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The Australian National University

Current Issue: Volume 33

Kirby Lecture in International Law — 2015

Human Rights with a Vengeance: One Hundred Years of Retributive Humanitarianism

GERRY SIMPSON

Articles

Judicial Lawmaking: Understanding Articles 38(1)(d) and 59 of the Statute of the International Court of Justice

AMOS ENABULELE

This article considers the relevance of the decisions of the International Court of Justice (ICJ) to the development of international law. It contributes to the enduring debate over the place of judicial decisions in the sources of international law in view of the provisions of articles 38(1)(d) and 59 of the Statute of the Court. In addition to describing judicial decisions are 'subsidiary means', article 38(1)(d) subjects it to article 59, which provides that decisions are binding only upon the parties to the case. This drafting misadventure has generated more controversy than the drafters could ever have anticipated to the extent that article 59 is equated with the prohibition of the rule of stare decisis, thereby providing justification for the view that judicial decisions are not a source of international law. The core argument of the article is that judicial decisions are a source of international law in practice and even on the wording of article 38(1), albeit subsidiary in hierarchy to the sources listed in article 38(1)(a)-(c). This conclusion is based on a robust analysis of articles 38(a) and 59 as well as the practice they have accumulated over the years.

The International Law Framework Underpinning the Australian Government's Response to the Downing of MH17

STEPHANIE IERINO, JOHN REID AND ANNE SHEEHAN

In the days following the downing of MH17 on 17 July 2014, Australian Government lawyers collaborated with colleagues from partner nations to establish the international legal framework necessary to enable a rapid and coordinated international response to this tragedy. This framework, comprising seven separate international instruments, enabled the deployment of Australian personnel to assist in securing the crash site, and the recovery, identification and repatriation of the victims to their grieving families. It also supported the conduct of the aircraft accident investigation and continues to enable the work of the criminal investigation and efforts to ensure accountability of those responsible. This paper details the purpose and effect of each of these instruments and the key principles of international law that underpin them.

Quality Control for New Rights in International Human Rights Law: A Case Study of the Right to a Good Environment

BRIDGET LEWIS

The significant moral and normative force which comes with asserting that a particular social claim is a 'human right' has led to a variety of interest groups and organisations employing human rights rhetoric in advocating for social, legal or political change. While this technique has proven successful for mobilising public support, it can lead to confusion regarding the status of particular human rights in international law, and it could undermine the status of human rights as a whole. While States are free to develop and expand the law into new areas, this paper argues that caution must be exercised in the expansion and development of human rights law. In order to illustrate the issues surrounding the uncritical proliferation of human rights, this paper takes as a case study the right to a good environment. The paper identifies various considerations which are relevant to an assessment of whether the right should be recognised under international law. It first looks to human rights theory to identify the sorts of claims which are appropriate for recognition as human rights. It then draws on a range of normative, practical and political consierations, which are relevant to the question of whether the proposed right could be effectively defined, implemented and enforced. After examining the right to a good environment against these criteria, the paper concludes that recognition of the right cannot be justified and that international attention should instead focus on improving the application of existing rights to environmental issues.

The Concept of 'Place of Safety': Yet Another Self-Contained Maritime Rule of a Sustainable Solution to the Ever Controversial Question of Where to Disembark Migrants Rescued at Sea?

MARTIN RATCOVICH

International law requires that everyone rescued at sea shall be disembarked and delivered to a 'place of safety'. However, neither the treaties that establish this requirement nor any other treaty defined what is meant by 'place of safety'. When refugees and migrants are rescued at sea considerations of inernational human rights law and international refugee law as well as of international law against transactional organised crime are of principal concern. This article examines the concept of 'place of safety' and argues that it needs to be interpreted in the wider context of international law, so that other relevant and applicable rules of international law are taken into account. The article provides an exploratory discussion of the interpretation of the concept of 'place of safety', seen particularly against the background that many of those rescued at se are refugees and migrants. It also comprises discussions of the duty to rescue those in distress at sea, the basic rules on interpretation of treaties and the legal framework for rescue of migrants at sea. The analysis is illustrated by references to Australian legislation, state practice and case law.

Citizen Deleted

STEPHEN TULLY

The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) (the Act) contemplates the revocation by conduct of Australian citizenship in certain circumstances. This article considers the controversial development by reference to four branches of international law. International law on nationality specifies certain preconditions before individuals can be lawfully deprived of their nationality. International law for preventing statelessness indicates that individuals cannot be rendered stateless. Under international human rights law, individuals cannot be arbitrarily deprived of or discrminated against in the enjoyment of their human right to a nationality. Any deprivation of nationality must first satisfy certain procedural requirements and substantive benchmarks. Emergent international law concerning the treatment of aliens similarly emphasizes the importance of procedural safeguards on revocation and expulsion decisions. The national law of several States is also considered. This article contends that any legislation which contemplates the revocation of Australian citizenship must demonstrate unequivocal compliance with applicable international legal standards. It concludes that, although Australian citizens can be permissibly deprived of their nationality under international law, the Act runs counter to international attempts for reducing statelessness, is not wholly compatible with human rights standards, and overlooks recent developments on the appropriate treatment of aliens.

Australian Cases before Australian Courts and Tribunals Involving Questions of Public International Law 2014

ALISON PERT, MUSOOD DARWISH, ELLEN MOORE, BOWEN FOX AND NICOLA ALROE

Australian Cases before International Courts and Tribunals Involving Questions of Public International Law

ALISON PERT, MUSOOD DARWISH, ELLEN MOORE AND BOWEN FOX

Australian Legislation Concerning Matters of International Law 2014

ANNA GARSIA, HOLLY MATLEY, SIMON BRINSMEAD, SARAH CASTLES, SAM GOOD, GEORGIA HINDS, PETA HUGHES, ALICIA LEWIS, WILLIAM MORRIS, JEREMY SHELLEY, ROSIE SOLOMON, ASHLEE UREN AND SARAH WARDELL

Australian Practice in International Law 2014

COMPILED AND EDITED BY CHRISTINA HEY-NGUYEN

Survey of Developments in Australian Private International Law 2014-2015

ANDREW LU, JEREMY SHELLEY, THINESH THILAINADARAJAH AND ROB LEONARD

Australian Treaty Action 2014

Table of Cases

Table of Statutes

Table of International Instruments

Updated: 15 March 2017/ Responsible Officer:  Australian Year Book of International Law Director / Page Contact:  AYBIL Web Publisher