the international advocate vol 4 issue 1

INTERNATIONALADVOCATEOctober 2014Volume 3 Issue 3

INTERNATIONALADVOCATEMarch 2015Volume 4Issue 1

Feature Article

‘Legally Binding’ Demands are still the biggest Climate DealbreakersLuke Kemp

Editor Elisabeth Storor

Publications Team Katelyn Ewart, Jacky Song

President Megan LingafelterVice President Alex FergusonCareers Director Simone BurkeCompetitions Director Stephanie KimEducation Director Madeleine BowdernEvents Director Katelyn EwartFinance Director VacantPublications Director Elisabeth Storor

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

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Cover image credit: Ben Steenstra for Mindd, sculpture by Isaac Coordal in Berlin, Germany entitled ‘Politicians discussing Climate Change’ (2014)

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Editor’s WelcomeWelcome to the first issue if the Advocate for 2015.

In this issue, I am delighted to feature Luke Kemp’s timely article on the politics of ‘legally binding’ climate change agreements. I would also encourgae readers to peruse Sherwood Du’s fascinating essay exploring the extent of juridicial power to prosecute transnational corporations over human rights violations. Du was the runner-up in our international law essay competition which we hope to hold again this year.

In the rest of the issue you will find Laura Stockdale’s article on her experiences as an intern at the International Criminal Tribunal for the Former Yugoslavia, a reflective piece on the Annual Lionel Murphy Lecture and our World News Column by Jessica Wat. I hope you enjoy the issue and encourage all readers to consider joining the International Law Society in 2015.

Elisabeth Storor, Editor

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‘Legally-binding’ demands are still the biggest climate dealbreaker Luke Kemp

A Realistic World Court of Human Rights must have Jurisdiction over Transnational CorporationsSherwood Du

International Criminal Law is the New International LawLaura Stockdale

World NewsJessica Wat

22 Reflection on the Annual Lionel Murphy lecture Elisabeth Storor

4 | INTERNATIONAL ADVOCATE

Could the preoccupation with legally binding targets sink the next climate deal in Paris in 2015?

In the run-up to this week’s Lima talks, widely seen as a precursor to the Paris summit, the Abbott government was accused of attempting to set up the talks for failure by insisting upon legally binding targets for emissions cuts.

At the Lima summit, foreign minister Julie Bishop seems to have softened that stance considerably, backing down on this demand but still insisting that her preference is for targets to be legally binding, to avoid them being seen as “just an aspiration”.

Australia’s previous hardline position led to accusations that it is attempting to discredit and undermine a Paris agreement that will almost certainly not have legally binding targets (although there is also a suggestion that Australia is pushing a much more conciliatory line in Lima than it is at home).

Strange Bedfellows

But while all this might be seen as political posturing on Australia’s part, there are other nations – the small island developing states, African countries, and many others – who are earnestly insisting on a legally binding targets, and have done so all along.

‘Legally Binding’ demands are still the biggest climate dealbreakersLuke Kemp

INTERNATIONAL ADVOCATE | 5

Delegates at the Inauguration Ceremony of the 2014 UN Climate Change Conference in Lima, Peru. Image credt: Ministerio de Relaciones Exteriores, Peru

They make strange bedfellows with Australia, to say the least. Why would the most vulnerable and concerned about climate change share a position with a government renowned for its climate scepticism and obstructionism?

The answer is that both are pushing for a legally binding outcome for polar opposite reasons.

For Australia, there are still legitimate suspicions that it is trying to set up Paris for failure, although Bishop has softened in this respect. For the most vulnerable nations to climate change, it is a sincere push for the most effective solution.

And what is even stranger is that both are right.

Targets and Pledges

As I have argued previously, a legally binding deal is probably necessary to address climate change effectively. Despite some advantages to a non-binding, “pledge-based” system, it is trumped by the certainty and reliability that international law would provide.

Unfortunately, however, there is also the simple matter of political feasibility. A legally binding deal is likely to be left in the cold by the largest polluters.

The United States, for instance, requires a two-thirds supermajority vote in its Senate to ratify an international treaty.

Foreign Minister Julie Bishop at the UN Climate Talks in held Lima, Peru. Image credit: UN Photo


It has previously failed to pass the Kyoto Protocol through the Senate, and given that the conservative Republican Party recently gained control of both sides of Congress, it seems that US ratification of an ambitious and binding agreement is a foregone dream.

In turn, China, the world’s largest greenhouse emitter, seems unlikely to ratify any agreement that doesn’t include the United States. Thus a deal with legal targets will probably not have the United States or China on board, despite the strong, non-legislated pact agreed by the two nations last month.

It is this underlying politics that has led many to speculate that Australia’s push for a deal on legally binding emissions cuts is not being done in good faith.

But the repeated assertion that a deal without China or the United States is worthless, is completely misleading. The majority of successful past multilateral agreements did not have universal beginnings. The original Montreal Protocol left out many important countries, including China. The General Agreement on Tariffs and Trade only featured a small number of developed countries.

It eventually snowballed into a wider, larger structure: the World Trade Organisation. The same can be said for the European Union, or even the United Nations.

The conventional wisdom of having universal agreements is only a recent phenomenon. It is an ideal that does not have much support from history or academia. That said, the leadership of a major power seems to be an essential ingredient for multilateral success.

To some extent, international treaties are a case of picking your poison. A highly ambitious, legally binding climate agreement will probably preclude the US and China from signing up. An agreement with the US is going to have to be something far weaker and without legally binding targets.

In other words, the agreement will be watered down as the price of admission for more participants. On the other


‘To some extent, international treaties are a case of picking

your poison’

hand, strong, binding agreements come at the cost of having fewer countries involved.Getting the US to ratify an international climate treaty has proved to be reoccurring a Achilles heel for negotiations.

The insistence upon US involvement has generally led to weaker treaties that the US won’t ratify anyway – hence the call from British climate economist Nicholas Stern for legally binding requirements to be dropped. A stronger agreement without broad participation but which grows over time isn’t necessarily a bad idea.


In 2014, Luke was a third year PhD candidate at ANU. Luke is a Research Fellow with the E a r t h S y s t e m G o v e r n a n c e P r o j e c t a n d R e s e a r c h A s s o c i a t e w i t h t h e F r e e University of Berlin.

Great expectations: Chile’s President Michelle Bachelet, left, Colombia’s President Juan Manuel Santos, secondleft, Peru’s Environment Minister and President of the COP, Manuel Pulgar Vidal, center, Peru’s President Ollanta Humala and U.N. Secretary General Ban Ki-moon. Image credit: AP Photo/Rodrigo Abd (The Associated Press)

Either that, or a creative new approach to legality and US participation will be needed. The pursuit of legally binding targets may very well crash the Paris negotiations. But if we shift to accommodate a pledge-based system, we need to make sure it isn’t just as weak.

Indeed, the creation of the World Court of Human Rights (WCHR) that offers a ‘uniform interpretation of the world human rights law’ must shift from state-centric focuses to take TNCs into account. The predominant focus of IHRL in relation to states is misguided as it does not reflect the contemporary world where TNCs can interfere with human rights irrespective of sovereign borders. This paper will attempt to provide plausible parameters under which TNCs may be held liable at the WCHR; focusing on the scrutiny of existing instruments outlining TNC responsibilities. Barriers to WCHR realisation such as resistance by states and TNCs, and incentives will be explored to offer reasonable solutions to include TNCs within WCHR jurisdiction.

Opposition perspectives

Primacy of states

Proponents against inclusion of TNCs focus on traditional state


A Realistic World Court of Human Rights Must have Jurisdiction over Transnational CorporationsAdvocate Essay Competition, Runner-upSherwood Du

Instead of an ‘international court,’ an expression that would reflect the consent-based and inter-state oriented nature of human rights law so far, the notion of a World Court signals the capacity of the proposal to respond to contemporary challenges in our globalised world.

– Martin Scheinin, United Nations Special Rapporteur on the Protection and Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism (2005-2011).1

Introduction

In the 21st century, it should be possible to extend the reach of international human rights law (IHRL) to encompass non-state actors such as transnational corporations (TNCs) that have capacity to influence global affairs. A major disadvantage of the status quo is the emphasis on human rights treaty monitoring mechanisms burdening states only, creating a vacuum of human rights applicability in TNC contexts.

roles. Traditionalists contend that the foundations of international law rest in the primacy of states. By providing TNCs direct duties, TNCs bypass state consent as a radical departure from the central role of states. An illustration of states reticent of TNCs gaining independent legal status in IHRL is provided by the drafting history and reception of the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. The Norms was drafted by the 1998 Working Group on the Working Methods and Activities of Transnational Corporations initiated by a Sub-Commission of the UN Commission

on Human Rights. It was tasked with making recommendations on how the promotion of human rights can be consolidated with TNC economic objectives. In particular, the Norms advocated imposing non-voluntary human rights obligations directly on TNCs, rather than ‘through the intermediary of the states.’ Instead of states taking responsibility to introduce legislation to indirectly regulate TNCs within respective jurisdictions, ‘rigid enforcement mechanisms including the monitoring by non-state actors’ would take place to create a non-voluntary framework. To address concerns of TNCs supplanting the role of states, the Norms emphasised its nature as


The 26th session of the UN Human Rights Council, which established a working group to prepare a treaty impos-ing international human rights legal obligations on transnational corporations. Image credit: Jean-Marc Ferre


an ‘evolving document’ reflecting contemporary standards and the growing influence of TNCs affecting human rights issues. It also reassured sceptics that TNCs would not assume state responsibilities. This intention is reflected in article 1 of the Norms which provides that states have ‘primary responsibility’ to ensure TNCs respect human rights.

Nevertheless, while the Norms’ purposes was not disputed, the practical effect of the Norms was dismissed as relegating the primacy of states in favour of TNCs; overstating its reflection of existing IHRL principles against international law’s positivist traditions; fusing the fields of public and private international law in undermining state legislative power. Moreover, critics point to the ‘demotion’ of states where states only have ‘primary responsibility.’

While the intentions of the drafters was to ensure the protection of human rights where states fail to act, critics argued that it widened the scope of IHRL of TNCs having de facto responsibilities by virtue of the absence of state action. Also, critics were unconvinced by the idea of a power sharing arrangement between states and TNCs which characterised TNCs having obligations within their ‘respective spheres’ of influence. This terminology was criticised as being too vague and implied that TNCs

had a positive duty to act against state interests if necessary to comply with the Norms. TNCs also raised objections as to how far liability attracts in reference to diverse supply chains and sub-contractors in instances of indirect duties. To guide the type of enforceable rights, the Norms encompassed not only first-generation civil and political rights, but also second and third generation rights such as social, economic and cultural rights.

The inclusion of binding obligations on different generational rights led to criticisms of impractical enforcement between existing international law and aspirational soft law. In effect, by expanding TNC responsibilities to not only uphold economic rights, but into the fields of civil, cultural and political rights means that TNCs become ‘virtual state actors.’ To emphasise, the direct obligations on TNCs gave rise to contradictions in TNC obligations traditionally reserved for state enforcement. Notwithstanding, the main conceptual obstacle was the paradigm shift of altering IHRL foci from state primacy. For example, the Australian Government communicated its opposition to the Norms advocating that:

… legal responsibility for the implementation of international human rights standards rests primarily

with those States who are party to the standards, not individual businesses. Businesses are obliged to comply with the laws of the countries in which they operate.

The main barriers to TNC inclusion is related to the conceptual nature of international law in the rejection of TNCs having direct obligations bypassing the consent of states and the expansion of TNCs duties in conflict with states. The next part of this paper will evaluate the concept of state primacy – its adaptability in contemporary times in relation to state responsibility, the deficient nature of existing TNC regulations and the merits of TNCs accepting WCHR jurisdiction.

Addressing contemporary changes

Rise of TNC influence

Historically, human rights were characterised as a contract between the state and the populace acting ‘as a shield’ against state interference in private life. This relationship implied participatory rights in civil society and rights to state protection. In turn, the origins of TNCs in the 17th century depicted TNCs as existing ‘for the sole


benefit’ of states and could be easily dismantled by the state if they acted against public interests. Hence, states were the dominant international law actors. However, it is important to evaluate the status of contemporary TNCs by factual illustration to discern whether state-centric doctrines are tenable to deal with the evolving nature of human rights violations. First, since the late 19th century, TNC functions evolved from serving public interests to private interests and were given juridical personality. This allowed TNCs to disassociate from stringent state governance in that TNCs had an independent existence from the state; only accountable to investors.

In contemporary times, TNCs are credited to comprise 51% of the world’s wealthiest entities and only 200 TNCs amount to a quarter of the world’s productive assets. Evidently, states are no longer the most powerful actors in the world. The impact of this concentration of economic power permeates into social spheres such as domestic and international politics, health, labour, environment, agriculture, energy and technology sectors. Inevitably, the reach of TNCs interests implicates them in human rights abuses. However, domestic governments are hesitant to impose


legislative restrictions on lucrative foreign investment opportunities and are even accused of colluding with states in order to prioritise economic expediency. In turn, this gives rise to new kinds of human rights violations falling outside the scope of state-centric international law. Contemporary TNC abuses can take place where private security deployed by TNCs abroad engage in activities such as torture, executions, arbitrary arrest and forced labour of local communities. The fundamental notion of IHRL is canvassed in the right to an effective remedy in the form of reparations. However, there is a legal vacuum in the context of TNC obligations beyond the limits of domestic laws. Indeed, the

only domestic jurisdiction in the world where non-citizens can claim for civil actions committed abroad is the US Alien Tort Claims Act.

Nevertheless, as demonstrated by the recent case of Kiobel v Roya Dutch Petroleum Co., the complicated use of transnational torts to bring actions of specific human rights violations under domestic jurisdictions are inadequately adapted to IHRL purposes. This is because it classifies customary international law prohibitions against human rights violations as norms applying to natural persons that do not apply to juridical persons such as TNCs.

East meets West: globalisation has led transnational corporations to spread all over the world, including this pituresque McDonalds in Yangshuo, China. Image credit: Joshua Paul Shefman

The major flaw in that line of reasoning is that it detracts from the subject matter of human rights violations themselves – omitting the crucial consideration that ‘torture by a corporation is still torture.’ In terms of criminal cases, states are burdened by vested interests. States are reluctant to launch high-profile criminal actions against TNCs because of lobbying interferences from TNC interests such as employment opportunities offered by TNCs, insufficient resources to obtain evidentiary requirements transnationally and lack of public sentiment to pursue white collar crimes in distant locations. Hence, the use of domestic courts to attempt to address IHRL violations is problematic.

Shifting state responsibility principles

Under a proposed WCHR, the technicality between natural and juridical persons can be remedied by applying principles of state responsibility ‘in respect of Entities subject to its jurisdiction as if the act or omission attributed to an Entity was attributable to a State.’ This means that a WCHR would apply the Draft Articles on State Responsibility to TNCs. There is growing consensus

amongst international law academics in applying ‘mirror image’ principles to state responsibility.

As an initial matter, the extant rules of state responsibility that make the state liable for the acts of some private actors can provide for the responsibility of those private actors as well. That is, because the state is responsible for certain acts of private actors, those actors can also be held responsible for that same conduct under international law.

Ratner provides existing trends of TNCs being increasingly scrutinised by international agencies in corporate practices relating to human rights in jurisdictions such as: the UN Security Council’s condemnation of the illegal diamond trade in Sierra Leone, the European Parliament’s concerns about accusations of European companies violating human rights in developing countries, the South African Truth and Reconciliation Commission basing a chapter of its report on the involvement of businesses during Apartheid.


‘The only domestic jurisdiction in the world where non-citizens can claim for civil actions committed abroad is the United States Alien Tort Claims Act’


These examples showcase the ‘mirror image’ principles gaining traction amongst the international community and reflect the diverse spheres of influence TNCs permeate in civil society.

In response to state-centric critics, the judges of the WCHR would be nominated by states to represent state interests in WCHR administration; retaining a degree of control over TNC human rights issues.

Existing soft law

While TNCs may adopt codes of conduct, the non-binding nature of

codes detracts from their purposes of upholding human rights. In response to social awareness campaigns, TNCs recognise that human rights criticisms can lead to detrimental effects on their public brands. This has led to wide-spread human rights code proliferation. Corporate social responsibility measures are enhanced by the UN Global Compact initiative that urges TNCs to uphold human rights in their business activities. The theoretical reasoning of having codes is to define the scope of IHRL violations related to TNCs and used by review agencies to measure TNC misconduct against code standards. However, the practical impact of codes is severely limited.

South Africa’s Truth and Reconciliation Commission was a catalytic event in the establishment of judicial bodies with the ability to try non-governmental agencies for human rights violations. Image credit: Benny Gool—Oryx Media/Desmond Tutu Peace Centre

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First, codes are undermined by their voluntary nature. TNCs can decide whether to adopt codes and selectively discriminate between principles.

Second, codes define human rights in vague terms with unspecific redress for violations. This has the effect of not being enforceable under a transparent monitoring mechanism. To accentuate, the sheer number of internationally recognised codes – at least 246 – gives rise to confusion by both TNCs and victims as to which codes apply or do not apply in certain jurisdictions against competing standards. The failure of code initiatives have led to the criticism that ‘one has to ask whether these codes are anything more than lip service’ used as a marketing strategy to appease consumers.

Effect of WCHR Jurisdiction

By subjecting TNCs to binding obligations, a judgment against TNCs would not only provide reparations to victims, but also have wider impact in terms of symbolic sanction. A negative WCHR judgment against a TNC produces a deterrent effect to states that neglect to address human rights abuses in concert with TNCs. In addition, the possibility of sanction causes TNCs to re-evaluate corporate practices and revise

their relationships with states negligent of human rights responsibilities. Hence, binding obligations would ameliorate the injustices imparted on victims by reparations as well as deter future violations. From TNC perspectives, uniform IHRL interpretation can provide confidence to investors of the certainties offered within established international agreements instead of vague codes.

TNCs may also choose to extend WCHR jurisdiction to include human rights instruments outside the status of treaty law – such as the Norms that have express provisions on TNC duties. While an envisaged WCHR depends on the voluntary ratification by TNCs, TNCs also possess a positive attitude to human rights concerns that would make the first step of ratification a likely prospect.

While TNCs are broadly criticised for human rights issues, it is important to note that TNCs also positively contribute to human rights causes. This is demonstrated by TNCs sponsoring international aid objectives in providing funding, medicines and infrastructures to remote regions outside the budgetary constraints of states and international institutions. Hence, TNCs also have positive interests in upholding human rights standards.


Conclusion

The primary gain in implementing a WCHR is its capability to solve contemporary IHRL issues related to the evolving roles of states and TNCs. The transition of TNCs to rival the international influence of states should be welcomed as testing the durability of international law in its capacity to adapt to contemporary challenges.

The ratification of a Statute of the WCHR is no doubt an ambitious proposal – coupled with the unprecedented intention to command jurisdiction over TNCs and may be dismissed by some as visionary but unrealistic. However, in light of domestic legal avenue deficiencies and the inadequacies of TNC self-regulation, proponents of traditional state-dominated international law must re-evaluate their positions in light of contemporary developments harmful to human rights discourses.

The focus on the status debate of TNCs comparative to states must shift from whether states will be relegated to less influential roles, to consider whether the victims of human rights abuses would benefit from a recalibration of TNC liabilities. deter future abuses from occurring.

Sherwood Du is in his 4th ye a r s t u d y i n g B A / L L B. H e s e r ve d w i t h t h e A N U I L S Publ icat ions Team in 2013 and hopes to pursue a career in diplomacy after his studies.

The next step is to consolidate the administrative structure of the WCHR to ensure effective remedies for human rights violations to deter future abuses from occurring.

Notes

Journal Article/Reports

Chirwra, Danwood Mzikegne, ‘The Long March to Binding Obligations of Transnational Corporations In International Human Rights Law’ (2006) 22 South African Journal on Human Rights 76

Dodge, William S., ‘Corporate Liability Under Customary International Law’ (2012) 43 George-town Journal of International Law 1045

Henkin, Lois, ‘U.S. Ratification of Human Rights Conventions: The Ghost of Senator Brickner’ (1995) 89(2) The American Journal of Interna-tional Law 341

Hillemanns, Carolin F., ‘UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights’ (2003) 4(10) German Law Journal 1065

Macklem, Patrick, ‘Corporate Accountability un-der International Law: The Misguided Quest for

Macklem, Patrick, ‘Corporate Accountability un-der International Law: The Misguided Quest for Universal Jurisdiction’ (2004) 7(4) International Law FORUM du droit international 281

Miretski, Pini Pavel, ‘The UN Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights: A Requiem’ (2012) 17(1) Deakin Law Review 5

Nowak, Manfred ‘The Need for a World Court of Human Rights’ (2007) 7(1) Human Rights Law Review 251 Rauxloh, Regina, E., ‘A Call For The End of Impunity For Multinational Corporations’ (2007) 14 Texas Wesleyan Law Review 297

Ratner, Stephen R., ‘Corporations and human rights: a theory of legal responsibility’ (2001) 111(3) The Yale Law Journal 443

Rodley, Nigel S., ‘Human Rights and Humanitar-ian Intervention: The Case Law of the World Court’ (1989) 38(2) The International and Com-parative Law Quarterly 321

Scheinin, Martin, ‘Towards a World Court of Hu-man Rights’ (Research report within the frame-work of the Swiss Initiative to commemorate the 60th anniversary of the Universal Declaration of Human Rights, European University Institute, Florence, Italy, 30 April 2009)

South Africa, Truth and Reconciliation Commis-sion, Final Report (1998) < http://www.justice.gov.za/trc/report/finalreport/Volume 4.pdf>

Trechsel, Stefan, ‘A World Court of Human Rights?’ (2004) 1(1) Northwestern Journal of International Human Rights 261

Cases

Doe v Unocal, 963 F. 880 (C.D. Cal. 1997)

Kiobel v Royal Dutch Petroleum Co. 133 S.Ct. 1659 (2013)

Wiwa v Royal Dutch Petroleum, 226 F.3.d 88 (2d Cir, 2000)

Legislation

Alien Tort Claims Act 28 U.S.C. § 1350

Treaties/International Declarations

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res 60/147, UN GAOR, 3rd Comm, 60th sess, 64th plen mtg, Agenda Item 71(a), UN Doc A/RES/60/147 (21 March 2006)

Charter of the United Nations

Convention against Torture and Other Cruel, Inhumane or Degrading treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 November 1976)

Resolution on EU Standards for European En-terprises Operating in Developing Countries: Towards a European Code of Conduct [1999] OJ C 104 E/180

Responsibility of States for Internationally Wrong-ful Acts, GA Res 56/83, UN GAOR, 56th sess, 85th plen mtg, Supp No 49, UN Doc A/RES/56/83 (28 January 2002, adopted 12 December 2001)

SC Res 1306, UN SCOR, 55th sess, 4168th mtg, UN Doc S/RES/1306 (5 July 2000) (‘Resolution 1306’)

Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (‘Norms’), UN ESCOR, 55th sess, 22nd mtg, Agenda Item 4, UN Doc E/CN.4/Sub.2/2003/12/Rev.2 (13 August 2003) Other

Australian Permanent Mission to the UN to OHCHR, 8 September 2004, ‘Comments by Australia in Respect of the Report Requested from the Office of the High Commissioner for Human Rights by the Commission on Human Rights in its Decision 2004/116 of 20 April 2004 on Existing Initiatives and Standards Relating to the Respon-sibility of Transnational Corporations and Related Business Enterprises With Regard to Human Rights’ <http://www2.ohchr.org/english/issues/globalization/business/docs/australia.pdf>

Directorate for Financial, Fiscal and Enterprise Affairs, ‘Codes of Corporate Conduct: Expanded Review of their Contents’ (Working Paper No 6, OECD, May 2001) < http://www.oecd.org/industry/inv/corporater-esponsibility/1922656.pdf>

UN Secretary-General Kofi Annan, ‘In Address to World Economic Forum, Globalization Must Work For All’ (Speech delivered at the World Economic Forum, Davos, Switzerland, 28 January 2001) < http://www.un.org/News/dh/latest/ad-dress_2001.htm>

Rangel Johanna, and Marcela Rojo, ‘Coca-cola and the Global Fund Announce Partnership to Help Bring Critical Medicines to Remote Regions’ (Media Release, 22 September 2012) 1 < http://www.theglobalfund.org/en/mediacenter/newsre-leases/2012-09-25_Coca-cola_and_the_Global_Fund_Announce_Partnership_to_Help_Bring_Critical_Medicines_to_Remote_Regions/>

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In September last year I started an internship at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, Netherlands. When I started I did not know anything about the former Yugoslavia, which consisted of the countries today known as Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. I probably could not have placed those countries on a map. I also did not know anything about international criminal law (ICL) (unfortunately the ANU College of Law does not offer any courses on this subject). I was assigned to the prosecution team working on

the trial of Goran Hadžić, whose last name I could not even pronounce. I was guaranteed to learn something over the next four months.

The ICTY is the first international criminal tribunal (leaving aside the Nuremberg and Tokyo tribunals set up following World War II). It was established in 1993 by UN Security Council resolution 827 to investigate and prosecute those responsible for the atrocities that occurred during the break up of the former Yugoslavia. To summarise half a century of history in a single paragraph: after World War II Yugoslavia emerged as a non-aligned

International Criminal Law is the New International LawLaura Stockdale

The site of the International Criminal Tribunal for the Former Yugoslavia at the Hague. Image credit: ICTY


socialist federation under the rule of a benevolent dictator Tito. After Tito’s death in 1980, nationalist movements gained momentum with different ethnic groups seeking independence from the Serbian-dominated federalist state. When Croatia declared independence in 1991 a war broke out between Croat and Serb forces and lasted for 4 years. The Bosnian declaration of independence in 1992 had the same result. During these wars both sides committed gross violations of international humanitarian law. As a prosecutor working at the ICTY, or at the other courts and tribunals, there are two things that you must prove. Firstly, that one of the following crimes occurred: a war crime, a crime against humanity, genocide or the crime of aggression. Secondly, you must prove that the defendant is individually responsible for the crime.

The aim of international criminal courts and tribunals is often to prosecute the military or political figures that orchestrated or oversaw atrocities, rather than the direct perpetrators themselves. Convicting those at the top of the chain will have, it is hoped, a deterrent effect and thereby promote global peace and security. But proving the connection between a former President, like my defendant Hadžić, and crimes committed by underlings is often a tall order.

For those of you interested in doing an internship at the ICTY you may be out of luck as it is due to close at the end of 2015. However, the number of international criminal courts and tribunals have multiplied in the last two decades and so there are many other opportunities, most of them in The Hague.

Try the International Criminal Court: the first permanent international criminal court, which was established by treaty. Or the Special Tribunal for Lebanon: the first tribunal to try a terrorism offence at the international level, despite the fact that the defendant is nowhere to be found since trial in absentia is a peculiar feature of Lebanese law (the tribunal is a hybrid of international and Lebanese law). Or try the Extraordinary Chambers in the Courts of Cambodia: a court prosecuting the leaders of the Khmer Rouge regime and constantly mired in political turmoil.

Indeed, international criminal law is prone to controversy. Not so much because it challenges the doctrine of state sovereignty but because it is entwined with transitional justice.

‘Convicting those at the top of the chain will have, it is hoped, a deterrent effect and thereby

promote global peace and security’


During its 21 year history, the ICTY has been criticised for bias against Serbs, as the majority of its indictees have been Serbian; for lengthy and costly trials; for light sentencing given the gravity of the crimes committed; and for hindering rather than helping reconciliation. Nearly all of these criticisms have also been levied against the other international criminal courts and tribunals.

In my humble opinion, while it may be too soon to evaluate the contribution that the ICTY has made to peace in the former Yugoslavia, it has, without a doubt, firmly established ICL as a body of international law. I would highly recommend an internship at one of the international criminal courts or

L a u r a S t o c k d a l e i s a n A N U l a w g r a d u a t e a n d former intern at the IC T Y.

tribunals. Not only will you be given an security badge with the United Nations blue, but you will also gain invaluable experience in criminal law (I helped prepare cross-examination of witnesses, drafted motions and reviewed documents) and meet seasoned lawyers, cutting-edge human rights academics and former soldiers.

You can then decide for yourself the successes and failings of international criminal law; whether or not it achieves justice and furthers peace.

The ICTY sitting on January 28, 2014 . Image credit: EPA/BGNES


Reflections on the Annual Lionel Murphy LectureElisabeth Storor

Since the inaugural Lionel Murphy lecture delivered in 1987 by The Hon Justice Michael Kirby AC CMG, a myriad of figures legendary amongst the Australian political and legal community have spoken each year on timely issues including mental health, child protection and Indigenous reconciliation. Throughout 2014, heightened global fears of terrorist attacks lead to increased attention on the laws that regulate anti-terrorism. Thus it was appropriate that for the 2014 annual Lionel Murphy lecture, the topic Professor George Williams AO chose was Australia’s newly introduced terrorism legislation.

Williams is the Anthony Mason Professor at the University of New South Wales whose impressive career as a barrister has included High Court appearances in cases concerning freedom of speech, freedom from racial discrimination and the rule of law.

An expert on anti-terror legislation, he is currently engaged in a project on the subject, and how it may impact upon democracy. His address, delivered at ANU’s China in the World Centre on October 22, reflected his current project as he discussed the effects of Australia’s newly tightened terrorism laws on

George Williams presenting at the Annual Lionel Murhpy Lecture at ANU’s Chilna in the World Centre on October 22, 2014. Image credt: ANU College of Law

However, given the global climate of uncertainty caused by conflict in Syria and the rise of IS across the Middle East, and fear over growing financial networks within immigrant communities in Australia with links to global terrorist groups, ASIO updated the alert system’s level to ‘high’, suggesting that an attack is ‘likely’. Resultantly, the need to reconsider our anti-terror laws has been undoubtedly legitimised.

Williams argues that given the novel nature of the terrorist threats now facing Australia and the rest of the world, those who had opposed anti-terror laws on the grounds that ordinary criminal law was suffice to prosecute terrorists must now concede that new anti-terror laws are necessary in order to target terrorist cells and the financing of terrorist activity.

However, while Williams agrees that there is a case for introducing new anti-terror laws, he also expresses unease over their parliamentary implementation. Referring again to the history of anti-terror law legislation, he mentions how, until now, terrorism legislation has generally been passed very quickly and unassumingly through parliament. What was alarming about the laws that went through in 2014

democracy, a relationship he labels ‘of great contemporary importance’.

Williams’ speech was centred on the restrictions on civil liberties created by anti-terror laws, and the fundamental question raised by such restrictions: are we as citizens blithe to give up our freedom in the name of security? Williams traced the history of anti-terror laws, noting that conservative governments have overwhelmingly been the enactors of such legislation. He pointed to the example of the Howard government, which responded to the terror panic caused by the 9/11 attacks by introducing 48 pieces of federal anti-terror legislation between 2001 and 2007, averaging a new statute every six and a half weeks. Overall, 62 pieces have been enacted since 2001, evidencing how concentrated law-making was under the Liberal cabinet from 9/11 until they lost power in 2007.

Despite the flurry of anti-terror laws following 9/11, since 2003 till early 2014, ASIO’s terror alert system was at a ‘medium’ level, meaning that a terrorist attack ‘could occur’. In this context, Williams noted, the rapid rate of law-making, more than in both the United Kingdom and the United States, led many observers to diagnose of state of ‘hyper-legislation’.


was that they contained far more restrictive measures than anything previously enacted. On this trend, Williams says there is ‘great danger that we will undermine democratic values that we are trying to protect from terrorists’.

One of Williams’ most alarming points from his speech was his warning that the new laws are ‘fundamentally changing how we see the law, making inroads into human rights, creating new precedents and re-writing balance between liberty and security’. As the world continues to face unprecedented acts of terrorism, such as the recent attack on the Charlie Hebdo offices in Paris and the Martin

Place siege in Sydney, the case for stricter terror laws has been undeniably strengthened. What remains to be determined is whether the sense of security provided by these new measures is worth the infringement on our fundamental human rights.

Mourners converge in Sydney’s Martin Place following the December 2014 terrorist attack. Image credt: Australian Broadcasting Corporation


El isabeth Storor is in her second year of an LLB/BA specia l is ing in Arabic and Human Rights.


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The Right to Ridicule: looking into the Charlie Hebdo Attacks

The tragic attack on Charlie Hebdo on January 7 sparked global outrage and dialogue over the right to free speech. This was evident from the emergence of the #jesuischarlie hashtag on social media which by January 9 had been tagged over 5 million times on twitter. Beyond the tragedy and grief in Paris, however, spectators have commentated on the aggravating nature of the cartoons, which were inflammatory enough to incite the Kouachi brothers to brutally murder 11 civilians. The siege came as protests have been intensifying around Western Europe against what is seen as a growing trend

of Islamification. In Germany, which is generally regarded as immigrant-friendly, there continues to be the largest number of anti-Islam rallies in Europe. On banners at the protests, citizens have been seen equating Islamification with Nazism.

The support for the mainstream Muslim community in France being constantly reassured by Francois Holland and other world leaders and the simultaneous anti-Muslim sentiment felt on the ground reveals Europe’s complicated relationship with Islam. Religious questions aside, the Charlie Hebdo attack was a reminder of the importance of free speech in civil society. This was evident

World news Jessica Wat

Journalists hold placard reading “I am Charlie” as they hold a minute of silence at the redaction of French news agency Agence France Presse. Image credit: Betrand Guay/AFP/Getty Images


in the reaction to the death of Muslim policeman, Ahmed Merabet, who was killed in the attack defending the laws that allow satirists to mock his religion. A moving example paying tribute to Merabet came from Lebanese political activist, Dyab Abou Jahjah, who echoed Voltaire in tweeting; ‘I am not Charlie. I am Ahmed the dead cop. Charlie ridiculed my faith and culture and I died defending his right to do so’.

Boko Haram strikes again

Unlike the Charlie Hebdo attacks, which prompted much outcry and demonstrations of solidarity throughout the world, Nigeria’s massacre of 2000 people by Boko Haram went comparatively overlooked despite the two events occurring over less than three days. This inconsistency has sparked debate about whether human lives have the same value everywhere.

Many commentators have remarked on the difference the international arena places on lives in the first world to those in the third, with politician Frank Heinrich stating that, ‘We make so much of one incident – 20 people killed in Paris – but we do not view the deaths of 2,000 people in Nigeria with the same importance.’ However, in a speech commemorating the victims of the Charlie Hebdo killings, the

president of the European Parliament, Martin Schulz, did make reference to Nigeria, tying the two incidents together in order to empower people and states to fight back against terrorism. UN Human Rights Commissioner Prince Said Raad al-Hussein also condemned the attacks, calling them “unscrupulous attacks against civilians” that violated international law.

ICC: Second Investigation into Crimes Against

Humanity in the Central African Republic

Out of the public spotlight, the impoverished Central African Republic has been experiencing endless cycles of violence for up to thirteen years due to political instability caused by numerous coup d’etats. As of 2013, the conflict has shifted into a sectarian nature, with attacks becoming focused on non-Muslim populations. This has triggered the development of armed non-Muslim groups known as anti-balska. Violence between these groups has now escalated and spiralled out of control.

In their investigation, the ICC will look predominantly at this Muslim-based tension and the war crimes or genocide that may have been committed. The ICC must bring those responsible to justice, and re-establish the rule law and


order in a country that has been without it for so long. Nevertheless, it is clear the Central African Republic cannot just wait for the ICC’s investigation to take place, and Interim President Samba-Panza has a lot to work on to rebuild her divided country.

Palestine joins the International Criminal Court

After having attempted to secure a deadline with the UN Security Council for Israel to end its occupation of territories, Palestine’s president, Mahmoud Abbas, has applied to join the International Criminal Court in The Hague. Through the ICC, Palestinians hope to seek prosecution for war crimes of any Israeli accused of occupying Palestinian territory.

However, officials have noted that an application would end talks to establish

an independent Palestinian state – a heavy price for the Palestinians, yet, considering no progress has been made in reconciling Israeli and Palestinian ties, the Abbas government has chosen to pursue this route as a route of alternative progress for their people. UN Secretary General,

Ban Ki-moon said Palestine would join the ICC on April 1 this year. The question that remains is whether joining the ICC will indeed further Palestine’s cause.


Jessica Wat is a second y e a r L a w a n d Po l i t i c s , Philosophy and Economics student. She is particularly interested in human rights and social development.

Mahmoud Abbas signs international agreements, including the ICC’s Treaty of Rome, on Decem-ber 31, 2014.

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