The Advocate, Spring Edition 2019 by ANU International Law Society

THE ADVOCATE SPRING EDITION 2019

ANU INTERNATIONAL LAW SOCIETY

Editor’s foreword Welcome to our second edition for 2019! We have been overwhelmed with the quantity, quality and diversity of submissions for this edition, and are excited to present the final product. A common theme running through articles in this issue is how the law interacts with, or is failing to keep pace with, various modern developments. Bec Richards looks at the first ever ‘space crime’ (p. 5), while Lauren Skinner discusses state responsibility in cyberspace (p. 29). Daniel Kang finds that armed non-state actor groups slip through the cracks of the rules on state responsibility (p. 18), and later argues that international dispute resolution mechanisms fail to keep states accountable (p. 32). Joey Biddle finds that there is confusion around how organised armed groups may be targeted under international humanitarian law (p. 10), while James Hall considers the issue of statelessness (p. 23). Other pieces focus on the operation of the UN, with Alexander An looking at consensus in the Security Council and what this means for human rights (p. 12), and Annika Reynolds wondering how the UN and international law can address the climate crisis (p.15). This edition also includes articles deconstructing topical issues in international law, such as the expansion of criminal law within refugee law (Imogen McKay, p. 26), or whether boycotting Japan is an effective method to curb their whaling practices (Dominic HarveyTaylor, p. 7). We hope you enjoy this edition of the Advocate!

Gabriela Freeman, Editor

Publications Team Director: Gabriela Freeman Editors: Alessandra Hayward, Jacinta MacGinley and Anna Stewart-Yates Graphic designer: Aamina Sultanbawa

Table of Contents To Infinity and Beyond International Law: The First Space Crime ......................................... 5 Whale-intentioned boycotts wonâ&#x20AC;&#x2122;t deliver results ................................................................. 7 The Difficulty of Targeting Organised Armed Groups......................................................... 10 Emerging challenges in achieving consensus: the future of the Security Council and the implications for human rights............................................................................................... 12 Is the UN all talk and no walk? How international law can address the climate crisis.......... 15 State responsibility: A weak cage for international wild animals? ....................................... 18 Statelessness in Modern International Law .......................................................................... 23 The expansion of criminal law within refugee law as central to Australiaâ&#x20AC;&#x2122;s breach of international obligations ...................................................................................................... 26 Sovereignty, state responsibility and attribution in cyberspace .......................................... 29 Poking at holes in a net: Challenging contentions of international dispute resolution ....... 32

To Infinity and Beyond International Law:

To Infinity and Beyond International Law: The First Space Crime

By Rebeccah Richards When James T. Kirk (Chris Pine edition)

settling

violates the prime directive, he is stripped of

ensuring enough money was in the accounts

his

command title and demoted. When

to take care of their son. Worden, on the

Darth Vader uses his Death Star to inflict

other hand, took instant action by filing a

mass destruction, his genocidal actions are

complaint with both the Federal Trade

met with swift action from the rebel alliance.

Commission and NASA’s Office of Inspector

But when a NASA astronaut is accused of

General. Her accusations stand as identity

identity theft and improper access of bank

theft and improper access to private

accounts

financial records.

while

stationed

aboard

the

post-separation

finances

and

International Space Station (ISS) - what action is to be taken? What ‘space law’ do

But regardless of what McClain’s intentions

we turn to?

were, what is the next step in determining this ‘space law’ issue? Is there even an

‘The First Space Crime’

existing ‘space law’ to guide us? The

In August 2019, NASA astronaut Anne

accusations raise a major international law

McClain was accused of accessing the bank

issue. If found guilty, McClain will be the first

account of her former spouse, Summer

person in history to be sentenced for a crime

Worden, from the ISS. In the midst of their

committed in space - the very first ‘space

separation and a custody dispute for their

crime’.

son, Worden noticed McClain appeared to know details of her spending. Worden,

What ‘space law’ do we turn to?

being an ex-intelligence officer, sought

There are currently six treaties that form the

answers as to how her former partner came

basis of ‘space law’ as it stands today. The

to know such private details. She requested

primary of these is the Intergovernmental

the locations of where her accounts had

Agreement

been accessed. It was no coincidence that a

Cooperation, signed at Washington in 1998.

computer

National

Agencies of the ISS, the US, Canada, Japan,

Administration,

Russia and several European countries are

Aeronautics

registered and

Space

the

(IGA)

Space

Station

better known as NASA, was detected.

the signatories to this treaty. Under Article 1,

McClain claims she is not guilty of any

the object and scope of the treaty centres on

wrongdoing. She claims she was simply

establishment of a long-term international

cooperative framework among signatories,

If one commits an offence overseas, there

and to join efforts to create an integrated

are usually three paths that can be taken: (1)

ISS. Article 2 states that the Space Station is

prosecution under the law of the foreign

to operate in accordance with the Outer

country; (2) upon leaving the country in

Space Treaty, Rescue Agreement, Liability

which the crime was committed, extradition

Convention

Registration

back to that country for prosecution; or (3)

Convention. These four agreements, in

prosecution in country of origin. Article 22

addition to the Moon Agreement and IGA,

only specifies that in a case between

form the basis of our current space law.

different

and

the

nationals,

the

IGA

may

considered the legal basis for an extradition Jurisdiction?

treaty where there is not one between

In regards to jurisdiction, Article 22 of the

countries.

IGA states that each Partner state shall retain criminal

jurisdiction

and

control

over

However, it is clear from Article 22(4) that the

personnel, in or on the Space Station, who

scope of the article predominantly extends

are its nationals. This does not pose a great

to alleged misconduct on orbit – either

challenge in the case of McClain and

individual

Worden, since they are both US nationals.

between crew members. Using the NASA

McClain can thus be investigated under US

network to access bank accounts and

law.

commit identify theft was not within the

misconduct

scope of the treaty when it was signed in But these treaties are silent on what happens for

disputes

different

between

countries.

nationals

from the

McClain’s actions, whilst provocative, have

and

been highly productive to the international

complaining party were to originate from

law field. It has drawn public attention to the

separate jurisdictions. Does it become a

necessity of developing and increasing the

matter for our international law courts, such

coverage of ‘space law’. It is imperative that

as the ICC? The answer would surely be in

‘space law’ be more comprehensive before

the negative, as courts such as the ICC are

we talk about inhabiting another planet. As

designated

egregious

our activities in space increase and begin to

violations of international law – not disputes

replicate our lives on Earth, the law must

that have no basis in international law

keep up. If not, problems are sure to be

treaties.

astronomical.

complications

the

Imagine

1998.

accused

prosecute

Whale-intentioned boycotts won’t deliver results Snubbing exports won't save the whales By Dominic Harvey-Taylor

Protesters are calling for boycotts

the research program under Article VIII

following

of the International Convention for the

Japan’s

exit

from

the

International Whaling Commission and

Regulation of Whaling (ICRW).

return to commercial whaling, but there are more effective measures,

In 2014, the International Court of

Dominic Harvey-Taylor writes.

Justice (ICJ) found that Japan’s permits were not in fact granted for purposes

“Until now research was the main

of scientific research pursuant to the

object… We can prioritise the quality

IWCR. In response, Japan ended its

now. We will process the meat so it

initial scientific whaling program, then

retains its quality and do the bare

started up another program which was

minimum of research”, stated Konomu

largely similar to the first.

Kubo, a spokesperson for Kyodo Senpaku (Japan’s only offshore whaling

Ultimately at the end of 2018, Japan

company) in an interview earlier this

made a failed bid to lift the ban on

year.

commercial whaling, and decided to quit the IWC in order to resume

In 1982, the International Whaling

whaling,

Commission

organisation.

(IWC)

placed

unimpeded

the

moratorium on commercial whaling. For some time, Japan has been able to

Japan’s return to commercial whaling

get around the ban through ‘special

has sparked a number of online

permit‘ whaling, claiming that its

petitions, with many calling for a

program is principally for scientific

boycott of Japan.

research. Some petitions advocate boycotting Japan has been able to sell its excess

specific Japanese companies, others

whale meat for public consumption

suggest a boycott of the Tokyo 2020

since, ostensibly to avoid wastage from

Olympics, while others generally call 7

for people not to travel to Japan or

consumption of whale meat is far from

support

being a widely accepted product

any

Japanese

businesses

whatsoever.

across the market.

There are two fundamental issues to

Information campaigns based upon the

these

campaigns:

reality of the industry, targeted towards

effectiveness and engagement with

a domestic audience, would likely save

real stakeholders.

far more whales than Australians opting

boycott

to not buy Pocky for a few weeks. ‘Boycott Japan, Save the Whales’ is not a particularly new approach to the issue

Beyond the efforts of environmental

of commercial whaling in Japan. Similar

activists, NGOs and the anti-whaling

calls have been made since the 1970s

movement internationally, the question

with little result in terms of both the

to ask is, what steps will the Australian

number of whales it has saved and

government take next?

making a dent in Japan’s overall economic and commercial dominance.

Following Japan’s departure from the IWC, there were many calls earlier in

Environmental activist and founder of

2019 for the issue of whaling to be

the

raised by countries at the G20 summit

Dolphin

Project

Ric

O’Barry

recalled in blog post earlier this year

in Osaka.

how early boycotts merely resulted in many Japanese American children

Prime Minister Scott Morrison has

being bullied across schools in the US.

stated that he is not going to let Australia’s relationship with Japan be

These boycotts rarely engage with the

defined by this issue, giving little

actual stakeholders in the whaling

insight into what level the issue of

industry in Japan or understand how

whaling

the industry is perceived domestically.

government.

There is a small number of people

This statement could be interpreted to

working directly in the industry and

suggest that no action will be taken, or

while there is no doubt a cultural and

alternatively action will be taken, but

historical attachment to whaling in

not in a way that detracts from other

Japan amongst some communities, the

interests. 8

will

pursued

the

should

noted

that

while

In situations where Japan kills whales

simultaneously maintaining a ‘close

outside its exclusive economic zone, it

relationship’ with Japan, Australia has

must

not been shy about raising the issue of

international organisations.

engage

with

the

right

whaling in the past. The ICJ decision in 2014 came as a result of the Rudd

Another approach advocated for by

government initiating proceedings.

former Chair of the IWC, Professor Peter Bridgewater, is for Australia to

There is always the possibility that

lead the charge to reform the text of

Australia could haul Japan back there

the ICRW to better reflect the differing

again.

interpretations of the meaning of ‘conservation’ and deal directly with

Now that Japan has ended its scientific

the reason why Japan withdrew from

programs and withdrawn from the IWC,

the IWC.

there

are

new

potential

legal

challenges to be made.

It remains to be seen whether Japan will be successful in revitalising the

Under Article 65 of the UN Convention

whaling industry domestically. It’s also

of the Law of the Sea, to which Japan is

uncertain whether Australia will once

a signatory, states have an obligation

again take action on the international

to ‘cooperate with a view to the

stage through legal action or legal

conservation of marine mammals and

reform. It is obvious however, that the

in the case of cetaceans shall in

relative impact a general boycott will

particular

have on Japan is insignificant.

work

through

the

appropriate international organisations for their conservation, management and study.’

This article was first published for The Monsoon Project, an academic blog based at the Crawford School of Public Policy. Dominic Harvey-Taylor is a third year Bachelor of Asian Studies/Laws student at The Australian National University with an interest in politics and socio-legal issues across East Asian and South East Asia. 9

The Difficulty of Targeting Organised Armed Groups: A Review of the ICRC’s Continuous Combat Function in Practice By Joey Biddle The 21st century has witnessed the rise of the organised armed group (“OAG”) in the international sphere, complicating the application of the international humanitarian law (“IHL”) principle of distinction. Distinction requires that parties to an armed conflict differentiate between combatants and civilians when using military force. In IHL, combatants are legitimate targets whilst civilians are immune from attack. This immunity lasts only for such a time as the individual does not directly partake in hostilities. Members of OAGs are not combatants for the purposes of IHL. Failing the introduction of additional criteria, a member of an OAG most closely resembles a civilian who loses and regains immunity after each specific act, creating a ‘revolving door’ of targetability.

member of an OAG if their continuous function is to take a direct part in hostilities. This is known as the continuous combat function (CCF). The Guidance’s proposal of the continuous combat function has not been without criticism, failing to be implemented in many states.

Practical Application in Australia In the tabling of the Advisory Report on the Criminal Code Amendment (War Crimes) Bill 2016, Australia rejected the centrality of the continuous combat function. The Explanatory Memorandum to the Bill states that “all members of an organised armed group can be targeted with lethal force, for so long as they remain members of that group, subject to the ordinary rules of international humanitarian law.”

The ICRC’s Continuous Combat Function In 2009, the ICRC published an Interpretative Guidance attempting to limit the revolving door and provide clarity as to the targetability of OAGs. The Guidance states that individuals deemed to be members of an OAG will lose their civilian protections for as long as they remain members. For this period, they are no longer considered to be civilians, instead falling into the exclusive category of a member of an OAG, and so may be targeted at any time. An individual is a

The Attorney-General’s Department provides that the determination of whether the individual can be targeted is not about function (as envisioned by the Interpretative Guidance’s CCF test), but rather membership. It is by virtue of the individual’s membership within the OAG that they are targetable. The question of function within that group is secondary and may only be relevant when attempting to determine whether membership exists. A person’s membership in an organised 10

armed group is not constrained by whether or not that person exercises a continuous combat function. Further, the provision of membership as the decisive criterion of targetability means individuals engaging in direct participation in hostilities (DPH), as well as those providing combat or combat service support, are targetable at any time. This, in the view of the Australian Government, equalises the targetability of organised armed groups with that of State armed forces.

armed group may be targeted at any time by virtue of their membership only. The Israeli government claims the rationale behind the change in approach is to equalise the position of State armed forces and OAGs at law. The report contains an analysis of State practice and opinion juris indicating that a member in an OAG need not have CCF in order to be targetable under customary international law. This is the case notwithstanding the approach of the Interpretative Guidance. There are two conflicting approaches when determining membership in an OAG in Israel. At law the CCF test is to apply, however the membership test will often be implemented in practice. Thus, Israel’s conception of the CCF is similar to Australia’s, with CCF clearly having relevance and informing states’ understanding of the notion of OAGs, while being neither integral nor uncontested in its application.

Practical Application in Israel The Israeli Supreme Court in the 2006 case Public Committee Against Torture in Israel v Government of Israel (Targeted Killings) established that membership within an OAG was to be determined on a functional or conduct based approach. Members whose function is to regularly partake in hostilities on behalf of the group are targetable at all times. Although the Court in the Targeted Killings Case adopts a wider understanding of the notion of DPH than the Interpretative Guidance, their focus on functional criteria as determinative of membership and targetability remains the same.

Where to from here? Given, states’ unwillingness to implement the CCF, ambiguity surrounding the targetability of the OAG remains. Such ambiguity places massive strain on states who strive to comply with international humanitarian law standards such as distinction. Without a comprehensive and practically applicable test for determining an individual’s membership within an OAG, the state is placed at a tactical and financial disadvantage. A new test for membership is of utmost importance but the substance of such a test remains a mystery.

However, the judgement of the Targeted Killings Case has recently been brought into disrepute by the 2014 Gaza Conflict Report issued by the Israeli Government. The report, whilst making no reference to the Targeted Killings Case, rejects a functional approach to membership, claiming individuals part of an organised 11

Emerging challenges in achieving consensus: the future of the Security Council and the implications for human rights By Alexander An Traditionally, the Security Council’s main

reasons, namely the power given by the

priority has been to maintain peace and

veto and the geopolitical bias present. If

security in the international community by

cooperative action outweighs self interest

determining

threatens

in terms of net benefits, then the wisdom

international peace, and react accordingly.

of the absolute veto will need to be

As the key organ in the United Nations

addressed by all of the Permanent 5. The

charged with maintaining the new world

introduction of a qualified veto, similar to

order, it faces new challenges in fulfilling

the system employed in the European

its objectives.

legislative process, would give the global

what

conduct

community

equitable

and

This article will argue that some of the

democratic means to ensure international

various challenges are the continuation of

peace, and by extension the protection of

the status quo regarding the geographic

human rights.

representation in the permanent members of the council and the permanent veto, as

Furthermore, changing the composition of

well as the emergence of non-state actors.

the Permanent 5 to reflect new emerging

The consequences of inaction include that

powers like India and representation of

human rights overall will suffer, and that

other regions such as Africa, the Middle

decisive and consistent cooperation on

East and Latin America, would help to

these matters are necessary to ensure

keep in check other world powers,

human rights are upheld.

maintain international peace, and protect human rights on a global basis, rather than

Continuing the Status Quo

in instances where world powers’ interests

The composition of the Security Council,

are not at stake.

whereby

members

Various examples of how this frustrating

continue to maintain an absolute veto over

combination has degraded human rights

any resolution proposed at the Security

across the world range from Russia’s

Council, is troublesome for two main

border conflict with Ukraine, China’s

the

permanent

treatment of its Uyghur population and the

constructivist debate. It will be necessary

United States’ conduct in its wars in Iraq

for the Security Council and the United

and Afghanistan. This is in stark contrast to

Nations as a whole to address non-state

clear cases where the Security Council has

actors, and how both bodies are able to

intervened

effectively address their actions.

protect

human

rights

indirectly, where threats to international peace and security are present.

The

International

Court

Justice’s

position in this sphere has been clear; Examples like authorised intervention in

conduct by ‘true non-state actors’ is not

the Yugoslavian Wars, the on-going civil

enough to justify the use of force backed

war in the Central African Republic and

by the Security Council, but they are

peacekeeping

subject to unilateral state action, including

Security Council mandates in Namibia,

sanctions and court litigation. However,

East Timor and the Western Sahara to

unilateral state action is not universal, and

ensure right to exercise self-determination

non-state actors may find refuge in other

is not subverted, all demonstrate cases

states who are willing to shelter or turn a

where the Security Council can act

blind eye to their actions. As will be

effectively where human rights are at

discussed, their growing power either

stake. So if the link between violations of

militarily or otherwise is of concern for

human rights and conduct threatening

human rights. As a result, there will be a

international peace is not a problem,

need to adopt a global consensus,

which is hypothesised by the Council’s

especially from the Security Council, to

unfettered ability to determine what it

ensure that these actors do not subvert the

considers a threat to international peace, it

current world order.

missions

backed

is seemingly the interests of the Permanent 5 which determine when intervention is

As the Repertoire noted in a review of

necessary.

proceedings from 2016-17, the Council held five meetings on the non-proliferation

The Rise of Non-State Actors

of weapons of mass destruction by non-

The creation of the United Nations was

state actors, and was briefed upon current

presupposed

the

priorities of the biological weapons and

international

disruptive technologies. These two tools

community, but over time the rise of non-

are not only extremely dangerous to state

state

actors but are clearly against states’

dominant

actors

evoking

upon

the

has

states

the

being

become

classic

apparent,

realist

versus

interests, in that they equalise the power 13

between the two types of actors, allowing

amongst world powers. The more pressing

for states to be threatened by their use.

issue of non-state actors will more likely than not be achieved by consensus,

Clear examples of how they have caused

compared to the composition and power

harm

of the Permanent 5, given the stakes

states

and

their

civilian

populations is apparent in Syria, where the

involved.

Islamic State used Chlorine Gas in at least

human rights would be in the best interest

two

of the Permanent 5, but history states

instances

Organization

for

according the

the

Prohibition

otherwise.

Chemical Weapons Convention and the UN

Joint

Investigative

Mechanism.

Corporations also now have a largely influential role in international affairs, and whilst they do not usually use weapons to further their objectives, corporations have the potential to instigate international crises

perpetuate

human

rights

violations regardless of intention. Practices like modern slavery, trading and cooperating with states who abuse human rights, and exploiting natural resources represent conduct which directly impacts all statesâ&#x20AC;&#x2122; interests. Taken as a whole, the Security Council will need to address this, to ensure a consensus amongst member states is achieved on how non-state actors are regulated, and ensure that their power is kept in check by the global community. Conclusion

To believe that consensus could be achieved in the Security Council in the near future would be sceptical without a dramatic change in the balance of power 14

Theoretically,

consensus

Is the UN all talk and no walk? How International Law Can Address the Climate Crisis By Annika Reynolds

The most prominent voice at the 2019 UN Climate Change Summit was the raw fury of a sixteen-year-old. Greta Thunberg said, with the righteous anger of future generations robbed of everything: You all come to me for hope? How dare you! She spoke to a room of world leaders. She spoke to a room of people that gathered under the auspices of the UN – the apotheosis of our modern international legal system. She spoke to a room of people that should have been the guiding light of humanity’s future. Yet Thunberg’s anger was validated over the rest of the Summit, as leaders were more preoccupied with externalising blame for emissions than achieving concrete strategies. By the end of the Summit, it is fair to ask if the limited commitments made will even offset the carbon produced by world leaders traveling to New York. Is this a signal that the international legal system is too weak, too amorphous, to ensure climate action? More predisposed to finger-pointing between countries than real change? Ironically, I imagine Jair Bolsonaro, the current President of Brazil, would say yes to this question and equally, Trump. Certainly, our current Prime Minister, Scott Morrison, has indicated his derision of international norms with his snubbing of the Summit altogether. I suspect they would say yes because of their nationalist leanings. For nationalism is the rhetoric of isolationism and, in the context of climate change, the process of externalising one’s emissions and their impact. It is easy to close borders to climate refugees, to keep producing excess emissions and mining coal in a disengaged international community. 15

As disappointing as the 2019 UN Climate Summit has been, it is not the total sum of international law’s contribution to climate action. International climate law has the potential to have critical impacts on the fight for climate justice: it provides a means of global coordination to meet world emissions targets and develops legal obligations that may come to bind State behaviour. The most famous developments in international climate law to date, the Kyoto Protocol 1992 and the Paris Agreement 2015, are the only major global coordination mechanisms to ensure we constrain global warming to 1.5 - 2ᵒC.The Paris Agreement is a commitment to minimise global warming (Art 2). Moreover, it creates obligations to ensure the globe peaks its greenhouse gas emissions as soon as possible to begin the long-term process of global decarbonisation (Art 4) and creates a system of ‘nationally determined contributions’ (NDCs) for States to commit to reduction targets. This framework is evidently not perfect. Trump is signalling a US withdrawal (although he has not initiated the legal process of withdrawal), and the 2018 Emissions Gap Report published by the UN Environmental Program indicates that even if all signatories to the Paris Agreement met their NDCs, these targets would have to be tripled to limit global warming to scientific recommendations. But it is disingenuous to treat the Paris Agreement as a waste of time. Morocco is currently outpacing its NDC targets because of renewable energy investment from the Paris Agreement’s funding program. Equally, increased international scrutiny because of the Paris Agreement has resulted in India exponentially increasing its renewable energy investment and reliance. India, one of the largest carbon emitters in the world, will produce 60% of its energy via renewables by 2027. This demonstrates that global coordination is critical and possible. It enables shared funding for decarbonisation projects and pressures large polluters to take responsibility rather than simply externalising their emissions. The failings of the Paris Agreement are not a product of its international status, but because the agreement does not go far enough in invoking international law norms and enforcement mechanisms. 16

It is critical that international climate law continue to build momentum to establish legally binding obligations on States. An internationally wrongful act is when a State breaches its legal obligations, giving rise to an obligation to cease the breach and provide reparations. It is the second part of this mechanism that is critical, the capacity of third-party States to force large emitters to reform. This system of accountability augments diplomatic pressure and coercive tactics, legitimising third-party condemnation and reinforcing these obligations to the rest of the international community. We are on track to establishing responsible emissions as an international legal obligation. Seminal domestic cases, like the Netherlandâ&#x20AC;&#x2122;s Urgenda Case, have recognised excess emissions as a violation of human rights. Furthermore, key international cases like Portillo Caceres v Paraguay, where the UN Human Rights Committee recognised environmental degradation as a breach of the right to life, also reflect this trajectory. We will likely one day see a case where Tuvalu brings an action against Australia for its emissions, and we will one day see a case where it succeeds. Thunberg was rightfully blistering of our world leaders, but do not mistake her condemnation of them for a renouncement of the international community. International coordination, legitimised by international law, is a critical element of climate justice and it will remain so long after the 2019 UN Climate Summit is relegated to the footnotes of history.

State Responsibility: A Weak Cage for International Wild Animals? By Daniel Kang

Despite states increasingly enabling armed non-state actor groups (ANSAG) to commit internationally wrongful acts, the rules on attribution of state responsibility for such conduct remain unsatisfactory, with the legal status of ANSAGs synonymous to that of a wild animal under the state-focused public international law system. This essay argues that an accountability gap exists in the international rules on state responsibility, with limited capacity to tackle existing and emerging challenges around the attribution of responsibility for stateenabled ANSAG international law violations. The essay first explores the relevant law on attribution of state responsibility, then examines its inadequacies, before posing possible solutions.

this high standard is difficult, given evidence of state funding and logistical support is insufficient to establish such dependence. Moreover, ANSAGs are markedly different from de jure state organs, making attribution for ANSAG conduct under Article 4 ‘problematic’, with Article 8 attribution more likely. 2.1.2 Article 8 Article 8 requires satisfaction of the International Court of Justice’s (ICJ) effective control test. The state must exercise a high level of ‘effective control’ over specific ANSAG operations resulting in international law violations. While the exact state conduct required to satisfy this test remains unclear, the threshold is onerous, with the ICJ rejecting ‘mere’ provision of financial and logistical support, and requiring direct instructions to the ANSAG to commit a specific internationally wrongful act.

2 Attribution 2.1 Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) Currently codified in the ARSIWA, the international rules on state responsibility emerged in the early 20th century to address inter-state relations, leaving nonstate actors largely unconsidered. ANSAG conduct is attributable to a state through either Article 4 (if the ANSAG constitutes a de jure state organ), or Article 8 (if the state exerts sufficient control over the ANSAG’s operations).

In The Prosecutor v Duško Tadic, the International Criminal Tribunal for the former Yugoslavia (ICTY) rejected the ICJ’s test, instead establishing an ‘overall control’ test of strict liability, whereby the existence of a general level of state control allows for the attribution of all ANSAG conduct to the state. However, it is unlikely to replace the ICJ’s test, given the ICJ’s subsequent counter-rejection, and the lack of broad acceptance of this standard for Article 8 non-state actor conduct. Additionally, while the International Law Commission has avoided endorsing either test, it cites the effective control test favourably, recognising that the ICTY’s

2.1.1 Article 4 Article 4 attribution requires the ANSAG to be in ‘complete dependence’ on the state, with state practice demonstrating the absence of ANSAG autonomy. Satisfying 19

mandate concerned ‘individual criminal responsibility’ and ‘not state responsibility’. Instead, the ICJ’s and ICTY’s tests may be reconciled appropriately as separate tests applicable to Articles 4 and 8 respectively.

by requisite evidence that is generally classified and therefore exclusively available to the state avoiding responsibility, limiting satisfaction of the high evidentiary burden. 3.1.2 Repercussions This accountability gap incentivises states to preference ANSAGs as proxies over their own armed forces, enabling violations of international law and the avoidance of state responsibility. This problem remains an observable reality, with multiple states increasingly engaging with and supporting ANSAG international law violations during intrastate conflict, and thus enjoying impunity despite factually enabling and contributing to the resulting harm. Furthermore, without successful attribution, injured States are precluded from seeking remedies despite suffering significant harm.

3 Inadequacies 3.1 Reality 3.1.1 Accountability gap While these rules exist to prevent states from avoiding international responsibility by utilising non-state actors, a major inadequacy surrounds their application. These rules do not satisfactorily address the accountability gap in state responsibility where neither the ANSAG conduct nor the state’s support constitutes an internationally wrongful act, with the unlikelihood of attribution granting both states and ANSAGs significant impunity. As secondary rules, the failure of ANSAG conduct to successfully trigger attribution precludes state accountability and prevents establishing a violation of international law. ANSAG committed and state-enabled violations are therefore unregulated, with ANSAGs, lacking general international capacity, given a legal status analogous to a ‘wild animal’ under tort law, committing no recognisable wrong without a ‘legal person’s’ involvement. Given the high threshold contained in the aforementioned rules, attribution is also unlikely, granting states significant leeway to continue providing ANSAGs with both substantial support enabling international law violations, and explicit encouragement to do so. This unlikelihood is exacerbated

3.2 Emerging challenges These rules also inadequately respond to an emerging challenge of attributing state responsibility for ultra vires ANSAG violations. As the effective control test focuses on state control over specific operations, states are possibly responsible for ultra vires acts committed during ANSAG operations it effectively controls. However, the ILC confines responsibility to ultra vires acts ‘integral’ to operations, excluding responsibility for ‘peripheral’ acts. This discourages states from actively mitigating and preventing ANSAG violations to avoid demonstrating effective control and incur responsibility for ultra vires violations. This problem has 20

manifested recently in the 2014 downing of the Malaysian Airlines flight MH17 by Ukrainian separatists, killing 298 civilians of 10 different nationalities, and thus involving multiple injured states.

reactionary, mechanisms to circumvent harmful and internationally wrongful conduct committed by ANSAGs. While such rules already exist, with international due-diligence norms requiring states to prevent wrongful ANSAG conduct, they apply similarly strict thresholds for attribution, and their application is severely limited. A more viable solution involves shifting away from ex post international responsibility under the current state responsibility rules, and establishing an expansive ex ante accountability regime to circumvent ANSAG violations through standardsetting initiatives instead.

However, even if evidence demonstrating that Russia provided substantial support satisfies the effective control test, Russia may nevertheless escape responsibility by asserting it was a ‘peripheral’ ultra vires act with MH17 mistaken by separatists for a military plane. Similar attacks significantly present a broad challenge in applying attribution rules, especially with commercial flights travelling daily over various conflict zones.

4.2.1 Standard-setting Standard-setting regulates ANSAG conduct by establishing non-binding obligations and criteria for states to monitor ANSAG compliance with international law, with supervisory processes establishing accountability. Moreover, standard-setting encourages states to implement a priori joint conduct standards and assessment frameworks to ensure ANSAG compliance with international law. Furthermore, grievance frameworks provide significant remedies for injured states through reparations and commitments to non-repetition. These initiatives are therefore better designed to prevent violations by giving ANSAGs increased ownership over norms by influencing and encouraging good behaviour rather than seeking to punish them outright, and engaging different stakeholders to appropriately

4 Solutions? 4.1 Amendments? Successfully amending the aforementioned attribution rules to address these inadequacies remains unlikely. While ARSIWA could be amended to attribute responsibility based on factual outcomes instead of legal violations, the five successive failures by the United Nations General Assembly’s Legal Committee to reach agreement on ARSIWA’s future demonstrates the bleak prospect of significant amendments to ARSIWA. Moreover, the ICJ’s current jurisprudence is similarly unlikely to shift towards a more capacious threshold, with the Court facing political pressure from states. 4.2 Ex ante accountability Addressing these challenges therefore require preventative,

may not 21

acknowledge the potential for multiple actors to contribute to wrongful conduct.

settlement mechanisms. For domestic court proceedings bolstered to establish responsibility and uncover information in establishing international responsibility international proceedings.

However, three significant obstacles hinder successful implementation of standard-setting initiatives. Achieving successful participation remains difficult without enforcement frameworks to ensure compliance and states may be reluctant to participate to avoid granting ANSAGs legitimacy. Moreover, standard setting has a limited scope, only effective in influencing well-organised ANSAGs that value their reputation and seek legitimacy, and not undisciplined ANSAGs purely motivated by personal gain. Lastly, ANSAGs may either lack the capacity to comply with grievance mechanisms if they usually disband after conflicts, or avoid making adequate reparations through hiding or laundering their resources. Ultimately, these difficulties call for the adoption of supplementary initiatives, including strengthening domestic dispute

example, could be ANSAG requisite a stateâ&#x20AC;&#x2122;s in later

5 Conclusion Ultimately, the international rules discussed are at best marginally equipped to deal with the aforementioned challenges surrounding ANSAG violations. However, this appropriately reflects a hard truth: this regime cannot realistically serve as a perfect cage to capture an unpredictable beast. Successfully overcoming these challenges instead necessitates better tailored approaches, and a paradigm shift in the international conceptualisation of international responsibility.

STATELESSNESS IN MODERN INTERNATIONAL LAW By James Hall The issue of stateless persons is a

For an individual to be considered

dilemma as old as the concept of a

stateless under the auspices of the

modern nation state. However, the

1954 Convention, they must be a

mechanisms regulating it are relatively

person who is â&#x20AC;&#x2DC;not considered a

new, and these mechanisms are facing

national by any state under the

mounting challenges.

operation of its law.â&#x20AC;&#x2122;

Recently, the revision of citizenship lists

As well as these documents, numerous

in the north-eastern Indian province of

international agreements, including the

Assam, and the efforts of states to strip

Universal Declaration of Human Rights,

the citizenship of terrorists and their

confirm that it is accepted as custom in

associates,

international law that the right to a

have

been

central

debates on the consequences of the laws

and

customs

nationality is a human right.

surrounding

statelessness.

In 2018, the United Nationsâ&#x20AC;&#x2122; annual report into global trends in the forced

Internationally, statelessness is defined

displacement of people found that,

and discouraged by two major United

where data was available, 3.9 million

Nations documents: The Convention

individuals were stateless. The report

relating to the Status of Stateless

further acknowledged that due to

Persons (1954) and the Convention on

stateless

the Reduction of Statelessness (1961).

reported in national census data,

These conventions are designed to

official reports and other sources of

work in tandem to identify stateless

demographic information, this number

people, define their rights and to

is likely a drastic underrepresentation

encourage member states to actively

of the true total.

engage

reducing

individuals

being

under-

statelessness

worldwide.

Citing this information, UNHCR Chief Filippo Grandi has suggested that the 23

true

number

stateless

people

battles,

indefinite

detention

and

globally could be in excess of 12

potential statelessness should their

million people. However, even these

appeals fail. Critically, India is a

higher

estimates

completely unfolding

could

incorrect situation

soon

signatory to neither the 1954 nor the

the

1961

due in

the

Indian

Conventions,

meaning

that

individuals made stateless as a result of

province of Assam.

the revision of the National Register of Citizens will not be guaranteed such

Assam, nestled in India’s north-east

rights as freedom of religion, access to

and sharing a border with Bangladesh,

education, employment and freedom

has had historic concerns over illegal

from expulsion from India.

immigration from Bangladesh and challenges in maintaining citizenship

This issue is not set to be resolved any

records. In response to these concerns,

time soon, as an amendment to the key

the Indian government revised the

legislation

‘National Register of Citizens’, a list of

determination of citizenship appeals –

individuals it considers to have been

the ‘Foreigners (Tribunals) Order 1964’

resident

the

– now allows for the expansion of the

independence

measures taken in Assam across all of

Bangladesh from Pakistan in March

India, potentially impacting millions

1971.

more.

prior

the

declaration

Assam

governing

Moreover,

statelessness

has

the

issue

been

raised

At the stroke of an administrative pen,

relation to the stripping of citizenship

this decision has created one of the

from individuals who have committed

single largest statelessness crises in

terrorism-related

modern times, with around 1.9 million

particular pathway to statelessness has

individuals in Assam at risk of being

been highlighted recently through

rendered stateless.

government attempts worldwide to

offences.

This

revoke the right of terrorists and their With an appeals process existing with a

ideological sympathisers to return to

pathway to India’s Supreme Court, the

their country of origin.

list does not automatically render all those

excluded

from

stateless.

Recent noteworthy examples include

However, it does place a vast number

the cases of British national Shamima

of people at risk of extensive legal

Begum and Australian national Neil 24

Prakash. These cases highlight the

campaign in 2014 to raise awareness of

universality of issues of statelessness,

the issue, encourage states to act, and

even in nations which have signed and

engage

ratified both major United Nations

Executive Committee of the UNHCR

conventions on the issue. In both of the

will also hold a ‘High-Level Segment on

aforementioned cases, the legality of

Statelessness’ during its upcoming

the decision to strip citizenship was

meeting

justified

marking the halfway point in the

the

basis

that

the

global

October

long

public.

2019,

campaign

The

both

individuals had claims to citizenship of

decade

end

other nations, Bangladesh in the case

statelessness and to assist in raising the

of Begum and Fiji in that of Prakash. In

issue to public consciousness.

response, both purported ‘backup’ nations

have

made

public

Along with work done through the

announcements denying this assertion.

United Nations, NGOs such as the Institute on Statelessness and Inclusion

These cases highlight the complex

as well as crisis response organisations

practicalities of citizenship disputes,

such as the Red Cross are championing

not to mention the moral and legal

efforts to both eradicate statelessness

quagmire of state responsibility for a

and ameliorate its current impacts.

citizen’s actions, which confront states

Ultimately, the burden of dealing with

when dealing with the realities of

statelessness

internationalised

states, bound by commitments to

terrorism

and

statelessness.

falls

upon

individual

international conventions, norms and domestic law. The future for those

So, what is being done to combat

rendered

statelessness?

years,

challenging, as does the fate of

prominent cases of individuals and

multinational efforts to eradicate the

groups being rendered stateless have

issue.

spurred

non-

attention on the plight of stateless

government actors into action to

people, political and social advocacy,

attempt

and international condemnation of

recent

government to

confront

and the

issue.

stateless

However,

sustained

actions

levels of attention from the United

statelessness are key elements of a

Nations,

global solution to statelessness.

the

organisation

launching the ‘#IBELONG’ ten-year 25

contribute

media

Statelessness is receiving increasing with

which

remains

The expansion of criminal law within refugee law as central to Australia’s breach of international obligations By Imogen McKay The increased criminalisation of asylum

corporations like Serco that operate both

seekers and privatisation of immigration

prisons and immigration detention centres

detention since the 1990s has created

frequently have more economic power

what has been labelled as the immigration

than

industrial

certainly ‘seems an appropriate reason to

complex.

Refugees

have

states

(including

human

Nauru),

rights

duties

which

arguably become the biggest victims of

impose

this, with the act of seeking asylum

corporations.’ However, there are yet any

increasingly criminalised through stringent

meaningful international human rights

requirements including carrier sanctions

obligations for which these actors can be

and visa requirements and, most notably,

held legally accountable.

detention centres. Arguing that Australia has retreated from its international legal

Several

international

obligations, this article will highlight that

interact to define the scope of Australia’s

while Australian cases concerning asylum

obligations to refugees. Article 31 of the

seekers are overwhelmingly administrative

1951 Convention explicitly prohibits States

law matters, the immigration industrial

from imposing penalties on account of

complex is reliant upon the expansion of

refugee's

criminal law within refugee law.

Despite Australia being signatory, many

illegal

law

entry

instruments

presence.

refugees who ‘present themselves without It is briefly noted that the emergence of

delay’ and ‘show good cause’ to Australian

the prison industrial complex and the

authorities find themselves imprisoned in a

increased engagement of corporations as

detention facility owing to their illegal

‘governance actors in human rights-

entry.

related conduct’ has highlighted the

analysis of this obligation, summarising

deficiency of international law to impose

that while administrative detention is

duties on non-state actors that profit from

permitted under Article 31(2), it constitutes

incarceration. As van Berlo points out,

a penal sanction under international law if 26

Goodwin-Gill provides a useful

there is an absence of ‘basic safeguards.’

‘logical corollary’ of the criminalisation of

Whether the clause is breached can be

seeking asylum.

ascertained by examining whether the detention is ‘reasonable and necessary,’ or

Immigration

detention

has

been

alternatively, ‘arbitrary and discriminatory.’

differentiated from Australia’s domestic penal arrangements on the basis that it is

Further, Article 9(4) of the ICCPR requires

for

a state to guarantee substantive judicial

punishment, insinuating that ‘the latter is

review over detention, with the UNHCR

intended to include such a rationale, while

noting all decisions to detain a person

equally clearly immigration detention is

should be subject to periodic review ‘so

not.’ In Lim’s case, confirmed in al-Kateb,

that the grounds justifying the detention

the High Court held that mandatory

can be assessed. Additionally, the UNHCR

detention did not infringe upon the

has held that in justifying the necessity of

Constitutional

detention under art 9(1), the state party

contingent on the non-punitive intention

must demonstrate that ‘there were no less

of immigration detention - which is

invasive means of achieving the same

established so long as the detention is

ends.’

The UN Working Group against

'reasonably capable of being seen as

Torture found in 2002 that Australia

necessary for the purposes of deportation

neither utilised alternative means nor

or for an application for entry permit to be

demonstrated

made and considered.' While admitting

alternative means, and the UNHRC has

that immigration detention had ‘all other

found several times that the lack of judicial

elements

review available for asylum seekers does

reasoned that immigration detention was

not meet the requirements of art 9(4).

not punitive because it was not in response

The

between

to the breach of a legal offence. As Boyle

criminal law and immigration law broadly

points out, this reasoning is illogical firstly

has led to the adoption of the term

because it examines ‘the means rather

‘crimmigration’ law. Acknowledging the

than the ends of immigration detention,’

broader intersections between criminal

and

law

Catherine

seekers do not commit an offence, they

Dauvergne provides useful analysis of the

are ‘detained due to a breach of a legal

relatively recent expansion of criminal law

rule, which are the provisions of the

within refugee law, which has arisen as a

Migration Act.’

increasing

and

the

inadequacy

intersections

immigration

law,

administrative

secondly

purposes

separation

punishment,’

because

and

not

powers,

Hayne

while

asylum

Following Goodwin-Gill’s reasoning that

imprisonment for a crime would consider

the

ostensible

distinction

between

particular

circumstances

the

administrative sanctions is irrelevant, it is

individual, as conceded by Gleeson CJ in

argued here that the detention of asylum

al-Kateb,

seekers is very much aligned with the

detention

‘traditional justification’ of immigration

considerations.

the

mandatory

eliminates

nature any

of such

detention, described by Hernandez, which is to signal to detainees ‘that they have

The lack of safeguards for detained asylum

committed a social wrong, criminal activity

seekers has led some to conclude that

that violates immigration law, and must

‘penal incarceration could almost be said

now suffer the consequence meted out – a

deprivation of liberty.’ Deterrence, a well-

Concerningly,

established principle of criminal law,

discussions with detainees who have

designed to induce fear of penalties for

experienced both immigration detention

committing an offence, is central to

and

Australia’s refugee policy, clear from the

‘unhesitatingly’ claim they prefer prison if

language of ‘illegality’ by the federal

given the choice.

government on refugees. Further, while

important when considering reform to

prisons at least retain some level of a

meet

rehabilitative purpose, there are few, if

rendering

any,

mandatory detention in the context of the

internal

structures

detention

produce

broader

back into society.

incarceration.

Dauvergne, concern’

the is

‘infusion

particularly

criminal

detrimental

because it is unimpeded by the ‘rights of the accused context’ – the aspects of criminal justice that have not crept into refugee law are the features that aim to specifically protect individual rights. While a court in sentencing a person to

describes

incarceration

international it

outcomes.’

Ozdowski

criminal

centres designed to facilitate detainees As described by

superior

who

This recognition is law

essential

phenomenon

obligations, to of

consider mass

Sovereignty, State Responsibility & Attribution in Cyberspace By Lauren Skinner Sovereignty sits at the heart of the international legal system. Indeed, the modern international system of States relies fundamentally upon respect for State sovereignty and the prohibition on the use of armed force. But what happens when a State infringes upon another State, not through the use of armed force, but through cyberoperations? This is an obvious breach of international law, but how would one go about enforcing it? How would one prove another Stateâ&#x20AC;&#x2122;s responsibility? In recent years, this has been an increasingly relevant area of law, most notably through the Russian interference in the 2016 US presidential election. It is imperative that States develop comprehensive and clear rules on State responsibility for cyberoperations to prevent ongoing infringements on State sovereignty.

intended to reflect the current state of international law in cyberspace. Despite these concerted efforts to translate the ASR to a cyber-context, the legal regime in cyberworld remains poorly defined, particularly in relation to State responsibility. This creates significant problems with enforcing State responsibility for internationally wrongful cyberoperations, and allows significant space for States to infringe upon othersâ&#x20AC;&#x2122; sovereignty through their cyberoperations.

The Difficulties of Attribution in Cyberspace Attributing cyberoperations to a State is a lengthy and complicated process that involves a factual assessment of who engaged in the conduct, and a legal assessment of whether that individual or entityâ&#x20AC;&#x2122;s conduct can be attributed to a State. Both factual and legal attribution are extremely problematic in cyberspace.

While the rules of state responsibility are well-established under international law, their application in the cyberworld leaves a lot to be desired. The Draft Articles on State Responsibility (ASR), many of which are considered customary international law, have been translated into a cyber context in the Tallinn Manuals. The Tallinn Manuals are two publications developed by an international group of experts comprising rules and commentary that are

(a) Factual Attribution Generally, discussions of attribution are not about who did it, but rather who can be held responsible for it; however, in the cyber context, even this first step is highly problematic. Sophisticated attacks by knowledgeable hackers are near impossible to trace, and the science of 29

tracing cyberattacks has been described as ‘primitive at best.’ Traditional presumptions used in attribution, such as the use of governmental assets or the geographical location of the internationally wrongful act, do not apply in the cyber context. Non-State actors or other States may acquire control over government cyber infrastructure, rendering the presumption regarding use of governmental assets meaningless. Additionally, techniques such as ‘spoofing’, in which a cyberattack appears to originate from a source other than its real source, are commonly used by hackers in order to feign their identity or location.

have had ‘governmental authority’ conferred on them by legislation or through contracts and agreements. If a government is relying on an entity to perform cyberoperations that may breach its international obligations, as in the case of foreign election interference, the conferral of authority is unlikely to be as clear or public as a contract or legislative framework. For this reason, this part of the provision is unlikely to be successful in holding a State responsible for an internationally wrongful act. Rule 17 of the Tallinn Manual 2.0 states that the conduct of non-State actors is attributable to a State when the actor is engaged pursuant to the State’s instructions or is under its direction or control. In relation to the equivalent section of the ASR, the International Court of Justice (ICJ) has stated that non-State conduct is only attributable to a State where the State has ‘effective control’ over the conduct in question. Given the technical challenges of establishing factual attribution outlined above, it has been noted that adopting the ‘effective control’ standard in the cyber context ‘could give a free pass to State sponsorship of cyberattacks.’ Applying this test, it would be near impossible to enforce the responsibility of a State.

(b) Legal Attribution Factual attribution is only step one in attributing internationally wrongful cyber acts. If it can be established where or who a cyberoperation originated from, it still must be determined whether a State can be held responsible for the conduct. Under Rule 15 of the Tallinn Manual 2.0, ‘cyber operations conducted by organs of a State, or by persons empowered … to exercise governmental authority, are attributable to the State. While this likely reflects CIL and is therefore enforceable against a State, in most cases of foreign election interference, it will not be a government organ directly conducting the cyberoperations. In cases where an entity is exercising governmental authority, attribution both in fact and law remains extremely difficult. Cases that have considered an ASR Article 5 argument to attribute responsibility to a State have been largely confined to bodies which

Overcoming Attribution Difficulties to Protect Sovereignty Considering the example of foreign interference in an election, we can see the near impossibility of holding a State responsible for cyberoperations that likely

breach international rules on nonintervention and respect for sovereignty. A State organ spreading misinformation or hacking into and releasing private information can hide behind techniques such as spoofing and use of nongovernmental cyber infrastructure to avoid responsibility. Any entity acting under the direct instructions and control of a State is unlikely to leave sufficient evidence to show the requisite level of control. The current standards relating to control and burdens of proof for attribution are highly unlikely to be met by States injured by cyberoperations, due to the unique nature of cyberspace and the interrelated issues of evidence, national security, timing and identification difficulties.

beneficial for States who engage in cyberoperations against other States and non-State actors, there is an increasing need for clarity on the rules and obligations of States in this area. Given the increasing prominence of the cyberworld, these issues require extensive multilateral coordination and for States to clarify exactly how far international regulation of cyber should extend, and how it should function. The most practical framework for this would be through a comprehensive, multilateral treaty on both rules and obligations in cyberspace, and State responsibility for cyberoperations.

To ensure both the relevance and the uniform application of international law, it is important that States are clear about their rights and obligations in cyberspace, and that they can be held responsible, and can hold others responsible, in cases where these rights or obligations have been breached. While the Tallinn Rules have initiated important discussions in the area of cyberspace law, States must now step up to provide legal clarity on the regulation of cyberspace, not only for their security, but for the security of the billions of people around the world online.

Greater clarity and more appropriate tests are required in order for State responsibility laws to function effectively in cyberspace. Some commentators have argued for a flexible standard of State responsibility in cyberspace; others have argued that States should have an obligation to police and regulate all cyber activities originating in their territory; and others have supported a comprehensive treaty for cyberspace regulation. While the present status, and indeed absence, of international law on cyberoperations is

POKING AT HOLES IN A NET: CHALLENGING CONTENTIONS OF INTERNATIONAL DISPUTE RESOLUTION By Daniel Kang I INTRODUCTION

Scholars highlight the adjudication of international disputes through arbitration and judicial settlement as the most effective mechanism for achieving enduring settlements on controversial issues. Despite smaller states favouring adjudication – which attenuates power disparities in their disputes with larger states – adjudication remains flawed and ineffective, failing to achieve accountability from larger states which continue to defy adjudicated outcomes and enjoy impunity. This essay challenges this perception of international dispute resolution (IDR) mechanisms as ineffectual in achieving accountability from large states, and highlights that small states and individuals may also avoid being held accountable. Concurrently, it seeks to challenge accountability as the defining metric in evaluating IDR mechanisms. It first analyses the Philippines v China arbitration, where a major power has been held accountable for its transgressions. Next, demonstrating that adjudication may fail to achieve accountability from small states and individuals, the essay explores the International Criminal Court’s (ICC) failure to administer international criminal justice through judicial settlement and prosecution of Sudanese president Al-Bashir following the UN Security Council’s referral of Sudan under Chapter VII of the UN Charter. II PHILIPPINES V CHINA

Arbitration has been identified as the most ‘efficient’ dispute resolution procedure due to its success in resolving complex issues authoritatively, comprehensively, and in less time than other mechanisms. A The Dispute

In 2014, the Philippines launched arbitration against China under Annex VII of The United Nations Convention on the Law of the Sea (UNCLOS) as ‘a last resort’, challenging China’s 32

contentious nine-dash line demarcating its claimed territory over the Spratly Islands, and Chinese violations of rights possessed by the Philippines within their own exclusive economic zone in the South China Sea (SCS). The Philippines has asserted that both bilateral negotiations and multilateral efforts through ASEAN were ineffectual, with China leveraging its superior power to enforce claims. The Tribunal decided overwhelmingly in favour of the Philippines, holding that under UNCLOS, China’s nine-dash line claim is illegitimate and holds no entitlement to the territory or resources in the SCS through historical use. As such, neither an exclusive economic zone, nor a 12 nautical mile territorial sea is generated by the features China has claimed. Additionally, these features were mostly held to be in the Philippines’ exclusive economic zone, and China’s unilateral actions in the disputed areas constituted unlawful interferences with various rights of the Philippines’ under UNCLOS. B Accountability?

Accountability appears not to have been achieved, given China’s rejection of, and refusal to participate in the arbitral process, along with an apparent lack of compliance. China has employed aggressive rhetoric in rejecting the Tribunal’s decision, and increased aggression in protecting territorial claims during the arbitration. China is currently only fully compliant with one of the Tribunal’s rulings, and has continually violated the others. However, China’s outward defiance should not immediately be taken as evidence of failure in achieving accountability. These defiant actions came as no surprise given China’s rejection of the Philippine’s previous request for arbitration, consistent opposition towards arbitration in resolving boundary disputes, and disagreement that arbitration was the sole viable dispute resolution mechanism. Additionally, the arbitral rendering of a ‘final’ award means the decision cannot be contested, which has compelled China to further assert the credibility of its claims and deter similar arbitral proceedings from other claimants. Lastly, the ruling is also a huge blow to China’s pride, as it delegitimizes the extensive actions it has taken to assert its claims. A closer analysis of China’s subsequent conduct actually reveals that a measure of accountability has been achieved. The reputational costs of continued defiance are detrimental to China’s broader interests in expanding regional influence and assuming global leadership, and the Chinese leadership’s cognisance of these costs is demonstrated 33

by the immense diplomatic energy expended on contesting the arbitration and its award. This awareness has produced more moderated Chinese conduct, with Chinese governmental statements following the Award becoming relatively subdued, indicating a subtle shift from an adversarial contest towards peaceful dispute resolution. Most significantly, despite continued refusal to honour the award, China is departing from its longheld nine-dash claim, and actively avoids explicit violations of the Tribunal’s ruling against this claim. The arbitration may progressively achieve accountability by reducing China’s violations of international law, with a likely reduction in China’s invocation of the historic use of high seas to claim control of the SCS. This would temper disputes over sea features and generated entitlements, and reduce Chinese artificial enhancement of sea features to reinforce maritime sovereignty claims. Additionally, this limited accountability still constitutes a huge success considering that arbitration’s utilisation has been generally limited to resolving less crucial issues such as investment disputes, with states generally avoiding arbitration on more crucial issues involving territory and resource control. When considering that the economic and political asymmetries between the two states precluded any real chance for the Philippines to negotiate fair terms, arbitration has levelled the playing field between both states. The arbitral decisions were solely based on each state’s legal claim, preventing China from using coercion to guarantee an outcome skewed in its favour. This has sped up the resolution process, which is in the Philippines’ interests given that the dispute was hindering the Philippines’ economic development. Moreover, the limited accountability achieved is still significant against the backdrop of the dispute’s complexity, which has stymied previous attempts at negotiating cooperation, and severely limited the prospects of accountability achieved through arbitration. First, the SCS is economically significant to both states as a resource-rich region. The SCS provides 10% of global fish stocks, constitutes one of the busiest shipping corridors, and potentially hosts a wealth of untapped hydrocarbons. Control of this ‘offshore El Dorado’ thus motivated both states to vie for exclusive control rather than negotiate for shared management. Each sought to exclusively utilise profits from resource extraction and bolster ongoing industrialization for economic growth, thereby meeting domestic needs and maintaining internal security.

Additionally, the highly political nature of the dispute has severely limited prospects for accountability to be achieved. Despite the Philippines framing the dispute as centred on interpreting UNCLOS instead of determining maritime sovereignty, sovereignty remains the key underlying concern for both parties, heightened in both states by rising nationalism. This heightened importance attached to the SCS has led to both parties eschewing cooperation to avoid compromising their claims over exclusive control of the disputed region. Lastly, previous attempts at negotiations have been stymied by a lack of confidence and trust, resulting from multiple confrontations between Chinese and Filipino agents in the SCS, and exacerbated by the Philippine’s decision to involve US naval intervention in the dispute. Deteriorating bilateral relations may have thus contributed to China’s reluctance to publicly accept and comply with the award. That China currently enjoys total impunity is therefore an unfair assessment. China’s moderated conduct indicates that at the least, limited accountability has been achieved. C Reassessed Evaluation

Furthermore, accountability should not form either the sole or defining metric in evaluating arbitration, with the arbitration’s value here extending beyond accountability. The arbitration’s failure to achieve full accountability from China given its inherent inability to provide formal enforcement should not detract an evaluation of its real utility in convincing, instead of coercing, China to pursue subsequent cooperation and peaceful dispute resolution. An appropriate evaluation of this arbitration should consider its intended purpose. The Philippines never intended arbitration to completely resolve the dispute, noting that exclusive reliance on arbitration to achieve accountability would be a ‘multi-generational struggle’. Instead, arbitration was initiated as a step towards dispute resolution by breaking the diplomatic deadlock between the two states, providing a basis for subsequent successful bilateral negotiation for cooperation. This purpose has been fulfilled, with the finality of the arbitral award not extended to the broader dispute resolution process. The Tribunal has avoided determining the ‘future conduct’ of both parties, precluding a restriction of further dispute resolution options. Instead, arbitration has strengthened the positions of the Philippines in bilateral negotiations with China, while opening pathways to cooperative dispute settlement. 35

Bilateral negotiations have been successfully conducted since the award, with the Philippines indicating that the award would ‘take the back seat’ in negotiations. These negotiations are progressively achieving peaceful dispute resolution by achieving cooperation and building trust. They have produced discussions of the potential to grant Filipino fishermen conditional access to the Scarborough Shoal, concluded agreements on joint oil and natural gas explorations to be controlled by the Philippines, and allowed for the creation of trade deals and trust-building bilateral defence coordination initiatives. Most importantly, a peaceful dispute resolution is in sight, with both parties agreeing to start bilateral negotiations to settle their maritime disputes, principally through regular meetings to address concerns within the SCS. This optimism may be buttressed by a likely further defusing of bilateral tensions, with ASEAN’s agreement to negotiate a Code of Conduct with China without external involvement, made under the Philippines’ chairmanship. This reconsidered evaluation of arbitration reveals a significant success in enabling a comprehensive and long-term solution to be achieved. These piecemeal but binding negotiations resolve targeted aspects of the dispute, by reducing the costs of relinquishing decision-making autonomy for both parties and through adequately addressing the interests of both parties, thus encouraging China to enter into a legal dispute resolution process which it would otherwise not have consented to. While these negotiations prolong the dispute resolution process, the complexity of the dispute has already made an expedited resolution impractical. D Conclusion

Although China is unlikely to rescind its rejection of the award, and arbitration has not drastically changed China’s policy behaviour, the arbitration’s value is still significant in achieving some accountability, and resolving a diplomatic impasse through encouraging China towards bilateral cooperation with the Philippines. III INTERNATIONAL CRIMINAL COURT & THE AFRICAN UNION: AL-BASHIR A The Dispute

Following the Security Council’s referral of the situation in Darfur, the ICC Prosecutor requested an arrest warrant against Al-Bashir in 2008, with the ICC subsequently issuing warrants for Al-Bashir’s arrest in 2009 and 2010 for crimes against humanity, war crimes and 36

genocide committed in Darfur. This has strained AU-ICC relations, with the AU Peace and Security Council immediately condemning the request, stressing its undermining of peace efforts in Darfur, and requesting the Security Council defer proceedings. This request, restated by the AU Assembly, was ultimately ignored. In response to the warrant, the AU has also ordered for all member-states to respect Al-Bashir’s immunity as a sitting Head of State and refuse to enforce the warrant. Underlying ICC-AU tensions are perceived as bias against Africa, leading to fierce resistance by African states against the Court. Fuelling this perception are observations that only two sitting Heads of State indicted by the ICC are both African, the only two referrals by the UN Security Council concern, African situations, and the two exercises of the ICC Prosecutor’s proprio motu authority concern African situations. B Accountability?

The ICC has clearly failed to hold Al-Bashir to account, with Al-Bashir still enjoying impunity almost nine years after his first arrest warrant. The AU’s order against enforcing the warrant has created a conflict for AU member-states between their obligations as AU member-states and as parties to the Rome Statute, with multiple African states deciding to comply with the AU and allow visits from Al-Bashir without arrest. The warrants have also failed to remove Al-Bashir, who has won two national elections since 2015. While a commitment to the arrest of Al-Bashir was initially shared by more African states, including Botswana and Tanzania, the ICC’s indictment of Kenyan President Kenyatta reinforced the AU’s perception of the ICC as biased against Africa, leading to some African states which previously supported the ICC to ignore Al-Bashir’s warrant. Most notable is the reversal of South Africa’s previously stated clear commitment to arresting Al-Bashir ―which prevented Al-Bashir’s attendance of both President Zuma’s inauguration in 2009 and the 2010 World Cup. After Kenyatta’s indictment, the South African government ignored the ICC’s request for Al-Bashir’s arrest and extradition, inviting him to safely attend the 2015 AU summit in Pretoria and allowing him to leave untouched. The ICC’s attempts to force compliance have been unsuccessful. Rulings on noncooperation by African states have not improved African cooperation ― with South Africa, Gambia, and Burundi instead signing treaties withdrawing from the Rome Statute.

C Looking forward

This failure alone should not be held as indicative of judicial settlement’s inherent ineffectiveness. Rather, it highlights that accountability should not be the sole objective sought, and a continued pursuit of judicial settlement must instead seek to improve cooperation. 1) Optimism?

Africa’s historical and continued support for the ICC remains a good cause for optimism in moving towards cooperation. African states have given overwhelming support to the ICC’s creation, their greatest in the creation of any global institution, aiming to achieve accountability for regional conflicts and gravest violations of human rights. Africa still remains the region with the most Rome Statute ratifications, with eight African ICC members maintaining their domestic legislation implementing Rome Statute obligations, and four additional African states ratifying the Rome Statute since Al-Bashir’s arrest warrant. Moreover, the current African opposition is unlikely to seriously undermine the Court. A mass AU ICC withdrawal is unlikely to eventuate given a lack of consensus, with several formal reservations submitted to an AU proposal. Furthermore, Burundi remains the only African state fully withdraw from the ICC, likely owing to ongoing investigations by the ICC. African opposition is ultimately selective and confined to two of the nine African ICC investigations, with opposing states continuing to cooperate in line with their political interests, particularly where the ICC indicts African rebel leaders. The non-compliance of AU member-states may also strengthen international criminal law: Despite sustained criticism of the ICC, the AU consistently reiterates African commitments to combating impunity, and member-states continue to engage in interpreting and negotiating the Rome Statute instead of completely discarding it. 2) Solutions

AU criticisms of the ICC are largely invalid: most referrals to the Court were made by African governments themselves, and empirical evidence has not shown a derailing of peace efforts by the ICC but amelioration of conflict in Africa. However, with the Court’s effectiveness heavily dependent on state cooperation, the ICC must still pay greater attention to AU concerns, and implement steps towards successfully restoring cooperation from AU member-states. This demands a broadening of the Court’s main focus on achieving

accountability, towards expanding and reinforcing its currently poor efforts to mollify the AU. (a)

Expanding Reach

The Court’s first investigation in a non-African nation, Georgia, has taken 14 out of its 15 years of existence to conduct. Moreover, the Office of the Prosecutor’s assertion that ‘gravity’ remains the ‘main criterion’ for ICC interventions, is not reflected in its lack of involvement beyond a preliminary investigation in far graver situations such as in Iraq or Syria, which demand ICC intervention. While the ICC has withdrawn charges against Kenyatta and his officials, the Court must still take further steps to prosecute individuals from other regions to further dispel the myth of its bias against Africa, and take concrete action evidencing that Africa will not remain the Court’s ‘experimental farm’. (b)

Engaging Governments

The ICC should also consider engagement with African governments, which it is well positioned for given the continent is adequately represented in the Court, with five Africans among its current 18 judges, and a native Gambian, Fatou Bensouda, serving as the current Chief Prosecutor. In engaging African governments, the ICC must remain conscious of the main concern underlying the AU’s opposition: Al-Bashir’s indictment is perceived as a ‘dangerous (precedence) of indicting a sitting Head of State’, and threatens African leaders’ selfpreservation and political survival, many of whom have gained power through armed coup, and therefore fear losing power through criminal accountability. This fear is manifested in the AU’s 2014 amendment of the statute of its African Court of Justice and Human Rights, explicitly preventing the Court from prosecuting sitting Heads of State. To assuage these concerns, the Office of the Prosecutor should therefore issue Policy Papers establishing how its activities will enable peacemaking, and detailing how existing misperceptions across Africa may be rectified and remedied. As an extension to engagement, the ICC must also continue to manage non-compliance diplomatically, as it has done with South Africa’s non-compliance, choosing not to refer

South Africa’s non-compliance to the Security Council as resulting sanctions would have exacerbated ICC-AU tensions and worsened prospects for cooperation. (c)

Engaging Civil Society

Furthermore, the ICC may engage with African civil society, as the AU’s current opposition remains political rather than social. African civil society has been largely supportive of the ICC’s efforts, which successfully mobilised domestic courts to order for Al-Bashir’s arrest, and successfully blocked withdrawals from the ICC. Most importantly, civil society has successfully pressured the South African government to reverse its initial commitment to the AU’s decision against ICC cooperation, leading to a government statement in 2009 clarifying its commitment to arresting Al-Bashir. The ICC may thus engage civil society to remind African governments of their Rome Statue obligations and the importance of cooperation in preventing impunity. Additionally, civil society may be engaged to call for domestic implementation of the Rome Statue, which promotes cooperation by reducing the distance between the state’s goals and that of international criminal justice. By emulating efforts in Kenya and South Africa, civil society can be effectively engaged to contribute towards achieving African cooperation. D Conclusion

The ICC’s current failure therefore reiterates that accountability should neither be the defining metric in assessing adjudication, nor its sole objective. IV CONCLUSION

The preceding discussion highlights that IDR mechanisms do not necessarily fail in holding the ‘big’ fish accountable, while ‘small fish’ may still elude capture. Moreover, conceptualising IDR mechanisms as tools for achieving a binding settlement obscures their full effect on state behaviour, and accountability should not be used as the defining metric in binary evaluations of their effectiveness. Instead, IDR mechanisms must be evaluated with reference to their purpose – the achievement of peaceful dispute settlement. Failures to achieve complete accountability should not immediately condemn IDR mechanisms as ineffectual, but highlight areas for improvement. Ultimately, an obsession over a net’s holes when assessing IDR mechanisms has little utility and should be replaced by efforts to mend and reinforce approaches. 40

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The Advocate, Spring Edition 2019

Articles inside

Poking at Holes in a Net: Challenging Contentions of International Dispute Resolution – By Daniel Kang

Sovereignty, State Responsibility & Attribution in Cyberspace – By Lauren Skinner

The expansion of criminal law within refugee law as central to Australia’s breach of international obligations – By Imogen McKay

Statelessness in Modern International Law – By James Hall

State Responsibility: A Weak Cage for International Wild Animals? – By Daniel Kang

Is the UN all talk and no walk? How International Law Can Address the Climate Crisis – By Annika Reynolds

Emerging challenges in achieving consensus: the future of the Security Council and the implications for human rights – By Alexander An

The Difficulty of Targeting Organised Armed Groups: A Review of the ICRC’s Continuous Combat Function in Practice – By Joey Biddle

Whale-intentioned boycotts won’t deliver results: Snubbing exports won't save the whales – By Dominic Harvey-Taylor

To Infinity and Beyond International Law: The First Space Crime – By Rebeccah Richards

Editor's Foreword