructions for hackers to disable US government computers.32 Consequently this ambiguity allows States to evade attribution. Similarly cyberattacks can seem to originate from computers located in a particular territory, when really they are initiated elsewhere.33 This forms a murky basis for disseminating whether or not the attack was state-sponsored and if so whether it was initiated by the State housing the computer. B

Ambiguous State Practice on Cyberforce and ‘Armed Attack’

The secrecy of State practice when attributing cyberattacks makes it difficult to verify whether the Tallin Manual 2.0 represents an accurate application of Article 2(4) to cyberforce. Between the publication of the manual and 2018 no state assumed responsibility for cyberoperations.34 Victim States seem to be reluctant to publicly admit when a cyberattack has occurred against them. This secrecy is likely triggered by a fear that others may be inspired to take advantage of the same vulnerability within State infrastructure and provide adversaries with information regarding cybersecurity weaknesses.35 Similarly, public confidence in the government’s ability would be undermined and perhaps result in pressure to retaliate.36 The Iranian oil gas fires highlight this issue. Over three months multiple instances of fires in petrochemical plants, gas pipeline explosions and gas leaks occurred across Iran causing damage and fatalities. Investigations were conducted by the Iranian Supreme National Cyberspace Council and the head of the Iranian Military unit responsible for combatting cyber-sabotage. 37 Iran however denied they were a victim of cyberattacks and claimed their imported equipment was plagued by malware. An expert in the field drew similarities between the fires and the Stuxnet virus, suggesting State cyber-interference.38 This tendency of victim States to avoid publicly attributing the perpetrators of cyberattacks, prevents the enforcement of Article 2(4). Ultimately this calls into question the relevance of Article 2(4) regarding matters of cyberforce.

Roscini (n 16) 87. Noah Weisbord, ‘Conceptualizing Aggression’ (2009) 20(1) Duke Journal of Comparative and International Law 1, 20. 33 Ibid. 34 Dan Efrony and Yuval Shany, ‘A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyberoperations and Subsequent State Practice’ (2018) 112(4) American Journal of International Law 583. 35 Ibid 594. 36 Ibid 594–5. 37 Malak Harb and Jon Gambrell, ‘Iran Oil Industry fire, blasts raise suspicions of hacking’, Fox News (online, 22 September 2016) <https://www.foxnews.com/world/iran-oil-industry-fires-blasts-raise-suspicions-of-hacking>. 38 Ibid. 31 32

Shifting State Practice?

A recent shift in State practice however, does suggest an increase in their willingness to call out State perpetrators for cyberattacks. For example, the US and its allies are collectively acting to expose China’s malicious cyber activities.39 Their aim is to ‘call out those activities, promote network defence and cybersecurity, and act to disrupt threats to our economies and national security’. This was seen when the European Union, North Atlantic Treaty Organization , Five Eyes allies and Japan identified the China as the perpetrator of multiple ‘irresponsible behaviors in cyberspace’,40 such as the Microsoft Exchange hack.41 Even if an increase of international collaboration to combat cyberforce can be seen, little focus is being spent on a framework for attribution. Rather States prefer ‘detaining, detecting and eliminating cyber-security breaches’.42 In Australia, the 2020 Defence Strategic Update purports to create ‘[s]ecure and resilient information systems’43 as well as ‘shar[e] information with partners’,44 including other government agencies, to ‘defen[d] against cyberattacks’.45 More recently the Parliamentary Joint committee on Intelligence and Security supported 14 urgent reforms regarding the Security Legislation Amendment (Critical Infrastructure) Bill 2020 (Cth), which enhances and imposes positive security obligations on the private sector, such as reporting mechanisms.46 The 2020 Defence Strategic Update pertinently notes that cyberattacks are, ‘often conducted in ways designed to facilitate deniability and complicate attribution.’47 This complication of attribution for cyber-activities operates to serve State national interest objectives, by allowing them to fly under the radar of assuming responsibility for breaches of international obligations. Consequently there is reluctance to implement attributive methods regarding cyberforce in international law. IV

CONCLUSION

Whilst it is possible for cyberforce to fall within the ambit of the prohibition, the difficulties of attribution demonstrate the ineffectiveness of Article 2(4), in its current form; to govern grey-zone cyberforce techniques. As States seek to address this rise in cyberforce activities, the future is likely to see changes to the meaning of ‘force’ and adoptions of new international legal doctrines.

White House ‘The United States, Joined by Allies and Partners, Attributes Malicious Cyber Activity and Irresponsible State Behavior to the People’s Republic of China’ (Media Briefing, 19 July 2021) <https://www.whitehouse.gov/briefingroom/statements-releases/2021/07/19/the-united-states-joined-by-allies-and-partners-attributes-malicious-cyberactivity-and-irresponsible-state-behavior-to-the-peoples-republic-of-china/>. 40 Erica Lonegran, ‘What Makes This Attribution of Chinese Hacking Different’, Carnegie Endowment for International Peace (commentary, 22 July 2021) <https://carnegieendowment.org/2021/07/22/what-makes-this-attribution-ofchinese-hacking-different-pub-85023>. 41 Matthew Doran, ‘Criminals Exploited Microsoft Exchange after China “Propped Open the Door”, Intelligence Agency Says’ Australian Broadcasting Corporation (online, 29 July 2021) <https://www.abc.net.au/news/2021-07-29/chinamicrosoft-exchange-hack-criminals-weakness-propped-open/100335008>. 42 Efrony and Shany, (n 33). 43 Department of Defence (Cth) (n 2) 36 [3.9]. 44 Ibid. 45 Ibid. 46 Natasha Tupas ‘PJIS Push to Tackle Urgent Threats with Split Critical Infrastructure Bill’ Cyber Security Connect (online, 30 September 2021) <https://www.cybersecurityconnect.com.au/policy/7197-pjcis-push-to-tackle-urgent-threats-withsplit-critical-infrastructure-bill>. 47 Department of Defence (Cth) (n 42) 13 [1.10]. 39

A CRITICAL ENDORSEMENT OF THE INTERNATIONAL LAW COMMISSION’S DRAFTING OF THE PLEA OF NECESSITY Lily Pang I

INTRODUCTION

The Articles of State Responsibility for Internationally Wrongful Acts (‘ASRIWA’ or ‘Articles’) is the primary document that deals with the content of State responsibility within the international legal order. 1 Where a State has breached an international obligation, States may invoke Article 25 of ASRIWA to plead necessity as a circumstance precluding wrongfulness. ASRIWA is a soft law instrument, with some articles considered customary international law, and others considered progressive development.2 The International Law Commission (‘ILC’) has not explicitly classified Article 25 as progressive development in its ASRIWA Commentary.3 The ILC defines progressive development as areas of international law not yet ‘regulated… or sufficiently developed in the practice of States’.4 The ambiguous status of the Articles provides greater scope for international courts and tribunals to rely on the work of the ILC, without first determining whether the subject matter represents, revises or develops the law.5 In Gabčíkovo-Nagymaros Project,6 the International Court of Justice (‘ICJ’) acknowledged the status of Article 25 in safeguarding an essential of the State as custom, while the Articles were still in first reading draft. However, whether a State can invoke Article 25 to safeguard an essential interest of the international community is more contested.7 This essay considers the balance struck between stricture and ambiguity in the ILC’s drafting of Article 25. It argues that there are significant interpretive challenges that limit the successful invocation of the plea, and that accordingly the ILC have succeeded in constraining the plea without rendering it obsolete. II

THE STRICTURES AND AMBIGUITIES OF NECESSITY

Challenges to Successful Invocation — Textual Limitations

The necessity plea in the 1996 Draft Articles read: ‘the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril’.8 By the time the Articles were finalised in 2001, the text has been modified to read ‘the act is the only way for the State to safeguard an essential interest against a grave and imminent peril’.9 By changing the sentence construction, the finalised Articles widened the scope to encapsulate the interest of the international community, and not merely interest of States themselves.

1 Responsibility of States for internationally wrongful acts, GA Res 56/83, 56th sess, Agenda Item 162, UN Doc A/RES/56/83 (28 January 2002, adopted 12 December 2001) annex (‘ASRIWA’). 2 Oxford University Press, Max Planck Encyclopedia of International Law, (online at 5 May 2021) ‘State Responsibility’ [65]. 3 Cf wording in ILC Commentary which states Art 41 and 48 ASRIWA ‘involves a measure of progressive development’. 4 Establishment of an International Law Commission, GA Res 174 (II), 123rd plen mtg, (21 November 1947) art 15. 5 Alan Boyle and Christine Chinkin, The Making of International Law (Oxford University Press, 2007) 200. 6 (Hungary v Slovakia) (Judgement) [1997] ICJ Rep 40 [51]. 7 Note that Article 25 of Draft articles on the responsibility of international organisations allows international organisations to invoke necessity to protect ‘an essential interest … of the international community’. 8 ‘Report of the Commission to the General Assembly on the work of its forty-eighth session’ (1996) II (2) Yearbook of the International Law Commission, 61 (emphasis added). 9 ASRIWA (n 1) art 25(1)(a) (emphasis added).

Necessity is only available if the conditions in Article 25(1) are cumulatively satisfied. First, breaking the international obligation is the ‘only way for the State to safeguard an essential interest’.10 Second, the interest must be ‘against a grave and imminent peril’.11 Third, the wrongful act cannot ‘seriously impair an essential interest of the State or States toward which the obligation exists’,12 which is considered an objective balancing test.13 The construction of Article 25 is also framed in the negative, where necessity is not enlivened unless all three conditions are satisfied, highlighting the exceptional nature of this plea. Apart from satisfying the three conditions above, Article 25(2) lists the caveats that would preclude the invocation of necessity. First, the plea cannot be invoked if the primary rule excludes the invocation of necessity.14 For example, International Humanitarian Law (‘IHL’) as a primary corpus of law prohibits the plea of necessity during war, and States cannot rely on Article 25(1) to circumvent its IHL obligations. Second, necessity is also subject to the ‘clean hands’ doctrine, where this plea cannot be invoked if the State has contributed to the situation of necessity.15 Furthermore, necessity is also inapplicable as a defence to breach of peremptory norms. In effect, necessity is a plea that is dependent on the nature of the breach itself, as the primary rule will determine whether Article 25 can apply. B 1

Determining an ‘Essential Interest’

‘Essential Interest’ of the State

The ILC Commentary on ASRIWA does not define ‘essential interest’, instead emphasising the protean nature of this plea as it ‘depends on all the circumstances, and cannot be prejudged’. 16 Determining exactly what constitutes an ‘essential interest’ of the State is highly subjective, with the difficulty in ‘finding the limits to a State’s discretion to characterise the interests as essential’.17 The ILC’s reticence to offer greater guidance has consequently left the content of ‘essential interest’ to be contested by States in international judicial fora. International courts and tribunals have adopted a strict reading of ‘an essential interest of the State’. In Israeli Wall Advisory Opinion, the ICJ concluded that Article 25 cannot be invoked to justify constructing a wall to protect the life of its citizens, as there were other lawful means available.18 The restrictive approach is echoed in CMS Gas v Argentina, where an International Centre for Settlement of Investment Disputes (‘ICSID’) Tribunal found that protecting investors under the US-Argentina bilateral investment treaty is not an essential interest of the State, even if it is an important interest.19

Ibid. ASRIWA (n 1) art 25(1)(a). 12 ASRIWA (n 1) art 25(1)(b). 13 James Crawford, State Responsibility, The General Part (Cambridge University Press, 2013) 307. 14 ASRIWA (n 1) art 25(2)(a). 15 ASRIWA (n 1) art 25 (2)(b). 16 International Law Commission, Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th sess, Agenda Item 162, Supp No 10, UN Doc A/56/10 (2001) ch IV(E)(2) (‘Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries thereto’) 202 [15]. 17 Ibid. 18 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 194–5 [140]–[142]. 19 CMS Gas Transmission Company v Argentina (Award) (ICSID Arbitral Tribunal, ARB/01/8 12 May 2005) 103 [358]. 10 11

‘Essential Interest’ of the International Community

If a State invokes Article 25 on the basis of protecting essential international community interests, the text of Article 25(1)(b) suggests that this interest would need to outweigh an ‘essential interest of the State or States toward which the obligation exists, or of the international community as a whole’. This creates a ‘choice of evils paradigm’,20 where interests are pitted against one another within a rubric that is not clearly defined. Mongolia has noted the ‘difficulty of balancing individual State interests against international obligations’ and called for strict limitations to prevent abuse.21 Heathcote suggests that ‘social consensus among the international community’,22 on what constitutes an essential interest of the community may be a sensible starting point. This is a momentous task that requires consideration of the competing values, interests and ideologies at play within the geopolitical sphere. Although it may be seemingly obvious that the task of international law is precisely to create legal rules that apply regardless of your values, interests and ideologies, the ways in which emerging international law concepts are understood by lawyers ‘belie the field’s claim to universality and perpetuate certain forms of difference and dominance’.23 Roberts opines that ‘Western States have played a critical and disproportionate role in the creation of international law to date’.24 Breaking this cycle of domination in international law will allow for more genuine debate into the scope and rationale for an ‘essential interest in the international community’. Further, Sloan postulates that determining what constitutes an ‘essential interest of the international community’ is a value laden assessment where ‘one state’s safeguarded essential interest will often be another’s seriously impaired essential interest’.25 Thus, reaching a consensus about the precise scope of an international community interest will be incredibly challenging. C

Codification as a Constraint

The ILC debates surrounding Article 25 reveal its contentious history and the concerns that the doctrine may be susceptible to abuse. During the first reading of the draft articles, the ILC declared it ‘too deeply rooted in legal thinking’ for this topic to be silenced, as 'no single legal order had entirely done away with the concept of state of necessity’. As such, Special Rapporteur Roberto Ago proclaimed that: too sweeping and too rigid a prohibition ran the risk of shortly being bypassed by the spontaneous evolution of the law. The most advisable attitude was to acknowledge the applicability of state of necessity, if need be limiting its effect or even ruling it out altogether in certain areas.26 Ago was of the view that domesticating the plea by including it in ASRIWA is the best way to control and confine the plea. As such, the high threshold for a successful invocation is hardly a coincidence and reflects the intention of the drafters to restrain the plea through codification.

20 Robert D Sloan, ‘On the Use and Abuse of Necessity in the Law of State Responsibility’ (2012) 106(3) American Journal of International Law 337, 451. 21 James Crawford, Second report on State responsibility, 51st sess, Agenda Item 3, Doc A/CN.4/498 and Add.1-4, (17 March 1 and 30 April, 19 July 1999) 74 [284]. 22 Sarah Heathcote, ‘Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Necessity’ in James Crawford et al (eds), The Law of International Responsibility (Oxford University Press, 2010) 491, 497. 23 Anthea Roberts, Is International Law International? (Oxford University Press, 2017) 1. 24 Ibid 280. 25 Sloan (n 20) 488. 26 ‘Summary records of the meeting of the thirty-second session’, (1980) I Yearbook of the International Law Commission 160 [34].

The strict text and cumulative conditions of Article 25 coupled with the restrictive reading from international courts and tribunals have prevented abuse of the plea since its codification. Codification, far from only clarifying and noting down the law in writing, also reduces a State’s ability to argue and shape necessity as a doctrine on their own terms through State practice. States are trapped by this codified standard because it is a clear criterion against which State practice can be assessed. Once a given State uses this to contest the conduct of another State, they themselves become vulnerable to being judged against the same standard, trapping them within the strict language of Article 25. Thus, omitting the doctrine of necessity from ASRIWA would have permitted States to expand develop the doctrine without the current checks and balances in place, such as the strict wording in Article 25. As such, the object and purpose of Article 25 functions both overtly and covertly. On the surface, it provides State with some relief from its international obligations in the face of great peril. Under the surface, the plea effectively prevents States from excessively using their power to influence the development of the ‘necessity’, a concept historically considered to be a ‘right’ of the State. Despite the difficulties in reaching consensus on the exact scope of an ‘essential interest of the community’, perhaps consensus will not be required at all. The ILC Commentary does not outline the ambit of an ‘essential interest of the state’, and courts have continued to apply Article 25 with continued success. As Ago asserts ‘if [the concept of necessity] is driven out the door it would come back through the window in another form’.27 Changing the wording from ‘essential interest of the State’ to ‘an essential interest’ expands the scope of essential interests captured, hence also expanding its protection against potential abuse.28 III

CONCLUSION

The contested nature of Article 25 to justify the safeguarding of an essential interest of the international community does not prohibit a State from invoking the plea. However, whether a State can successfully apply the plea to justify a wrongful act requires careful consideration of the wording of the text, and the tendency of international courts and tribunals to read ‘essential interest’ narrowly. Article 25 holds the dual function of offering States protection from responsibility under strict conditions, whilst also limiting a State’s ability to abuse the plea to advance its interests, whether or not it is under the guise of a community interest. The strict conditions inherent in the wording of Article 25 render the plea available only in the most exceptional circumstances, regardless of whose essential interests are at stake. When interpreted alongside the restrictive reading of what constitutes an ‘essential interest’ in the case law, the rule has evolved in a way that largely mitigates the chances of abuse — further reducing the contemporary accessibility of the plea. By codifying necessity in ASRIWA, the ILC has demonstrated an astute understanding of the making of international law, and immense foresight into the impact of this process on international legal relations. The interpretation and application of the law is never static, and the scope and limit of Article 25 is still subject to future interpretation as the international legal landscape

‘Documents of the Thirty-Second Session (Excluding the Report of the Commission to the General Assembly)’ (1980) II(1) Yearbook of the International Law Commission 51 [80]. 28 At the time of writing, the author is not aware of any State successful invoking Article 25 to justify a wrongdoing based on the essential interests of a State or the international community. 27

continues to evolve. Indeed, this echoes the recommendation of the ILC to ‘allow such a process of testing and assessment to continue…on a case-by-case basis’.29

29 James Crawford ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’, (2002) 96 (4), American Journal of International Law 874, 890.

RECONCILING AUSTRALIA’S COMMITMENTS UNDER THE ARTEMIS ACCORDS AND MOON AGREEMENT: RECOMMENDATIONS TO UPDATE THE AUSTRALIAN CIVIL SPACE STRATEGY Kriti Mahajan Australia has signed and ratified all five major space treaties, which sets an example for other spacefaring nations and those still developing their capabilities. However, many commentators are concerned that its signature to the Artemis Accords,1 a non-binding agreement, may need to be reconciled with its commitment to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies2 (‘Moon Agreement’). This essay argues that the two instruments do require reconciliation. Section one outlines the objectives of the Artemis Accords and Australia’s obligations under the Moon Agreement. Section two evaluates the debates around two of the most contentious topics in the Artemis Accords, namely the apparent inconsistency between regimes of resources extraction and resource use under the Artemis Accords and the Moon Agreement. Section three evaluates the Australian Civil Space Strategy 2019–2028 (‘ACSS’). This essay suggests that Australia can take a lead in solving the legal problem of a lack of consistent global space resource extraction governance by updating Phase 3 of the ACSS. In doing so, Australia can signal its strategic space interests and reconcile its competing obligations under the Artemis Accords with the Moon Agreement. I

BACKGROUND AND OVERVIEW OF THE ARTEMIS ACCORDS AND MOON AGREEMENT

Artemis Accords

The Artemis Accords are a non-binding instrument of space governance which aim to establish central principles that serve as the foundation for future bilateral agreements between the United States (‘US’) and each partner State.3 The Accords are part of a broader Artemis Program led by the National Aeronautics and Space Administration (‘NASA’), which aims to facilitate more human exploration of the Moon, Mars, and other celestial bodies.4 The US is pursuing international collaboration to realise this program’s goals practically and financially. The Accords serve as a set of guidelines for States to commit in advance of commencing those initiatives. B

Moon Agreement

Many of the provisions of the Artemis Accords align with Australia’s international obligations under the five major space treaties. For example, section 3 of the Accords requires signatories to affirm that their activities will be ‘exclusively for peaceful purposes’, which echoes Article IV of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (‘Outer Space Treaty’ or ‘OST’) which applies to

Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of The Moon, Mars, Comets, and Asteroids for Peaceful Purposes (signed 13 October 2020) (‘Artemis Accords’). Opened for signature 18 December 1979, 1363 UNTS 3 (entered into force 11 July 1984) (‘Moon Agreement’). 3 Rossana Deplano, ‘The Artemis Accords: Evolution or Revolution in International Space Law?’ (2021) 70(3) International and Comparative Law Quarterly 799, 801. 4 Artemis Accords (n 1), preambular paras 1, 3, 5. 1

the Moon and other celestial bodies.5 These sections of the Accords, and others that merely add detail to or reaffirm existing rights and obligations to space law treaties which Australia has already ratified, are unproblematic. However, there is debate as to whether Australia’s conclusion that the Accords are consistent with Australia’s international space law obligations, as was proclaimed by Australia at the 60th Legal Subcommittee of the United Nations Office for Outer Space Affairs is accurate.6 Table 1 outlines some key differences in the obligations imposed by both instruments. Artemis Accords

Moon Agreement

Section 3: ‘The Signatories affirm that cooperative activities under these Accords should be exclusively for peaceful purposes’ (emphasis added). Section 8(1): ‘The Signatories retain the right to communicate and release information to the public regarding their own activities. The Signatories intend to coordinate with each other in advance regarding the public release of information that relates to the other Signatories’ activities under these Accords in order to provide appropriate protection for any proprietary and/or exportcontrolled information’. Section 10(1): ‘The Signatories note that the utilization of space resources can benefit humankind by providing critical support for safe and sustainable operations’.

Article 3(1): ‘The moon shall be used by all States Parties exclusively for peaceful purposes’ (emphasis added). Article 6(2): ‘States Parties shall have regard to the desirability of making a portion of such samples available to other interested States Parties and the international scientific community for scientific investigation’.

Section 10(2): ‘The Signatories emphasize that the extraction and utilization of space resources… should be executed in a manner that complies with the Outer Space Treaty and in support of safe and sustainable space activities. The Signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article II of the Outer Space Treaty…’ (emphasis added). Section 11 creates a regime of ‘safety zones’ that ‘protects public and private personnel, equipment, and operations from harmful interference’.

Article 11(5): Parties ‘undertake to establish an international regime… to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible’. One of the main purposes of this regime is ‘[a]n equitable sharing by all States Parties in the benefits derived from those resources’: art 11(8)(d).

Article 11(1): ‘The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement and in particular in paragraph 5 or this article.’

Article 11(3): ‘The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof…’.

Table 1: Key differences between the obligations under each agreement

5 Artemis Accords (n 1) s 2; Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) art IV. 6 Australia, Statement, 60th Legal Subcommittee of the United Nations Office for Outer Space Affairs, 1004th mtg, Agenda Item 14 (4 June 202) 1 <https://www.unoosa.org/documents/pdf/copuos/lsc/2021/statements/item_14_Australia_ver.1_4_June_PM.pdf>.

CONFLICTING RESOURCE EXTRACTION OBLIGATIONS

Governance of Extracted Resources

The nature of resource extraction regimes under the Artemis Accords and Moon Agreement differ substantially. Under Article 11(5) of the Moon Agreement, Australia agreed to ‘establish an international regime… to govern the exploitation of natural resources of the moon.’7 Now that the technology and economic demand for celestial mining make it increasingly feasible, the international regime envisaged in the Moon Agreement will have to be created in the imminent future.8 The Moon Agreement’s international regime’s primary purpose is for ‘equitable sharing by all State Parties in the benefits derived’ from celestial resources.9 On the other hand, the Artemis Accords provide that signatories may conclude contracts amongst themselves as the governance structure for space resources. This stems from the American interpretation of the OST, which rejects the global commons nature of outer space.10 While the extent to which benefits of outer space activities must be shared is a point of contention between the two obligations, the Artemis Accords do not agree to establish any space governance framework or institutional arrangement in the way the Moon Agreement does.11 It is possible that Australia can participate in the Moon Agreement’s regime and potentially encourage other Artemis partner states to do so as well when their interest align. However, this is a delicate balance. Australia risks being excluded from the shared benefits of space exploration/exploitation under the Artemis Program if it insists on the concurrent applicability of an international regime of resource exploitation based on equity. Conversely, Australia risks being the subject of diplomatic pressure from Moon Agreement signatories if it attempts to contract out space resource exploitation. B

Resource Usage

Resource usage is another contentious issue which needs to be reconciled. The Artemis Program envisions that its member states will be able to use the resources they extract exclusively pursuant to the arrangements amongst partner states. The Moon Agreement is more inclusive towards all states in both governance and resource sharing. Section 10(2) of the Artemis Accords allows for the extraction of space resources from the Moon, Mars, asteroids, and other such space resources, stating that this ‘does not inherently constitute national appropriation under article II of the OST’.12 At face value, the Moon Agreement does not prohibit commercial, or any other kind of extraction contemplated by the Artemis Program. However, Article 11 deems the Moon’s natural resources to be the ‘common heritage of mankind’ such that no part of its natural resources shall become the property of any state or non-governmental entity. However, importantly, the Accords are silent on the ‘common heritage of mankind’. Australia could find itself in breach of the Moon Agreement if it keeps or uses space resources to the exclusion of non-Accord partners, who under the ‘common heritage of mankind’ principle (Emphasis added). Andrea Sommariva et al, ‘The Economics of Moon Mining’ (2020) 170 Acta Astronautica, 712, 713; Moon Agreement (n 2) art 11(5). 9 Moon Agreement (n 2) art 10(7)(d). 10 Fabio Tronchetti and Hao Liu, ‘Australia Between the Moon Agreement and the Artemis Accords’, Australian Outlook (Blog Post, 2 June 2021) <https://www.internationalaffairs.org.au/australianoutlook/australia-between-the-moonagreement-and-the-artemis-accords/>. 11 Deplano (n 3) 818. 12 Artemis Accords (n 1) s 10. 7 8

would be entitled to access the resources even if they do not have the funding or technology to exploit them. In the context of space, this principle would require nations to manage rather than own areas of space and its resources.13 The US has long opposed the common heritage principle and has refused to sign the Moon Agreement.14 It is possible that it might therefore try to use the combined financial and technological strength of the Artemis Accords partners to exploit space resources before other nations have a chance to do so. This is consistent with the design of the Artemis Accords, which incentivises partner nations to do the same while being dependant on the United States for access to the Artemis Program. Similarly, even scientific data can be reserved as exclusive under the Accords. Under Section 8, signatories ‘retain the right to communicate’ (or withhold) scientific information from the public and private sector parties (who are not acting on behalf of a signatory state). In contrast, Article 6(2) of the Moon Agreement requires State parties to make a portion of their samples available to interested parties. It is unclear whether Article 6(2) would require parties to make a portion of each sample available, or whether making some portion of all their samples available would suffice. If Australia engages with an Artemis Accord party who does not agree to the public release of information citing proprietary or export-control reasons and Australia may need to rely on the latter interpretation and reconcile the two commitments by only sharing a portion that is not subject to proprietary concerns with the international community. Furthermore, commercial and scientific resources are only two of the many types of space resource extraction that is or will be possible on the Moon. Under the Article 3(1) of the Moon Agreement, every type of usage of the Moon ‘shall’ be exclusively for peaceful purposes. In contrast, cooperative activities under Section 3 of the Artemis Accords only require that cooperative activities ‘should’ be for peaceful purposes. Such a slight difference in language can have considerable legal consequences because ‘shall’ conveys a responsibility States must uphold, whereas ‘should’ has less legal effect implying an ideal States can aim for. Accordingly, activities with mixed military purposes may not be breaching the Accords while breaching the Moon Agreement which is binding on Australia and will carry legal consequences for that breach. Article 3(4) of the Moon Agreement clarifies that using military personal for scientific research is deemed peaceful in contrast with using them to conduct military manoeuvres. Such Artemis Program endeavours have the potential to complicate Australia’s obligations as a signatory to both instruments. III

POLICY RECOMMENDATIONS

Given the need to reconcile some aspects of these two instruments, Australia should update its current national space policy (ACSS). A more clearly communicated national space policy would signal to other states and investors what Australia’s ambitions are, and help clarify the obligations it will prioritise. For example, Phase 3 (2021-2018) of the ACSS — which further develops the four strategic space pillars of international cooperation, increasing national capability, responsible regulation and workforce building — could be updated outline Australia’s responsibility to preference binding agreements such as the Moon Agreement, where the another non-binding instrument (such as the Artemis Accords) poses a conflict with it.15 This may be difficult because of the diplomatic consequences for breaching the Accords and because they are a buy-in to the Artemis Program and access to the space network and resources the US has organised. However,

13 Carol R Buxton, ‘Property in Outer Space: The Common Heritage of Mankind Principle vs the First in Time, First in Right, Rule of Property’ (2004) 69(4) Journal of Air Law and Commerce 689, 692. 14 Ibid 699. 15 Australian Space Agency, Australian Civil Space Strategy 2019–2028 (National Policy, 2019).

breaching the Moon Agreement may lead to legal consequences even though pursuing a case in international space law is very costly and thus unlikely. One deficiency in Australia’s current national Space Policy is that its ‘international’ strategic space pillar does not aim to shape developing international space law in line with Australia’s interests.16 The lack of adoption of the Moon Agreement has created an impasse in the international space law framework. Given that the feasibility of commercial space resource exploitation is increasing, there is a need to break the stalemate on governing celestial resources.17 Australia could use its unique position to clarify how the two instruments could co-exist under the ‘international’ strategic space pillar of the ACSS Phase 3, including a risk appetite for not abiding by the Accords or Moon Agreement or at least guidelines for a consistent approach to complying with Australia’s space law or diplomatic obligations.18 In this way, needing to update the national space policy to address the issues caused by Australia’s signature to both the agreements could present Australia with an opportunity to take the lead in solving the international legal problem created by the lack of robust and consistent global governance on celestial resources. IV

CONCLUSION

Thus, Australia will need to reconcile its involvement in both the Artemis Accords and the Moon Agreement. This is because the issue of resource extraction and governance is inconsistent between the two instruments. This essay suggested that Australia can take a lead in solving the legal problem of a lack of consistent global space resource extraction governance by creating a more robust national space policy. Updating the ACSS would signal Australia’s strategic space interests now when technology is making such endeavours more feasible, as well as reconciling its involvement in the Artemis Accords with the Moon Agreement.

Ibid 18. Deplano (n 3) 819. 18 Australian Space Agency (n 16). 16 17

ANALYSIS OF CHINA’S BEHAVIOUR IN THE WORLD TRADE ORGANIZATION Hongxuan Xu I

INTRODUCTION

The World Trade Organization (‘WTO’) Agreement, established by the Marrakesh Agreement,1 provides a framework for trade between states. One of the most significant ratifications was China's accession in 2001. Since the requirements of the WTO were once so far removed from China's domestic legal and administrative systems, China had to devote considerable effort to enter the WTO. However, after entry, observers claim that China's compliance with WTO Agreement has generally been inconsistent. Although China has made many bold changes to comply with WTO rules — such as lowering tariffs, opening its domestic market, and strengthening rule-based judicial adjudication — it also superficially complies with or even violates WTO rules in many ways, such as a lack of transparency, numerous disputes over intellectual property protection, and strong state capitalism.2 In light of this, this essay explores China’s accession to the WTO and inconsistent compliance behaviour. This paper applies the theoretical frameworks of realism, liberalism and constructivism to China’s accession and mixed compliance. Compared with liberalism and constructivism, this essay argues that realism best explains the behaviour of China in the WTO. In the following discussion, the essay begins with the realist theoretical account of why international law is formed and why states do and do not comply with it. In the second part of empirical assessment, starting from the shape of the WTO, realists argue that the pursuit of profit maximisation is at the heart of Chinese behaviour. Finally, the counter-arguments put forward by liberalism and constructivism are considered. II

THEORETICAL ANALYSIS

In the realist paradigm, the state is the central actor, and its goal is to maximise its interests in an anarchic global environment. Interests can be broadly defined. Besides the most basic needs of survival, they also include economic growth and welfare enhancement.3 Relative gains matter, but the interests of different states are not zero-sum. Since once one state's gain is another state's loss, countries have no reason to coordinate policies with each other.4 By contrast, it is dilemmas of common aversions and interests that motivate the establishment and maintenance of international law.5 Just like the battle of the sexes, states want to cooperate, but they have different preferences for what form it takes.6 Asymmetrical state power decides which point along the Pareto frontier will be chosen, in other words, which equilibrium point among state preferences prevails. According to realism, national power, customarily defined as the ability to make another state do what it would not otherwise do, shapes international law and determines who can benefit more

1 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995). 2 Timothy Webster, ‘Paper Compliance: How China Implements WTO Fecisions’ (2014) 35(3) Michigan Journal of International Law 525. 3 Richard H Steinberg, ‘Wanted—Dead or Alive: Realism in International Law’ in Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press, 2013) 146 (‘Realism in International Law’). 4 Kenneth N Waltz, ‘Structural realism after the Cold War’ (2000) 25(1) International Security 5. 5 Stephen D Krasner, ‘Global Communications and National Power: Life on the Pareto Frontier’ (1991) 43(3) World Politics 336. 6 Blanche Capel, ‘The Battle of the Sexes’ (2000) 92(1) Mechanisms of Development 89.

from it. Although difficult to measure, power is referrable to context-appropriate proxy variables (eg gross domestic product in the economic sphere).7 The impact of national power on international law can be seen from two aspects. Firstly, in law-making, the decision-making process usually reflects the underlying power of member states, for example, the veto power of the five permanent members of the United Nations Security Council. Secondly, in implementing international law, realists argue that compliance can be good without overt enforcement.9 For weak states, compliance is in the shadow of pressure, whereas for strong states, compliance is inherently in their interests, as international law tends to favour them. Although realism can explain and predict international laws effectively and succinctly with few variables, it also has some limits. For instance, some scholars have pointed out that realism is not good at explaining the international law dedicated to promoting normative agendas.11 However, experience shows that compliance with international law in areas such as human rights and humanitarianism is lower than in other areas, such as trade and security. Realism's strength lies exactly in interpreting the international law associated with material interests, where compliance is high.12 Besides, under the analysis of realism, national power determines almost everything, which means that international law is ultimately epiphenomenal to power. Accordingly, it is difficult for realists to explore the role of international law — in what context, how and why it has influenced the behaviour of states.13 Considering these limits, it is also essential to analyse and understand international law from other approaches. III

EMPIRICAL ASSESSMENT

The advantage of the powerful states is obvious in the field of trade, so realists believe that national power shapes the WTO. Stronger states have larger domestic markets compared with weaker states, so a certain degree of trade liberalisation will bring more net benefits to smaller countries than to larger ones. Thus, the desire of developing countries to reach trade liberalisation is stronger, while the bigger domestic market enables developed countries to get better options for negotiation. Similarly, larger countries are more capable of facing the threat of trade closure.14 Within the framework of realism, the reason for China's entry into the WTO is straightforward — it promised substantial economic growth. Both the extensive forecasts prior to China's accession and the actual situation after China's accession confirm this.16 Primarily, due to abundant cheap labour, China's exports of labour-intensive industries, such as electronics, would be greatly enhanced with easier access to international markets. The expansion of Chinese exports could displace those of other Asian and developing countries in manufacturing similar exports.17 Furthermore, under the influence of the high-tech revolution in the 1990s, China became increasingly aware of the importance of technological development. WTO membership would hopefully attract more foreign investment with new technologies and help China to improve its technological development capabilities.18 At the same time, the multilateral dispute settlement Steinberg, ‘Realism in International Law’ (n 3). Hans J Morgenthau, Politics among Nations: The Struggle for Power and Peace (Knopf, 5th ed, 1978). Steinberg (n 3). 12 Michael W Doyle and Edward C Luck, International Law and Organization: Closing the Compliance Gap (Rowman & Littlefield, 2004). 13 Steinberg, ‘Realism in International Law’ (n 3). 14 Richard H Steinberg, ‘In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO’ (2002) 56(2) International Organization 339. 16 James Agarwal and Terry Wu, ‘China's Entry to WTO: Global Marketing Issues, Impact, and Implications for China’ (2004) 21(3) International Marketing Review 279. 17 Thomas Rumbaugh and Nicolas Blancher, ‘China: international Trade and WTO Accession’ (Working Paper 04/36, International Monetary Fund, March 2004). 18 Penelope B Prime, ‘China joins the WTO: How, Why, and What Now?’ (2002) 37(2) Business Economics 26. 7 9

procedures under the WTO could also help China better handle trade conflicts in the future. As a WTO member, China has the opportunity to influence the development of international trade rules and have more credibility in dealing with their own grievances over dumping and other trade issues.19 The enormous benefits that China could gain from entering the WTO, as mentioned above, are the fundamental reason for it signing the WTO Agreement. In contrast to realism, liberalism sees state interests as a function of individuals and domestic interest group preferences, so in this paradigm, winners from global trade are the main factor driving China's entry into the WTO and its further compliance. Beginning in 1978, China embarked on far-reaching economic reforms, which involved a transition from a planned to a market economy and meant more significant links with world trade.20 On the economic front, the central government devolved power to local governments, and local governments further decentralised power to enterprises, which gives enterprises more autonomy and dynamism.21 Then, as businesses grow and trade across borders increases, it is in the interests of many enterprises to integrate into the regular international trading system through the WTO. Besides, liberalists believe that China's compliance with WTO relies on the internalisation of rules, rather than on reciprocity and retaliation between states.22 When China entered the WTO and implemented trade liberalisation, import competition eliminated some domestic firms that opposed liberalisation. Such elimination led other firms to reform themselves accordingly with the aim of reducing the need for protection. As a result, more exporters benefited from free trade and trade liberalisation became more supportive.23 However, as an autocratic state, China's domestic interest groups have very limited influence on the government's choices. When compliance with the WTO is in the interests of domestic interest groups, but contrary to the stability of the regime, the Chinese government will not conform to those interest groups. The example of the United States (‘US’) complaint against Chinese laws restricting trade and market access for cultural products is an example. In the interests of regime stability, the Chinese government strictly censors foreign cultural products, mainly through the General Administration of Press and Publication, and only allows state-owned enterprises to import these publications. These regulations harmed not only foreign companies, but also domestic private companies associated with the cultural industry. However, when China amended the illegal regulations24 proposed by the panel, it did not solve all the inconsistencies. Issues such as importing films may have been reconciled only between the US and China, while the restricted access to the cultural market remains for other WTO members and Chinese domestic private enterprises.25 Therefore, it may be a mere coincidence that social preference can be used in some cases to explain China's behaviour at the WTO. From a constructivist's perspective, China changed its behaviour and accepted international legal norms through socialisation after entering the WTO. In contrast to realism and liberalism, constructivists believe that identity and interests are formed in social interaction, rather than

Rumbaugh and Blancher (n 17). Seung Ho Park, Shaomin Li, and David K Tse, ‘Market Liberalization and Firm Performance during China's Economic Transition’ (2006) 37(1) Journal of International Business Studies 127. 21 Yingyi Qian and Barry R Weingast, ‘China's Transition to Markets: Market-Preserving Federalism, Chinese Style’ (1996) 1(2) Journal of Policy Reform 149. 22 Andrew Moravcsik, ‘Liberal Theories of International Law’ in Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press, 2013) 83. 23 Prime (n 18). 24 See Appellate Body Report, China — Measures Affecting Trade Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R (21 December 2009). 25 Webster (n 2). 19 20

always being inherent and unchanging.26 This is evident in the changes that have occurred since China entered the WTO. When China was initially faced with disputes, it often sought a quick settlement and avoided going through WTO adjudication. For example, when the US accused China of about value-added tax on integrated circuits in 2004, China withdrew the related measures just two months after the US requested consultations.27 Then, with continuous learning and imitation, China became increasingly familiar with the WTO rules and made a change in 2006. For the first time, China did not rush to compromise in the face of US, European Community and Canada's allegations of measures affecting auto parts but allowed the panel to adjudicate the legality of its measures and, based on the adjudication, changed the measures deemed unlawful, completing the dispute settlement process in the WTO.28 China even filed its first independent formal complaint on the European Union's anti- dumping measures on footwear. Meanwhile, China is also increasingly participating in the twice-monthly meetings of the dispute settlement body, selectively intervening where it is interesting.29 From the initial avoidance of litigation to utilising the dispute settlement mechanisms, it is the WTO that has changed China's attitude to international rules and norms through constant and intense social interaction. Although the above changes in China's behaviour in the WTO are fundamental, realism can better explain them. Firstly, China's gross domestic product (‘GDP’) has increased year on year since joining the WTO, from USD1.3 trillion in 2001 to surpassing Japan as the world's second-largest economy with USD6.1 trillion by 2010.30 The rapidly growing GDP has dramatically increased China's bargaining power within the WTO.31 Thus, China has become more active within the WTO and more willing to use the rules to defend its interests. Furthermore, the interests of China, in essence, have always remained the same — the aim is to maximise economic benefits, albeit with some superficial concessions and losses. For instance, in response to the US complaint that China's treatment of counterfeit products violated the Agreement on Trade-Related Aspects of Intellectual Property Rights32 (‘TRIPS’), China amended its regulatory requirements, but only for imported products — it did not allow imported counterfeit goods to enter the market only after removing the trademark.33 The large number of counterfeits produced in China were not covered, and this part is the primary interest of China. According to Organisation for Economic Cooperation and Development (‘OECD’) estimates in 2007, the total value of counterfeit goods produced in China is about USD140 billion per year, accounting for 4% of Chinese GDP and near 70% of the worldwide counterfeit goods.34 Therefore, amending the regulations to restrict only counterfeit imports is cosmetic compliance and does not touch on the fundamental interests of China.

Jutta Brunnée and Stephen J Toope, ‘Constructivism and International Law’ in Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press, 2013) 119. 27 Marcia Don Harpaz, ‘Sense and Sensibilities of China and WTO Dispute Settlement’ (2010) 44(6) Journal of World Trade 32. (2010). 28 Ibid. 29 Ibid. 30 ‘GDP (current US$) — China’, World Bank Data (Database) <https://data.worldbank.org/indicator/NY.GDP.MKTP.CD?locations=CN>. 31 Steinberg, ‘Realism in International Law’ (n 3). 32 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C (‘Agreement on Trade-Related Aspects of Intellectual Property’). 33 Donald P Harris, ‘The Honeymoon Is Over: The US-China WTO Intellectual Property Complaint’ (2008) 32(1) Fordham International Law Journal 96. 34 Alan Zimmerman and Peggy E Chaudhry, ‘Protecting Intellectual Property Rights: The Special Case of China’ (2009) 10(4) Journal of Asia-Pacific Business 308. 26

CONCLUSION

In general, realism, a theory with the state as the central actor, revolving around the interaction of national power and interests in the anarchy, can best explain China's inconsistent compliance with the WTO Agreement. That is, China has always focused on maximising its gains while avoiding costs in the WTO. Although liberalism questions what constitutes ‘national interest’, arguing that the individuals or groups benefiting from global trade are the dominant factors guiding China's behaviour in the WTO, this explanation does not hold up due to China's nondemocratic system of government which privileges considerations of regime stability. On the other hand, constructivism suggests that China's behavioural change stems from a growing identification with the rules of WTO by social interaction. However, some of China's noncompliance with the WTO Agreement cannot be explained in this framework. These findings can help other WTO members to better predict and respond to China’s behaviour in the WTO and thereby formulate better policy.

IS A NEW APPROACH TO THE JUS AD BELLUM OF CYBER WARFARE NEEDED? Chris Lasek The use of ‘cyber warfare’ raises novel questions of the applicability of jus ad bellum. By looking specifically at the idea of ‘use of force’ under Article 2(4) of the Charter of the United Nations (‘UN Charter’) and applying this definition (or lack thereof) to the jus ad bellum for cyber warfare, I question if a whole new approach to the definitions of ‘use of force’ in relation to cyber warfare is needed to trigger a conflict and enable states a greater scope for resorting to proportional selfdefence. One of the main problems that has arisen is the attempt to tac cyber warfare onto the current framework of international law. If we hypothetically consider the use of cyber warfare in conjunction with an ‘armed attack’ under Article 51 (eg, the dropping of bombs combined with a cyber-attack on a military object) then there is little problem in the definitions around ideas of what constitutes a ‘armed attack’ against a state, initiating a right to self-defence. This is because there is usually distinct tests of ‘scale and effect’ when these hostilities occur, due to physical damage, thus allowing the targeted state to use force in self-defence. The argument has been made that cyberattacks can be viewed in a ‘law-by-analogy’ approach and can be grafted onto current legal framework,1 much in the same way that chemical warfare was applied to uses of force.2 Thus the same could be done with ideas of cyber ‘uses of force’, grouping it under the existing framework of international law. Although this seems like an attractive option, it downplays the distinct and unique nature of cyber warfare. While the use of ‘conventional’ tools of state warfare are easily classified as a ‘use of force’ because they involve a kinetic element with clear physical violence and destructive outcomes, cyber warfare is much more discreet. When defining a cyber ‘use of force’ the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (‘Tallinn Manual’) states ‘[t]he Experts found the focus on scale and effects to be an equally useful approach when distinguishing acts that qualify as uses of force from those that do not’.3 But what is the threshold of scale and effects that pushes a cyber operation into the category of ‘use of force’? As Fleck notes the Tallinn Manual does not give us clear guiding lines on ‘whether a cyber-attack is below the threshold for the use of force, or a use of force, or a use of force amounting to an armed attack’.4 A note worth making, is that in the same way that the UN Charter rejects the notion of economic coercion as a ‘use of force’, the Tallinn Manual takes the same approach stating that ‘a State’s prohibition of e-commerce with another State designed to cause negative economic consequences [does not] qualify as a use of force’.5 However Boer challenges this approach, making the pertinent point that if we take an effects based approach to analysing scale and effects, economic interference should be defined as a ‘use of force’. 6 This is mainly due to the wide scale havoc that can now be wrought on a society when disrupting financial systems in cyberspace.7

1 Lianne JM Boer, ‘Restating the Law as It Is: On the Tallinn Manual and the Use of Force in Cyberspace’ (2013) 5(3) Amsterdam Law Forum 4, 9. 2 Paul A Walker, ‘Rethinking Computer Network “Attack”: Implications for Law and US Doctrine’ (2011) 1(1) National Security Law Brief 33. 3 Michael N Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Warfare (Cambridge University Press, 2017) (‘Tallinn Manual’) 331. 4 Dieter Fleck, ‘Searching for International Rules Applicable to Cyber Warfare — A Critical First Assessment of the New Tallinn Manual’ (2013) 18(2) Journal of Conflict and Security Law 331, 336. 5 Tallinn Manual (n 3) 331. 6 Boer (n 1) 10. 7 Ibid.

If we take the example of the cyber operations against Estonia in 2007 questions of ‘use of force’ threshold are palpable. In the wake of protests by ethnic Russians in Estonia, Estonia was subject to wide scale distributed denial-of-service (‘DDoS’) operations which targeted a number of government and media outlets, as well as banks and internet providers.8 The overall effects were certainly disruptive however the estimated cost of the operations cost the Estonian economy between USD27 to 40 million.9 Commentators called what happened ‘attacks’ and both the Estonian Prime Minister and Foreign Minister claimed they were ‘under attack’. Estonia blamed Russia, however this was never proven. According to customary international law and the finding of the ICJ in the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v America)10 case these operations would not have met the ‘use of force’ threshold to initiate any self-defence measures or at least legal recourse. Without a clear interpretation on what exactly amounts to a ‘use of force’ there is left a great deal of grey area for a belligerent state to operate which may not meet the level of a ‘use of force’ and which would allow self-defence measures to kick in, as we can see in the Estonian example. By this interpretation, non-destructive computer network exploitation, espionage, denial-of-service attacks and other invasive but non-destructive cyber operations may not initiate a right to selfdefence.11 The argument could be made that if State A wants to undermine the government or military preparedness of State B it need only run large scale hinderance ‘operations’ which do not cause harm and would not be deemed to constitute an ‘attack’ or ‘use of armed force’ under international law. The problem arises that if the definition for what is constituted as a ‘use of force’ requires large ‘scale and effects’ but is indefinite a victim state does not have a legal standard against which they can measure the attack. Thus the victim state of non-destructive but severe ‘operations’ might treat these as ‘uses of force’ and while they haven’t caused any damage, death and/or harm it could be argued that the ‘scale and effects’ were great enough. Therefore, the defending state may justify a kinetic or cyber retaliation on their enemies, turning the victim state into an aggressor under international law as they have been provoked but no harm was caused,12 essentially entrapping the victim state in the law. So while sources of law on cyber warfare and particularly the Tallin Manual provide us with a good base on which to begin, the jus ad bellum in relation to cyber warfare must be built upon. As it must be noted that the Tallin Manual itself states it 'is an expression solely of the opinions of the International Group of Experts, all acting in their private capacity’13 and is not binding. As the world becomes ever more interconnected and the cyber world encroaches on the physical realm, there should be a revision on the rules around the ‘use of force’ to provide more definition on what is acceptable/unacceptable. Ultimately, we should lower the threshold for matters relating to cyber operations to allow states more recourse to proportional self-defence, legal recourse and accountability, rather than simply trying to fit a square peg in a round hole.

8 Samuli Haataja, ‘The 2007 Cyber Attacks against Estonia and International Law on the Use of Force: An Informational Approach’ (2017) 9(2) Law, Innovation and Technology 159, 160. 9 Ibid 161. 10 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v America) (Judgement) [1986] ICJ Rep 14, 93. 11 Michael N Schmitt ‘Cyber Operations and the Jus in Bello: Key Issues’ (2011) 87 International Law Studies 89, 95. 12 Ibid 104. 13 Fleck (n 4) 336.

WHAT POLITICAL FACTORS EXPLAIN CHINA’S CONTINUED NONRATIFICATION OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT? Emma Brindley I

INTRODUCTION

The International Criminal Court (‘ICC’) represents the most significant attempt by the international community to enforce international criminal law. This institution is empowered under the Rome Statute of the International Criminal Court1 (‘Rome Statute’) to transfer state jurisdiction over criminal justice proceedings to an international institution, thus holding the power to diminish state sovereignty.2 The nature of the ICC’s power is highly controversial and ratification of this international institution has not been supported by many powerful states. This paper will address the political factors that explain China’s continued non-ratification of the Rome Statute. Focusing on China’s relationship with the ICC allows us to expand our understanding of ratification patterns of the Rome Statute as China is a significant actor in the promotion of an international criminal legal process. Theories of international relations have provided different accounts for the non-ratification of the Rome Statute. This paper argues that constructivism holds the greatest explanatory power when considering the non-ratification of the Rome Statute as it accounts for the ideas and norms which shape the nature of China’s identity and interests that prioritise state sovereignty and non-interference in domestic affairs. This paper will begin by providing an overview of the constructivist mechanism that explains nonratification of international treaties. This mechanism will then be applied to the case of China and the ICC and compared to the explanations offered by realism and liberalism to demonstrate constructivism’s superior explanatory power of this international law phenomenon. II

A CONSTRUCTIVIST EXPLANATION FOR NON-RATIFICATION OF INTERNATIONAL TREATIES

Constructivist mechanisms are valuable tools in understanding the politics behind international law as international law is itself normative.3 International norms are standards of behaviour created through mutual expectations in the international system and are shown to have powerful effects on state foreign policy decisions.4 Constructivism examines the interrelationship between norms and social identities. It postulates that actors create and promote norms through their interactions that shape state identities and interests, which in turn influence their foreign policy decisions.5 Constructivists focus on culture, ideas, shared knowledge and social norms as the facilitators of state identities and interests.6

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002). 2 Beth A Simmons and Allison Danner, ‘Credible Commitments and the International Criminal Court’ (2010) 64(2) International Organization 225, 228. 3 Jutta Brunnée and Stephen J Toope, ‘Constructivism and International Law’ in Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press, 2013) 119, 119. 4 Ibid. 5 Ibid. 6 Brunnée and. Toope (n 2) 124. 1

Thus, social structures, which are created by international norms, constrain, enable and constitute the choices of actors, thus shaping the nature of world politics.7 Constructivists argue that state and actor interests are formed either before or simultaneously with the formation of state identity, rather than before social interaction as other international relations theories have argued.8 Actors define their interests in both material and non-material forms and both play an important role in shaping the actor’s identity and behaviour.9 Thus, the behaviour of actors can be explained by instrumental rationality or logic of appropriateness, with the latter accounting for states behaving in ways they believe their identity means they should.10 It should be noted that states are the target of the processes of norm socialisation that facilitate state identity and interest formation.11 Since constructivism focuses on the actors and processes that influence states, the causal mechanism presented by this paper will focus on non-state actors, such as intergovernmental organisations (‘IGOs’) and non-governmental organisations (‘NGOs’). These actors have played a catalytic role in the creation, promotion and diffusion of norms and their behaviour has influenced the design of international treaties. This in turn has significant impacts on ratification patterns. Thus, non-state actors have shaped state decisions to ratify treaties through norm entrepreneurship. The following will investigate this process in greater detail. The causal mechanism offered by constructivism in explaining non-ratification patterns begins in an environment of international norms where non-state actors perform the role of norm entrepreneurs. 12 These norm entrepreneurs socialise states with certain norms, shaping both state identities and interests.13 These identities and interests determine whether a state chooses to ratify or reject international treaties by determining which option appears of the greatest benefit or appropriateness.14 IGOs can act as norm entrepreneurs by developing, practising and privileging particular norms that create relationships based on shared or opposing values and interests.15 The rules of procedure, technical expertise and offices (such as Secretariats) are examples of the key institutional features of IGOs that filter particular norms and create focal points for both normative harmony and contestation, all of which shape state identities and normative beliefs. This explains ratification patterns of international treaties, as it can be observed that states support treaties that align with their identity and values that were shaped by their socialisation with norms under various IGOs.16 Accordingly, IGOs have the power to construct state identifies (for example, as ‘developing country’ or ‘Western country’), which influences who these actors perceive as allies and enemies.17 This affects ratification patterns of international treaties as states are motivated to support treaties that provide benefits and support to the values of themselves and their allies, and reject treaties that fail to do so. Thus, the non-ratification of treaties can be explained as a result of the norm

7 John Gerard Ruggie, ‘What Makes the World Hang Together? Neo-Utilitarianism and the Social Constructivist Challenge’ (1988) 52(4) International Organization 855, 875. 8 Brunnée and Toope (n 2) 121. 9 Ibid. 10 Caroline Fehl, ‘Explaining the International Criminal Court: A “Practice Test” for Rationalist and Constructivist Approaches’ (2004) 10(3) European Journal of International Relations 357, 365. 11 Ibid. 12 Brunnée and Toope (n 2) 124. 13 Ibid. 14 Fehl (n 10) 365. 15 Aufa Radzi, ‘The Non-Participation of ASEAN Countries In the International Criminal Court: A Constructivist Perspective’ (Master’s Thesis, Hacettepe University School of Social Sciences, 2019) v. 16 Ibid. 17 Ibid.

entrepreneurship of IGOs shaping state identities and interests by creating social structures of shared norms and values that states want to protect. NGOs also play an important role as norm entrepreneurs. Rather than creating social structures of values, NGOs operate in transnational networks and focus on lobbying states to redefine their identities and interests to reflect certain norms.18 This behaviour is prominent during the creation of international treaties, as NGOs advocate for certain norms and values by presenting reports on the material and ideological value these norms offer.19 In the case of the Rome Statute, NGOs played a crucial role in the design of controversial provisions, such as proprio motu, which reflected norms that protection against abhorrent crimes should be universal regardless of treaty membership.20 III

EMPIRICAL ANALYSIS: CHINA’S CONTINUED NON-RATIFICATION OF THE ROME STATUTE

China’s continued non-ratification of the Rome Statute provides a useful case study to apply the constructivist mechanism explored above whilst comparing its explanatory power with other theories. Since the creation of the ICC under the Rome Statute in 2002, China has refused to join the treaty despite playing a role in its design and activities.21 China has maintained significant dialogue with the Court throughout its development and has continuously expressed support for the creation of an international criminal court as a benefit to the legal structures of global governance.22 Thus, China’s decision to not ratify the Rome Statute is both interesting and useful to improving our understanding of ratification patterns of international treaties. By critically applying constructivist thought to this case study, this section will show that China’s continued non-ratification of the Rome Statute is a result of the primacy given to the norms of state sovereignty and non-interference in China’s diplomatic practices. For China, these norms are central to the state’s identity and interests, as despite not suffering from formal colonisation, for decades the state has been subject to extraterritorial jurisdiction of Western states.23 The primacy of these norms is a result of its interactions with the United Nations (‘UN’), the Association of Southeast Asian Nations (‘ASEAN’) and other IGOs/NGOs, where China was disadvantaged for non-Western behaviour deemed harmful to international peace and security. Thus, state sovereignty and non-interference emerged as cornerstone principles in areas of security and diplomatic relations as these norms protected the state from Western influence and exploitation.24 Furthermore, the value of these norms also explains why China prioritises the UN Security Council as the powers invested in the permanent members allow China to hold significant influence over the authorisation of UN and international interventions into states. These norms shaped China’s identity and interests to be reluctant to join systems that appeared to infringe on state sovereignty and values of non-interference. These norms are irreconcilable with two key institutional features of the ICC.

Fehl (n 2) 366. Ibid 367. 20 Ibid 381. 21 Dan Zhu, ‘China, The International Criminal Court, and Global Governance’ Australian Outlook (Blog Post, 10 January 2020) <https://www.internationalaffairs.org.au/australianoutlook/china-the-international-criminal-court-and-globalgovernance/>. 22 Ibid. 23 Heejin Kim, ‘Missed Opportunities in the Judicialisation of International Criminal Law? Asian States in the Emergence and Spread of the Rome Statute System to Punish Atrocity Crimes’ (2017) 35(4) Netherlands Quarterly of Human Rights 246, 256. 24 Ibid 258. 18 19

The ICC Prosecutor’s proprio motu powers under Article 15(1) is the first point of conflict.25 These powers allow the Prosecutor to initiate investigations into suspected crimes that fall within the jurisdiction of the ICC.26 They conflict with the principle of state sovereignty and have been criticised by many states, yet this provision was implemented as a result of the lobby activities of NGOs.27 China strongly opposes investing such power into the Prosecutor’s office based on concern for their independence and the lack of effective checks and balances in place.28 China has argued that these powers give the ICC Prosecutor the right to judge and rule on state conduct in a manner that significantly impedes state sovereignty.29 There are also concerns that the Prosecutor is susceptible to political influence impeding their ability to act fairly and independently.30 These concerns over the objectiveness of the Prosecutor and the potential for political bias has been used by China to explain its continued rejection of the Rome Statute.31 As a result of the primacy of the norms of state sovereignty and non-interference in China’s foreign policy, China views the proprio motu powers of the ICC Prosecutor as unacceptable and thus continues to refuse to ratify the Rome Statute. Second, China has been fiercely reserved to the inclusion of crimes of aggression, crimes against humanity and war crimes in the ICC’s jurisdiction. China’s issue with crimes of aggression stems from China’s interest in maintaining the role of the UN Security Council in protecting world peace and security which China argues would be undermined by the ICC taking jurisdiction of this crime.32 Additionally, China has argued that crimes against humanity during peacetimes and war crimes committed during internal armed conflict should not be included as customary international law holds that these are domestic offences.33 This argument is particularly important to the Chinese government, as under the ICC’s definition of crimes against humanity, China’s actions in Xinjiang and Tibet to quell extremist, separatist and terrorist violence would be subject to ICC investigations.34 Disagreement over the definitions of international crimes stems from the conflict between Chinese values and the design of the ICC. This is linked to the reluctance of China to ratify international treaties that define international crimes according to Western ideals of peace and security as the Eurocentric origins of international law have facilitated colonialism and disadvantaged non-Western states.35 Thus, China’s historical memory of being disadvantaged by international laws, such as the Treaty of Versailles, is a key social catalyst of China’s demurral towards international law underpinned by Western values. The effectiveness of the constructivist explanation for China’s rejection of the Rome Statute will be further shown by critically considering realist and liberal explanations. Realism explains China’s rejection of the Rome Statute as a result of powerful states having no interest in joining treaties 25 Kafayat Quadri, ‘The Proprio Motu Power of the ICC Prosecutor: The Reason Some States Have Refused to Ratify the Rome Statute’ (2014) 2(1) International Journal of Humanities and Management Sciences 11. 26 Ibid 11. 27 Fehl (n 2) 381. 28 Devasheesh Bais, ‘The Raison D'Etre of Non-Ratification of the Rome Statute by Asian States’ (SSRN Electronic Journal, 2012) 8 <http://dx.doi.org/10.2139/ssrn.2149964>. 29 Ibid. 30 Quadri (n 25). 31 Bing Bing Jia, ‘China and the International Criminal Court: Current Situation’ (2006) 10 Singapore Year Book of International Law 87, 93. 32 Zhu (n 23). 33 Ibid. 34 Ibid. 35 Bais (n 29) 15.

that would coerce them to change their behaviour, regardless of the abhorrent nature of the crimes prosecuted by the ICC.36 Realism would also argue that ratification of the Rome Statute only occurs when it best serves a state’s interests and most states would prefer a self-help approach to an international court.37 Whilst these explanations are relevant to the case of China and the ICC, they fail to explain the origins of China’s interest in limiting external interference into the actions of the state. Realism does not consider the role of norms and norm entrepreneurs as consequential to international law phenomena, thus a realist explanation fails to account for the importance of China’s identity beyond power seeking interests, providing a narrow explanation for this phenomenon. As a result of realism’s focus on material gains, the theory fails to account for the non-material benefits of rejecting (or accepting) international treaties such as solidifying China’s identity as a state that prioritises non-interference and other norms opposing Western state values. These non-material benefits are accounted for by constructivism, thus this theory provides a greater explanation of the political factors motivating China’s decision to no ratify the Rome Statute. Liberalism posits that non-ratification is best explained by domestic factors and their impacts on foreign policy decisions.38 Liberalists argue that China’s continued non-ratification of the Rome Statute is explained by its regime type, as states behaviour is largely determined by their internal constitutions.39 Specifically, it is the illiberal nature of the Chinese state that explains its decision to reject the Rome Statute as there are barriers to domestic actors lobbying the government to join treaties that support their interests.40 Thus, liberalists argue that democracies are more likely to ratify international treaties as they are more responsive to the demands of people and groups within the state.41 This explanation fails to account for the influences of the international system, specifically the role of norms. Using a liberalist explanation for China’s non-ratification of the Rome Statute is overly parsimonious as it fails to provide a deep analysis of the formation of Chinese interests and identity that are linked to liberal ideas of the impact of regime types. The illiberal nature of China does not provide a powerful explanation for the states behaviour, however constructivism provides greater detail of how regime type, state identity and norms collectively influence state behaviour. By failing to account for the influence of state sovereignty and non-interference norms on the composition of China’s identity and interests, liberalism does not provide a detailed examination of the drivers of state preferences. IV

CONCLUSION

This paper has argued that constructivism offers the best account of the political factors that explain China’s continued non-ratification of the Rome Statute. Constructivism demonstrates that the international norms of state sovereignty and non-interference have shaped China’s identity and interests through the interactions of the state in the international system. Thus, norm socialisation explains China’s preference to reject the Rome Statute as the treaty conflicts with China’s values. Constructivism was also shown to have greater explanatory power of the nonratification of international treaties than realism and liberalism, mostly due to the former’s ability to account for the non-material interests of states and the origin of state preferences.

Simmons and Danner (n 1) 236. Krista M. Ochs, ‘“By Sovereignty of Nature”: The Influence of Political Realism on the US and the International Criminal Court’ (2015) 3(1) Review of History and Political Science 1, 1. 38 Andrew Moravcsik, ‘Liberal Theories of International Law’ in Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press, 2013) 83, 90. 39 Uta Oberdorster, ‘Why Ratify? Lessons from Treaty Ratification Campaigns’ (2008) 61(2) Vanderbilt Law Review 681, 693. 40 Ibid. 41 Ibid. 36 37

HOW THE CURRENT STATUS OF WEST PAPUA MIGHT BE CHALLENGED UNDER INTERNATIONAL LAW Kriti Mahajan West Papuans have been petitioning the United Nations (‘UN’) for decades about not fulfilling its obligation to prepare West Papua for independence and alleged human rights abuses suffered under Indonesian rule. One prominent aspect of West Papua’s claims under international law has been their right to self-determination. This right was formally recognised by the Agreement Concerning West New Guinea (West Irian)1 (‘New York Agreement’) pursuant to which Indonesia administered a referendum on independence known as the ‘act of free choice’2 in 1969. The act of free choice was conducted through a consensus-based process known as Musyawarah, whereby 1026 representative Papuans voted on behalf of all Papuans. This process was in spite of international legal obligations that all adults be eligible to vote and to otherwise be in accordance with international practice,3 which required a ‘free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes’.4 The legality of this process has been questioned by legal scholars as accounts by both West Papuans and researchers indicate that it was marred by voter coercion and other rights abuses. They argue that West Papua’s right to selfdetermination was never extinguished because of these abuses of process,5 despite the UN sanctioning the outcome.6 This article considers the mechanisms available to West Papuans to exercise their right to selfdetermination through a contentious case or advisory proceeding of the Court of Justice (‘ICJ’). It concludes that former is not available because West Papua does not have standing to bring a case and nor has Indonesia consented to the Court’s jurisdiction; while the latter will depend on West Papua’s ability to mobilise political support through the UN Trusteeship Council and the UN General Assembly (‘UNGA’). I

CONTENTIOUS CASE IN THE INTERNATIONAL COURT OF JUSTICE

West Papua cannot challenge its current status under international law by directly commencing contentious proceedings in the ICJ. The primary obstacle is that West Papua itself does not have the standing to bring a contentious dispute or advisory opinion claim before the court. West Papua is currently an Indonesian province and not an independent state. It is also not a UN

1 Agreement concerning West New Guinea (West Irian), Netherlands–Indonesia, signed 15 August 1962, 437 UNTS 273 (entered into force on 21 September 1962) arts X, XVI–XXI. It is also likely that West Papua had a right to selfdetermination under customary international law. 2 Ibid art XV. 3 Ibid art XVIII(d). 4 Principles which Should Guide Members in Determining whether or not an Obligation Exists to Transmit the Information Called for under Article 73e of the Charter, GA Res 1541(XV), UN Doc A/RES/1541(XV) (15 December 1960) annex, Principle VII(a); Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ICJ Rep 95, 134 [157]–[158] (‘Chagos Advisory Opinion’). 5 See, eg, Thomas Musgrave, ‘An Analysis of the 1969 Act of Free Choice in West Papua’ in Christine Chinkin and Freya Baetens (eds), Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford (Cambridge University Press, 2015); Melinda Janki, ‘West Papua and the Right to Self-Determination Under International Law’ (2010) 34(1) West Indian Law Review 1; Jennifer Robinson, ‘Self-Determination and the Limits of Justice: West Papua and East Timor’ in Helen Sykes (ed), Future Justice (Future Leaders, 2010). 6 Agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West Irian), GA Res 2504, A/RES/2504 (XXIV) (19 November 1969).

member, nor can it become a party to the ICJ’s statute, which renders it unable to bring its own claim for self-determination before the ICJ.7 A

Indonesia’s Lack of Consent to the International Court of Justice’s Jurisdiction

Indonesia has also not consented to the court’s compulsory jurisdiction to hear disputes involving its legal rights.8 It is therefore unlikely that other states such as the Netherlands or Papua New Guinea would be able to bring a claim on behalf of West Papua for the court’s opinion on their alleged right to self-determination. The ICJ dismissed an analogous case brought by Portugal against Australia regarding the self-determination of East Timor, because Indonesia was a necessary third party in that dispute and it had not accepted the ICJ’s jurisdiction.9 Indonesia is an even more than necessary third party to any dispute over West Papua because it currently exercises sovereignty over West Papua.10 The ICJ is unlikely to exercise its jurisdiction over this issue without Indonesia’s consent. Thus, directly bringing a claim to the ICJ is not a viable option for West Papua or its allies to challenge West Papua’s current legal status because it is unforeseeable that Indonesia will consent to the ICJ’s jurisdiction in the immediate future. II

ADVISORY OPINION OF THE INTERNATIONAL COURT OF JUSTICE

Trusteeship Council

The UN Trusteeship system and its organ the Trusteeship Council were established under Chapters XVII and XVIII of the Charter of the United Nations (‘the Charter’). The objective of this system was, among other things, to realise the political independence of trust territories.11 King and Johnson argue that if West Papua is not a non-self-governing territory, then it is a trust territory because art II of the New York Agreement caused the administration West Papua to be transferred to a United Nations Temporary Executive Authority. This is supported by West Papua’s removal from the list of non-self-governing territories in 1963 and declassified archival records that indicate this was indeed the intention of the UN and other key (geopolitical) stakeholders in West Papua.12 While the Trusteeship Council has suspended regular operations since 1994, it continues to meet biennially to elect new office-bearers.13 It accepts petitions under Rule 74 of the Rules of Procedure of the Trusteeship Council when the affairs of a Trust Territory or the International Trusteeship Council are affected.14 West Papuans can put forward a petition themselves to draw attention to this breach.15 Under art 96(b) of the Charter, the UNGA has authorised the Trusteeship Council to request advisory opinions from the ICJ ‘on legal questions arising under the scope of their activities’.16 West Papua may be able to challenge its status by petitioning the Trusteeship Council for an ICJ advisory opinion Council because the Trusteeship system has failed to provide West Papua with Jennifer Robinson, ‘Self-Determination and the Limits of Justice: West Papua and East Timor’ in Future Justice (2010) 168, 180. 8 Ibid. 9 East Timor (Portugal v Australia) (Judgement) [1995] ICJ Rep 90, 105 [35]. 10 Ibid. 11 Charter of the United Nations art 76(b). 12 Julian Mckinglay King and Andrew Johnson, West Papua Exposed: An Abandoned Non-Self-Governing Or Trust Territory’ (2018) 6(2) Griffith Journal of Law & Human Dignity 70 13 Ibid 91. 14 Rules of Procedure of the Trusteeship Council, UN TCOR, UN Doc T/1/Rev.7 (1995) (‘TC Rules of Procedure’) r 74. 15 Ibid r 75. 16 Charter of the United Nations art 96(b). 7

the intended support to pursue self-determination. This could be an effective mechanism for West Papua to challenge its current status, as the opinion of the ICJ could compel the UNGA to take immediate steps to fulfil its legal obligation and deliver West Papua’s independence.17 However, such an advisory opinion would not be binding on Indonesia. Its procedures allow the ICJ to make a determination on the issue, which is one of the few ways West Papua can challenge its status under international law without the support of another state. B

United Nations General Assembly

West Papua’s current status under international law could be challenged with the support of UN member states. West Papua cannot initiate the claim before the UNGA as it is not a UN member state. However, any UN member state could put a resolution to the UNGA to request an advisory opinion if it supported West Papua’s right to self-determination. The UNGA (or the UN Security Council) could then seek an advisory opinion from the ICJ. This would not be an unprecedented method of resolving territorial disputes, having done so for Western Sahara and Kosovo.18 This may be a more viable option for West Papua to challenge its status under international law as the consent of Indonesia is not an obstacle to the ICJ giving an opinion. UNGA Resolution 2621 (XXV) states that ‘Member States shall do their utmost to promote…full implementation’ of independence to people in Trust Territories.19 This might motivate member states to support West Papua’s cause. Any UN member could seek an advisory opinion from the ICJ if it can garner the support of the UNGA, and Melanesian states such as Vanuatu have indicated some willingness to seek an opinion.20 However, without the support of other UN member states, the UNGA does not provide an effective international legal mechanism to hear West Papua’s claims for external self-determination and challenge its current status under international law.

King and Johnson (n 12) 82. Robinson (n 7) 181. 19 Programme of Action for the Full Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 2621, UN Doc A/RES/2621 (XXI) (12 October 1970) para 3(1). 20 Robinson (n 7) 181. 17 18

ADVICE ON PURSUING A CAREER IN INTERNATIONAL LAW: AN INTERVIEW WITH ASSOCIATE PROFESSORS KATE OGG AND ESMÉ SHIRLOW

Freya Cox Working in the field of international law is a dream for many law students but achieving this career goal can be elusive and confusing. To dispel some of the mystery, I interviewed two of the ANU’s eminent international law professionals, Associate Professor Kate Ogg and Associate Professor Esmé Shirlow, to ask their advice on this topic. Introducing Associate Professor Kate Ogg and Associate Professor Esmé Shirlow:

Associate Professor Kate Ogg specialises in refugee law and human rights. She has presented her research to the UNHCR Headquarters in Geneva and given evidence on international refugee law to the Australian Federal Parliament. Kate began her career doing litigation work and pro bono refugee work, then did a Masters of Refugee Studies at the Refugee Studies Centre at Oxford. After this she secured an academic position at the ANU and completed her PhD at the ANU under the supervision of Hilary Charlesworth. Associate Professor Esmé Shirlow specialises in public international law, international dispute settlement and investment law and arbitration. As well as teaching and researching at ANU, she has a practice consulting on international disputes. Esmé began as a graduate at the Attorney General’s Department (AGD) where two of her three graduate rotations related to international law. After working at the Office of International Law at AGD for a couple of years she completed an LLM at Cambridge. She returned to Australia and continued to work for the AGD, then completed her PhD in international law at King’s College London. During her PhD, she continued to work in a consultancy capacity for the Office of International Law. She also picked up some consultancy work from her PhD supervisor and barristers she knew at the London bar. She began working as an assistant to investment treaty tribunals and subsequently as an advisor in these proceedings, then decided to continue working in this area through academia. The Differences Between Public and Private International Law

Students often say they want to work in international law, without necessarily understanding the distinction between the career options in public and private international law. Kate and Esmé broke this down for us: Public international law involves the relations between and the conduct of states and international organisations. This includes areas such as treaty negotiations, human rights, and ICJ cases. In Australia this work is most often found in the public sector; in Europe there are more private firms that work in public international law. Private international law involves parties from different states and often concerns a corporate dispute that is resolved through arbitration. For example, if an Australian company has dispute with a Singaporean company and there is an arbitration in Taiwan, this comes under private international law. It is often handled through a private commercial law firm. Private international law is largely about the domestic laws and legal systems in the countries concerned.

Public International Law Career Options in Australia

Esmé highlighted that the public sector has numerous options. DFAT and the AGD’s Office of International Law (OIL) are two of the main options in Canberra and are great for state-to-state public international law and treaty negotiations. The Department of Defence works on significant Memorandum of Understanding agreements which involve many of the skills you would use in the treaty space, Treasury works in international economic law, and the Australian Government Solicitor often assists OIL on complex international disputes that have domestic law elements. In Australia if you wish to work for a private law firm you can work in international commercial arbitration. If you want to work for a private firm in public international law, you will likely have to look overseas. Kate pointed out that lots of UN organisations offer internships which can be a good place to start — for example the UNHCR office in Canberra. If you wish to work in international humanitarian law, NGOs and charities like the Red Cross can be a good option. Kate also emphasised the value of being creative. There are multiple different options out there, sometimes without a clear pathway. What Students Can Do While at University to Enable a Career in International Law

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Learn a language!

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Join societies, such as the Australian and New Zealand Society of International Law and the International Law Association. Student memberships are often free or heavily subsidised. This enables you to become aware of opportunities and demonstrates your interest in international law to future employers. The ANU’s very own International Law Society is also a fabulous way to make connections and be exposed to opportunities, including the ILS Mentoring Program.

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The Jessup mooting competition simulates a dispute before the ICJ and will give you a practical international law education like no other.

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Study international law overseas on exchange (difficult at the moment, I know!). This allows you to see how international law operates differently in other countries.

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Study international law electives to create a trajectory on your academic transcript that demonstrates your continued engagement and interest in international law.

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Complete a longer research paper (either through Honours, the Supervised Research Paper, or a program such as ANIP) to help you apply for postgrad studies.

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Make use of the international law events we have access to in Canberra and don’t be afraid to reach out to people from these events (eg, at the ANU’s Centre for Public and International Law and the Australian Institute of International Affairs).

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Try to get your work published in a reputable international law journal, such as the Australian Year Book of International Law or the Melbourne Journal of International Law.

Questions

Does Doing a Clerkship at a Commercial Firm Help? Getting a clerkship and then a grad job in a large commercial firm is a more traditional pathway for law students. I asked Kate and Esmé whether they would recommend that students who want to work in public international law spend the first few years of their career working for a corporate firm to benefit from the rigorous legal training. Kate said it is not necessarily going to get you a position in international law, however, it is useful experience and lots of people start out this way. The level of professional training is good and translates well into other areas. Esmé highlighted that Judge James Crawford (one of Australia’s most famous international lawyers) used to say that to be a good international lawyer you should be a good domestic lawyer first. Working for a commercial firm will give you knowledge of how legal systems work in practice, and procedural skills that are very valuable. She continued on to say that if you start out in a commercial firm, you can get a master’s degree to pivot and specialise in international law to transition to the next job, whether that be at an overseas firm that deals with public international law matters, within the APS, or something else.

The Value of Doing a Master’s Degree Is it essential? Kate and Esmé both said doing a master’s degree in international law is very useful, especially if you wish to work overseas. Esmé said many people working in government departments in international law have a master’s degree. Kate said that for most UN positions a master’s degree is essential. How soon after you graduate from your undergrad degree should you start it? While both Kate and Esmé said that it does not particularly matter when you start your masters, Esmé pointed out it can be useful to wait a couple of years to get some work experience and decide which area you want to specialise in. Esmé waited two years after she completed her undergrad and said if she had gone straight into a master’s degree she would have done it on a different topic which she later realised she did not want to practice in. Benefits of doing a master’s degree overseas compared to domestically Ideally you want to go overseas. This will allow you to make new contacts and develop an understanding of how international law functions in different jurisdictions. Most international law related jobs will ask how you operate in international environments, so it is good to show you have studied overseas. However, there are also some excellent master’s degrees in Australia for international law. How do we pay for it? Ideally get a scholarship. This is largely based on your grades. However, a lot of master’s degree applications will also ask for a substantive piece of writing — preferably on an international law topic if that is what you wish to do your masters in. The Supervised Research Paper or an elective where you do a large research project are good options for this.

Conclusion

Esmé and Kate both provided some wonderful insights into the options for pursuing a career in international law. They emphasised that there are multiple pathways into this area, and it pays to be flexible, open-minded, and creative about what your pathway will look like. Try to create networks in this area, put yourself forward for opportunities, and build up a relevant history and skillset.

FIVE HOT TIPS FOR WRITING A SRP IN INTERNATIONAL LAW (FROM SOMEONE WHO TRIED!) Hayley Keen

After six years at ANU, and only 12 units remaining, a Supervised Research Paper (‘SRP’) seemed like the perfect way to cap it all off. While I had hardly heard about ‘International Law’ before I signed up to the mega-study course load that is a double-degree with law, after an internship and the International Law foundation course, it had become my passion. It seemed natural that I was going to do my SRP in International Law… now what subject to pick? My SRP journey was a little different to the usual. For much of the start of the SRP semester, I was still competing in the Jessup Moot with our fantastic team succeeding further and further in the rounds. Days after Jessup had finished, I was offered a job overseas. Queue selling/moving all of my belongings, organising to see family and friends I wouldn't see for a while (thanks travel restrictions), vacating my apartment, organising visas, finishing up at my beloved job… None of this is to make any excuses or say that my experience was any harder than anyone else's. What it is to say is, first, the SRP is accessible and doable by many students, no matter the circumstances and other pressures they may face – you can persevere and complete the seemingly incompletable, especially with the essential support of your networks [and here I must acknowledge my workplace at the time, and partner]. Second, and a word of warning, plan to do the SRP in a semester when you know you can give it your all. Generally, it's done at the end of a degree, but this is often the time when students find themselves being pulled in so many directions: work, graduate programme applications, moving away from Canberra… This leads to the SRP potentially not being given the concerted attention it deserves. Be ruthless in balancing your commitments. May I present... FIVE hot tips for students keen on writing an SRP in International Law: 1.

You don't need to have a super clear-cut idea of what you are doing at the outset. The 2,000-word outline required before you start should show that you know what is involved, but you do not need to effectively have a SRP underway. For example, I submitted multiple 'idea' proposals in my outline that had been sounded out with academics. The reason for this is, no matter how perfectly formulated you or your peers' research question is at the start, it will be constantly refined and changed. I caution against falling foul of the pressure of having your SRP framed 'perfectly'.

To go forward, I suggest thinking about an area of international law that one can see oneself reading about every day for a semester and not getting bored. Pursue that areas' "what if" questions. Take one you find interesting, and play around with it. Then consider that the 11,000 – 13,000-word limit (including footnotes!) is not as generous as it looks, and you are not expected to address or solve the whole question. So, take that "what if" and narrow it down one further way e.g., in application to a particular scenario. For example, I love researching international law and climate change, and my SRP was entitled State Inaction and Human Rights: Strategic Litigation for Individuals and States Affected by Climate Change. My ‘what if’ was ‘what if human rights law was used between States over failure to act on climate change?’ (I didn't narrow down one further way clearly, and this was to my detriment). 2.

You don't need the subject matter expert to be your supervisor. There is some expectation of unknown origin within law students that, in undertaking an SRP in, for example, cyber law you must ensure you have the ANU's lecturer/researcher in cyber law. Let's undo this. There

is firstly, no guarantee that the supervisor you would prefer will be willing, available, or able to supervise that semester. Most importantly, they need not be the subject matter expert as you will be writing the SRP, not them. What a student does need, is someone who works well with you, whose explanations and expectations suit your learning style. Given the craziness of my SRP, the wonderful insights and calm nature of Dr Imogen Saunders was exactly what I needed. Your supervisor needs to understand roughly what you imagine producing at the end, have a strong foundation in the fundamentals of international law you will use (see point 3), and hasten or guide you as needed. 3.

Never forget the fundamentals of international law. So often international law students get really excited by a particular ambiguity that they forget… the Articles on State Responsibility! Or so excited about emerging area of law that they forget… the applicability of the Lotus Case… (Okay, I am joking a bit there! But the point remains). Never forget to cross check all of your assertions against the fundamentals, and address any divergence; and do that early. I knew there were some flaws in the discussion in my final chapter, I thought I could remedy these by making connections to the outcomes of earlier discussions because I was pressed for time and words. My marker very rightly reminded me otherwise.

Abandon your essay writing skills… An SRP is nothing like that 3,000-word essay you submitted for Advanced International, or any other course. Long-form essays are an entirely different skill set. The SRP pushed me to undo the six years of formulaic-essay structuring I had stuck to in the past, and taught me to be flexible. There are no real tips here, because as flexibility implies – it entirely depends on your subject and how you want to present it, but that's the best bit! The only things I suggest you consider is (1) continuity between chapters, and (2) using your initial chapter to outline what you need to prove first. … But keep your research skills. I had previously completed two major research papers (a clinical course in international law, and a 12-unit research course in my other degree) before the SRP. While these definitely helped me gauge the enormity of the SRP, and how to navigate resources for the topic, students who have not undertaken such courses before won't be in over their head if they have a solid foundation in detailed research skills. That is, you feel like you thrived when you did that 3,000-word essay (you wish you had more words, you didn't struggle to find sources, and you integrated and rationalised alternative evidence well). One of the keys to successful research is discipline, and an ability to anticipate and process the perfectionist rollercoaster that is a self-directed legal inquiry.

Separate the entire SRP into digestible sections which enable you to discretely provide one section to your supervisor, while you move onto editing or writing another one without issue. Writing my SRP was a moving feast, saved from having separatable sections (smaller than chapters) which broke down the writing process, enabled my generous supervisor to give me multiple iterations of feedback on a particular section, and ensured I could coherently fix issues which arose in one section and affected another (without having to undo and re-write a whole chapter). It might also save you and your supervisor in a similar time/thesis emergency.

There you have it, the five tips I learnt the hard way. I absolutely recommend doing the SRP, especially if you are looking for a challenge, or seeking a taste of the research life to see if it's for you. The SRP also offers an opportunity for students to break up the monotony of a degree which at times feels like a course-after-course marathon. Further, an SRP will help you stand out when entering professional life; not a lot of employers ask 'what did you do in [elective XYZ]?' but they

will ask you, 'what did you do that research paper in?' and that opens up an entirely memorable conversation… But like all things at law school nothing absolutely makes or breaks your law degree or career, what does matter is your passion. Doing an SRP was an opportunity for me to research and put pen-to-paper on a subject I was interested in, but more than that helped me realise why I love international law. That is, its capacity to find solutions for problems affecting some of the world's most vulnerable, and the supportive intelligent people the international legal community is filled with.

EDITORIAL TEAM Stefhan Meyer Publications Director Freya Cox Sub-Editor James Layman Sub-Editor

THE ADVOCATE 2021

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