Welcome to the October edition of the ANZSIL newsletter.

In this edition

	From the Editors
	From the President
	Recent Australian Practice
	Recent New Zealand Practice
	Upcoming Events
	Personalia
	Journals - Calls for Papers

News in brief

ANZSIL launches new webpage and electronic newsletter.

From the Editors

A very warm welcome to the inaugural electronic version of the ANZSIL newsletter launched with the revamped ANZSIL webpage.

Thanks to our friends in government in Canberra and Wellington we are able to bring you an update on recent international law practice from both sides of the Tasman. You will also find details of upcoming events together with news from some of our members.

The next newsletter will be in early 2009, and if you have any item you would like to include please get in touch with us. We are particularly keen to hear from members on their exciting international law careers for the Personalia section.

Sarah McCosker and Tim Stephens

From the President

International law in the 21st Century bears a heavy burden. As Koskenniemi put it:

I do not think that international law is often invoked because of the sophistication of its rules or institutions. Those rules or institutions are as vulnerable to criticism as any other rules or institutions. The fact that they are ‘international’ is no proof of their moral value. But the tradition of international law has often acted as a carrier of what is best described as the regulative idea of universal community, independent of particular interests or desires.

It is encouraging, therefore, that so much fresh and original thinking on the most challenging issues of international law today is being produced by international law scholars and practitioners in Australia and New Zealand – from leadership in ground-breaking treaty-making on cluster munitions, disabilities, and fisheries management; to scholarship in areas as diverse as human rights and refugees, international economic law, international humanitarian and criminal law and the environment – to name but a few areas of current work.

Our recent Annual Conference in Canberra, organized with vision and flair by an Organising Committee chaired by Professors Gerry Simpson and Kim Rubenstein, tackled the big issues under the theme of Security, Scarcity and Struggle. Four scholars from the Society have just returned from the most recent symposium in the Society’s joint research project with the American, Canadian and Japanese Societies on International Law and Democratic Theory, held in Edmonton, Canada. A symposium in Wellington in December will consider the contemporary role of international human rights law on the 60th anniversary of the Universal Declaration.

But any vigorous and active Society needs a regular voice to maintain contact between meetings; to update members on recent developments of interest in the region; and to serve as a forum for ideas.

With these thoughts in mind, the Executive Council has launched a major re-design of our web-site and also the Society’s first ever E-Bulletin. We are very grateful to Dr Tim Stephens of the University of Sydney, and Sarah McCosker of Office of International Law in the Australian Attorney-General’s Department, who have taken on the E-Bulletin editorship with such energy and flair. Our thanks also go to Andrew Williams of the New Zealand Ministry of Foreign Affairs for providing invaluable briefings on current developments. Finally, we thank Paul Liddlelow, who has brought his wonderful design expertise to bear for our benefit.

I hope that you find this first issue useful; I encourage you to contribute to future issues (which will be published three times a year); and I look forward to meeting you all again – at next year’s conference in Wellington (2-4 July 2009) if not before.

Professor Campbell McLachlan QC

Recent Australian Practice

From the Office of International Law, Attorney-General's Department

Cluster munitions

On 30 May 2008, a new cluster munitions Convention was adopted following a two week negotiating conference in Dublin. Over 120 countries, including Australia, participated in the negotiations, along with non-government and international organisations. The negotiations were a culmination of a process commenced in Oslo in February 2007 and included conferences in Lima, Vienna and Wellington. Australia played a significant role in the negotiations, including on the issues of definitions, victim assistance and the effect of the Convention on operations with non-States parties.

Cluster munitions have caused significant humanitarian harm over many decades in places such as Laos, Vietnam, Cambodia, Afghanistan, Iraq and Kosovo. Cluster munitions tend to have indiscriminate effects when dropped in civilian populated areas, and those which fail to explode may affect communities for years to come.

The new Convention bans the use, production, stockpiling and transfer of all munitions that can accurately be described as cluster munitions. State parties will be obliged to destroy all remaining stockpiles and clear cluster munition remnants from their territories. There are strong provisions on assisting victims of cluster munitions and their affected communities.

The Convention will be open for signature from December 2008 and will have legal force when 30 countries have ratified. Some major stockpilers and users of cluster munitions did not participate in the negotiations. However, many North Atlantic Treaty Organization (NATO) States, as well as countries such as Australia and Japan, were engaged in the process.

Separate negotiations to regulate the use of cluster munitions within the framework of the Certain Conventional Weapons Convention are continuing in the lead up to a meeting of States parties in November 2008. Australia is participating in this process, along with major producers and stockpilers of cluster munitions.

International Criminal Court: Crime of Aggression

The Australian Government has been involved in discussions during the Assembly of States Parties to the International Criminal Court (ICC) on provisions amending the Rome Statute to allow the Court to exercise jurisdiction over the crime of aggression. The crime of aggression seeks to impose criminal liability on leaders for their involvement in a State’s commission of an act of aggression against another State. The Rome Statute provides that the Court will exercise jurisdiction over the crime of aggression only after the adoption and entry into force of provisions defining the crime and setting out the conditions for the exercise of the ICC’s jurisdiction over the crime. The Assembly of States Parties aims to finalise discussions on the crime of aggression by February 2009 in advance of the first review conference of the ICC, scheduled for 2010.

A key outstanding issue is the conditions under which the ICC will exercise jurisdiction over the crime of aggression, including the role of the Security Council in triggering the ICC’s jurisdiction. The scope of the State act of aggression giving rise to individual criminal liability, including the extent to which the Rome Statute will incorporate or refer to the definition of aggression in UN General Assembly Resolution 3314 (1974), has also been a focus of recent discussions.

International Fisheries law

Over the past year, the Australian Government has been active in developments in international fisheries law. Australia, together with New Zealand and Chile, is co-sponsoring the negotiations for a South Pacific Regional Fisheries Management Organisation. This organisation will be responsible for conserving and managing living marine resources not already covered by other international agreements in the South Pacific Ocean. The area to be covered will extend from the eastern part of the South Indian Ocean through the Pacific to the outer edge of waters under the jurisdiction of South American States. The sixth round of the negotiations will be held in Australia in October 2008.

Port State measures agreement

The Australian Government has also been involved in the Consultations to establish a port State measures agreement to combat illegal, unreported and unregulated fishing.
The agreement has the potential to prevent the products of illegal, unreported and unregulated fishing from entering the marketplace, and to deny port access and services to vessels engaging in such fishing. Port State controls have the potential to be an effective way to deprive those engaging in illegal, unreported and unregulated fishing of the benefits of their activities, and would provide a second line of defence against inadequate flag state control of fishing vessels. However, clearly, widespread adoption and implementation will be required for the agreement to be truly effective. It is hoped this text will be finalised for adoption in 2009.

UNCITRAL Arbitration Rules

The United Nations Commission on International Trade Law continues to develop revisions to the UNCITRAL Arbitration Rules. The Rules are being revised to bring them up-to-date in light of developments in international arbitral practice since the Rules were adopted in 1976. However, the spirit and structure of the Rules will be retained. The Australian Attorney-General’s Department is leading Australia’s negotiations on this project, with representatives from the Law Council of Australia and the Australian Centre for International Commercial Arbitration.

UNCITRAL Convention on contracts for the international carriage of goods wholly or partly by sea

On 3 July 2008, UNCITRAL adopted a final text of the Convention on contracts for the international carriage of goods wholly or partly by sea. The Convention will introduce a new legal liability regime for the international carriage of goods where there is an international sea leg. The intention is that if it enters into force it will replace the existing rules, namely the Hague Rules, the Hague-Visby Protocol, the Hamburg Rules and the various regional arrangements.

The UNCITRAL Commission spent two weeks considering the draft Convention as presented to it by the Working Group on Transport Law. The main changes made by the Commission were the deletion of Article 13 (a provision which was intended to validate the traditional ‘through’ bill of lading), the deletion of Article 36 (concerning the contractual limitation of shipper’s liability) and amendments to Article 49 (concerning delivery without the production of the bill of lading). The formal report of the meeting notes that, by deleting Article 13, the Commission did not intend to prevent the current practice of using ‘through’ bills of lading. Australia and a number of other countries unsuccessfully sought deletion or substantial amendment of the volume contract provision which allows freedom of contract for certain shipments in the liner trade. It remains a matter of concern as it could be used as a means of derogating from the otherwise mandatory liability regime.

The text will be transmitted to the United Nations General Assembly for formal approval later in 2008. If approved, the Convention will be open for signature by countries in September 2009. The Government of the Netherlands have offered to host a signing ceremony in Rotterdam in September 2009 in order to promote the Convention.

Australia ratifies UN Disability Convention

On 17 July 2008, Australia ratified the UN Convention on the Rights of Persons with Disabilities, making Australia one of the first countries to do so. The Convention entered into force for Australia on 16 August 2008. With 37 States Parties currently, the Convention aims to promote a global community in which all people with disability are equal and active citizens. Australia has a long-standing commitment to upholding and safeguarding the rights of people with disability, and ratifying the Convention demonstrates the Government's international commitment to ensuring that people with disability are treated equally.

Australia’s ratification is the result of substantial collaboration by Government and non-government stakeholders. Ratification came after the Australian Government expedited its ratification processes and the Joint Standing Committee on Treaties supported taking binding treaty action. It also means Australia can participate in the inaugural election of the Committee on the Rights of Persons with Disabilities, which will oversee the implementation of the Convention. Australia has nominated for election to the Committee Professor Ronald McCallum AO of the University of Sydney.

Australia issues Standing Invitation to UN Special Procedures

On 7 August 2008 the Australian Government announced that it will extend a standing invitation to UN human rights experts to visit Australia, demonstrating its willingness to engage positively with the international community to implement human rights obligations.

The UN Human Rights Council has a mandate to examine, monitor, advise and report publicly on human rights situations in specific countries, or on major human rights issues anywhere in the world. However in order to send a Special Rapporteur or a working group to any country, permission of the receiving country must be obtained.

By extending a standing invitation, Australia joins 61 other countries, including the United Kingdom, New Zealand and Canada, who have adopted this positive approach. The decision underscores the Australian Government’s commitment to strengthen Australia’s engagement with the UN and to be a leader in international human rights.

Australia’s Extended Continental Shelf Confirmed

On 9 April 2008, the Commission on the Limits of the Continental Shelf established under the 1982 United Nations Convention on the Law of the Sea confirmed Australia’s entitlement to an area of continental shelf beyond 200 nautical miles (extended continental shelf) of approximately 2.56 million square kilometres. The area is depicted in the map available here.

Each coastal State is entitled to a continental shelf of at least 200 nautical miles measured from its territorial sea baseline. It is entitled also to an extended continental shelf (ECS) where the natural prolongation of its land territory extends beyond that point. Where an entitlement to an ECS exists, a submission must be made by the relevant country to the Commission seeking confirmation of that entitlement. Australia lodged its submission with the Commission in November 2004. It was the third country to do so.

Australia’s engagement with the Commission over seven sessions covered complex geomorphological, geological and legal issues. The more complex legal issues included the manner in which the Commission should deal with Australia’s maritime delimitations, the construction of the outer boundary of the ECS and submarine ridges.

Australia had sought confirmation from the Commission of some 3.37 million sq km of ECS. In so doing, Australia requested the Commission not to consider for the time being some 0.7 million sq km of ECS adjacent to the Australian Antarctic Territory. Also, two areas of the ECS (the Joey Rise and the Williams Ridge – approximately 0.08 million sq km) are yet to be fully resolved by the Commission. An area of approximately 0.05 million sq km was relinquished in the course of engagement with the Commission. Australia is now in a position to proclaim the outer limit of most of its continental shelf under the Seas and Submerged Lands Act 1973.

Recent New Zealand Practice

From the Ministry of Foreign Affairs and Trade

IUU Fishing: ‘Paloma V’ case

In June 2008, New Zealand's Ministry of Fisheries and Ministry of Foreign Affairs and Trade successfully defended judicial review proceedings in the High Court in Wellington, arising out of a Ministry of Fisheries examination in May of a Namibian-flagged vessel, the Paloma V, which had called into Auckland to unload toothfish.

Fisheries officers found information aboard the vessel linking it to illegal, unreported and unregulated (IUU) fishing. For example, the boat’s computer records revealed that it had been in contact with known IUU fishing vessels and had re-supplied them at sea.

The vessel’s owners then instructed lawyers to try to stop New Zealand reporting this information to the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and proposing the vessel for inclusion in CCAMLR’s IUU vessel list.

The lawyers for the Namibian vessel claimed the in-port vessel search process was flawed. They argued that New Zealand had to use the special, more limited, high seas boarding and inspection regime under Part 6A of the Fisheries Act 1996, because that applied the law of the high seas.

The Court found in the Government’s favour, accepting that New Zealand has broad powers of discretion to determine whether to apply domestic or international powers of search in New Zealand waters.

Following the High Court’s decision, the government filed its CCAMLR report. Namibia has since de-registered the Paloma V based on the information New Zealand provided to CCAMLR. The proposal to IUU list the Paloma V will be considered at CCAMLR’s annual meeting in Hobart in October.

To see the full judgment please go to http://jdo.justice.govt.nz/jdo/search.jsp and enter the search word "Omunkete".

Agreement Establishing the ASEAN – Australia-New Zealand – Free Trade Area

New Zealand and Australia reached substantive conclusion of the Agreement Establishing the ASEAN - Australia-New Zealand – Free Trade Area with the ten ASEAN member states in late August. This Agreement is the first time that ASEAN has negotiated a comprehensive free trade agreement as part of a ‘single undertaking’. All Parties to the Agreement will now undertake legal verification of the texts and the associated schedules. Once this has been completed domestic approval processes will also need to take place before a finalised document can be put forward for signature.

Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings a Regulatory Enforcement

Australian and New Zealand signed on 24 July the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings a Regulatory Enforcement. The objective of this Agreement is to simplify the service of civil court proceedings between Australia and New Zealand and the process of enforcing an expanded range of court judgments on a trans-Tasman basis.

Legislation passed for UN Convention on the Rights of Persons with Disabilities

The Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill was passed on 2 September. The Bill removed outdated and discriminatory provisions in some pieces of legislation that automatically disqualified a person from certain public or fiduciary offices on the grounds of being mentally disordered within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or being subject to a compulsory treatment order under that Act. Instead, the Bill proposed amendments to such legislation to ensure a person’s capacity to perform a role or function is able to be individually assessed. The Bill also clarified the provision of reasonable accommodation in the Human Rights Act 1993. The passage of the Bill was the last remaining step to enable New Zealand to ratify the United Nations Convention on the Rights of Persons with Disabilities. New Zealand will ratify in time to take part in the first Conference of States Parties of the new Convention, scheduled to take place late next month in New York.

Upcoming Events

Celebrating 60 Years of the Universal Declaration of Human Rights
Victoria University of Wellington, 9 & 10 December 2008

A symposium jointly hosted by the New Zealand Centre for Public Law and ANZSIL.

In 1948 New Zealand played a constructive and noticed role in assisting towards the formulation of the Universal Declaration of Human Rights (UDHR). That involvement, like its outcome, we believe warrants suitable recognition in this the 60th anniversary year of the UDHR. The aims of this conference include:

* An evaluation of 60 years of the UDHR as a living document
* An opportunity for scholars and human rights practitioners to expound their findings and concerns over contemporary human rights issues, particularly (but not exclusively) as they affect New Zealand and its immediate regional neighbourhood;
* An opportunity to identify the key human rights challenges confronting the global community into the immediate and longer term future.

Looking to the next sixty years, the organisers are keen to have youth and student participation actively facilitated at all levels of proceedings.

The 2nd Ingram Colloquium on International Law and Development - Climate Change and Developing Countries: Challenges for the Pacific
Faculty of Law, University of New South Wales on Thursday 6 November 2008 from 3-7pm.

The Colloquium will explore the legal, policy, technological and practical challenges that developing countries in the Pacific region face in mitigating and adapting to climate change while meeting their social and economic needs. Issues to be explored will include the legislative, regulatory, policy and technological measures that these states are using or may adopt to meet these challenges, including issues relating to food security, energy security, geo-engineering solutions and mitigation technologies. Other issues to be explored will include a consideration of how developing states in the Pacific can position themselves in the ongoing negotiations to develop a post-2012 instrument to replace the Kyoto Protocol, what the role of these states will be in a post-2012 regime, and how governance of climate-related policy issues might be improved within these states to better contribute to the goals of sustainable development. Consideration will also be given to the role Australia can - or should - play in assisting developing states in the Pacific to meet these challenges. The event will be free and is open to the public. However, registration will be required. Registration will open on 1 October.

Public Seminar - Disintegration Through Law? On the Decomposition of Citizenship in Europe
Professor Dr Alexander Graser (Hertie School of Governance, Germany)
Friday 7 November 2008, 1-2pm
National Europe Centre, Australian National University
1 Liversidge Street, Building 67C, ANU

Public Lecture - Why Habeas Corpus Should be a Jus Cogens Norm in International Law
Professor Larry May (Washington University)
13 November 2008, 1pm
ANU College of Law, Staff Library

Call for Papers for Joint ANZSIL - Indian Society of International Law Workshop
New Delhi, 5-6 December 2009

ANZSIL invites members to submit proposals for papers to present at a joint ANZSIL/ISIL workshop on *Contemporary challenges to international law* to be held in New Delhi 5-6 December 2009.

The workshop will provide an historic opportunity for Australian and New Zealand scholars to exchange ideas about future directions in international law with their Indian colleagues. Indian scholars have been at the forefront of debates about critical approaches to international law, including feminist and third world approaches. Indian jurists have also played a significant role in the development of human rights law and the international law relating to terrorism.

Papers might focus on one of the following issues:
* Climate change and the environment
* Responses to terrorism
* International human rights standards
* Critical theories of international law
* International humanitarian law

A total of eight ANZSIL members will be able to participate as paper-givers, but others are welcome as observers/discussants. ANZSIL members will be expected to fund their own travel to and accommodation in India, but a small supplement may be available in cases where ANZSIL members* institutions are unable to contribute to these costs.

Applicants should submit by 30 November 2008: (1) A one page abstract of their paper proposal, which also explains how an engagement with Indian scholars is likely to further their research; and (2) A one page curriculum vitae. Applications should be submitted in the first instance to Professor Hilary Charlesworth at hilary.charlesworth@anu.edu.au. All applications will be reviewed by a Committee appointed by the Council of ANZSIL before a final decision is made.

Personalia

Robert McCorquodale (formerly at ANU and former Treasurer of ANZSIL) is now Director of the British Institute of International and Comparative Law. He took up this post in January 2008 after being Dean of the School of Law at the University of Nottingham and Professor of International Law and Human Rights there (from which he is on secondment now). As Director he is following in the (elegant) shoes of Gillian Triggs. This year the Institute celebrates its 50th anniversary. The Institute has Visiting Fellowships that may be of interest to ANZSIL members.

Sue Harris Rimmer has passed her thesis examination and will be awarded the degree of Doctor of Juridical Science (professional doctorate) at the Australian National University (ANU) in December 2008. Her thesis focuses on how the transitional justice processes in East Timor affected women. In September 2008, Susan joined the Regulatory Institutions Network of the ANU to work with Professor Hilary Charlesworth on the ARC grant *Building Democracy after Conflict*.

Journals - Calls for Papers

The International Journal of Human Rights is now calling for papers for a Special Double Issue: Science, Human Rights and Peace: Papers in Honour of Frank Barnaby (volume 15, Issues 3/4, June 2011). Manuscript submissions written in the context of any disciplines, provided they touch upon the role of science in human rights and/or peace, will be welcomed. We particularly encourage submissions from a multidisciplinary or comparative perspective. All submissions will be refereed. For further information please visit the IJHR homepage.

The Asia Pacific Journal of Environmental Law is calling for submissions for the first issue of volume 12 (2009). The journal editors welcome submissions of articles, comments, country reports and book reviews on issues of environmental law and policy relevant to the Asia Pacific region, including developments in regional and international environmental law. All submissions are subject to external review. The deadline for submissions for volume 12 issue 1 is 27 February 2009. For further information please visit the APJEL homepage.

ANZSIL
ANZSIL Secretariat
Centre for International and Public Law
ANU College of Law
Australian National University
Canberra ACT 0200

cipl@law.anu.edu.au
+61 2 6125 0454