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The Australian National University

Current Issue: Volume 34

Kirby Lecture in International Law - 2016

Australia's Increasing Enmeshment in International Law Dispute Resolution: Implications for Sovereignty

JUSTIN GLEESON SC

South China Sea Agora

Islands and Rocks after the South China Sea Arbitration

NATALIE KLEIN

The South China Sea arbitration produced a ground-breaking award for its interpretation of Article 121 of the UN Convention on the Law of the Sea concerning the legal definition of islands and rocks. This Agora contribution examines the Tribunal's careful analysis of the meaning of this Article and its application to different islands and rocks located in the South China Sea. The policy context for the Tribunal's decision is noted and consideration is accorded to the wider application of the Tribunal's reasoning beyond the South China Sea. Apart from China, the claims of states such as Australia, Japan and the United States may also be affected, although the extent of this impact remains to be seen.

The South China Sea Award, Artificial Islands and Territory

IMOGEN SAUNDERS

In the context of accelerating artificial island building in the South China Sea, the legal status of such entities remains unclear. While artificial islands are clearly not true islands in the sense of UNCLOS, what are they in international law? Could an artificial island constitute sovereign territory? The South China Sea Arbitration provided the first opportunity for an intenrational court or tribunal to consider the status of artificial islands at international law. This article sets out the legal background to the UNCLOS Arbitral Tribunal's award in this area, tracing the discussion of the territorial status of low-tide elevations by the International Court of Justice through to the tribunal's consideration of the reclamation activities carried out by China at Mischief Reef. Ultimately it is argued that by maintaining a legal fiction of the natural state of Mischief Reef as a low-tide elevation for the purposes of appropriation (regardless of construction activity on it), the arbitral tribunal missed an opportunity to advance the understanding of the territorial status of artificial islands in international law.

The Collateral Damage from China's 'Great Wall of Sand': The Environmental Dimensions of the South China Sea Case

TIM STEPHENS

This contribution to the Australian Year Book of International Law Agora on the South China Sea case assesses the decision's treatment of fisheries and environmental issues. These matters might appear as second or third order concerns given the sovereignty and security issues also at stake in thsi region. However, the South China Sea isone of the world's most ecologically diverse marine bioregions and sustains an array of vulnerable coral beef systems and highly valauble fisheries. Contrary to popular perceptions, access to these fisheries is more central to the disputes between the littoral states of the region than control over oil and gas resources. The arbitral Tribunal's merits award clearly recognises this, and addresses both living resource and environmental protection issues in considerable length and detail. These aspects of the award could serve as a catalyst for regional cooperation to protect this ecologically unique and economically productive marine environment,

Maritime Law Enforcement and the Aggravation of the South China Sea Dispute: Implications for Australia

DAVID LETTS, ROB MCLAUGHLIN AND HITOSHI NASU

This contribution to the Agora assesses a number of the key legal issues arising from the South China Sea (Award) from the perspective of maritime law enforcement activities. Initially, the paper summarises relevant aspects of the Award, before focussing on two distinct issues raised by the Philippines in the arbitration: a series of navigational incidents in the vicinity of Scarborough Shoal in 2012 and the routine presence of Chinese maritime enforcement vessels in the vicinity of Second Thomas Shoal. The paper analyses the ruling by the Arbital Tribunal in relation to each of these issues and then postulates implications that may arise for Australia. Concluding remarks suggest that States which have an interest in the region should not sit idle as to do so would likely see existing legal rights diminish.

Legal Implications of the South China Sea Award for Maritime Southeast Asia

TARA DAVENPORT

The South China Sea, the largest sea in the Southeast Asia, is also the stage for one of the most complex disputes in contemporary times. The South China Sea disputes are viewed as a major flashpoint in post-Cold War Southeast Asia and have been a perennial source of tension in the region, and have also hindered the effective exploitation of resources in the South China Sea. The South China Sea Arbitration between the Philippines and China, which many consider a resounding victory for the Philippines, has significant implications for Southeast Asia, not only for the Philippines but also for the other Southeast Asian Claimants, as well as the non-Claimant Southeast Asian States, particularly those which border the South China Sea. To this end, this Article will examine these implications for the Southeast Asian Claimants with regard to (1) sovereignty, rights and jurisdiction over features; and (2) maritime entitlements in the South China Sea. The Article will then discuss the implications of the Merits Award for the coastal States bordering the South China Sea.

Articles

State Responsibility and Genocidal Intent: A Three Test Approach

ROBIN M SMITH

Establishing genocidal intent is vital in determining whether genocide has been committed. However, ascribing intent, and more particularly the specific intent required for genocide, to an abstract entity such as a state is fraught with difficulty. This article seeks to identify the approach by which genocidal intent will be ascribed to a state. State responsibility for genocide has been considered on three occasions. In 2005, the International Commission of Inquiry on Darfur examined whether or not the Government of Sudan had perpetrated genocide. The International Court of Justice had handed down two decisions on the issue, the Bosnian Genocide Case in 2007 and the Croatian Genocide Case in 2015. By consolidating the three decisions, this article identifies an approach for ascribing genocidal intent to the State using three alternate tests: intent established through a 'concerted plan', intent inferred from a 'consistency pattern of conduct', and intent ascribed pursuant to the Articles on State Responsibility. The article is divided into three parts. The first part considers the ascribing of intention to a state generally. The second section turns to the specific issue of ascribing genocidal intent to the state and examines the two ICJ decisions and the Darfur Commission Report in detail. The final section then seeks to develop the decision of a concerted plan, how such a plan is to be ascribed to the state and the relationship between the test establishing intent through a concerted plan, and the test inferring intent from a consistent pattern of conduct.

The 1954 Hague Convention: Aboriginal and Torres Strait Islander Sacred Sites as Cultural Property

THOMAS WOODEN

It is widely assumed that Australian Aboriginal and Torres Strait Islander sacred sites are not cultural property for the purposes of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, commonly known as the 1954 Hague Convention. Challenging this assumption, this article breaks down and analyses the Convention's lengthy definition of 'cultural property' to determine whether Aboriginal and Torres Strait Islander sacred sites can be considered cultural property. Upon the conclusion of this interpretation, it is determined that such sacred sites should be afforded protection as cultural property under the 1954 Hague Convention, This article is the first of its kind to analyse whether Indigenous Australian sacred sites are cultural property for the purposes of the 1954 Hague Convention. It is important not only for Australia, but for all States with indigenous people, as it provides a framework for determining whether indigenous sacred sites can be considered cultural property under the 1954 Hague Convention. If States adopt and acknowledge this article's interpretation of the 1954 Hague Convention and its finding that Aboriginal and Torres Straight Islander sacred sites are cultural property, future armed conflicts may be markedly altered due to increased obligations to protect this form of cultural property.

The Development of Australia's International Legal Personality

ALISON PERT

This article considers the concepts of statehood, sovereignty, independence and international legal personality as they applied to Australia in the early years after federation in 1901. It outlines the reasons for, and the process of, federation, and charts the subsequent uneven growth in autonomy in matters of foreign rlations granted by the United Kingdom. One of the clearest manifestations of such autonomy is the power to enter into treaties, and the development of this power is therfore described in some detail. The precise international legal status of Australia and the other British Dominions in the early part of the 20th century was a mystery to most legal commentators; this uncertainty was compounded by the rapidity of constitutional change within the Empire, particularly in the 1920s, and by Australia's preferance for Imperial unity over independence. For these reasons, few writers have suggested when, specifically, Australia acquired international legal personality. This article argues that, since international legal personality is a flexible rather than absolute concept, the relevant inquiry is not as to when Australia gained full international legal personality, tantamount to independent, but rather than it acquired a significant degree of international legal personality to enter into relations with other states, and generally to conuct itself on the international plane, had it chosen to do so. It concludes that this occurred in 1923.

Book Reviews: Edited by Sarah McCosker

Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie

MAURIZIO RAGAZZI (ED) (CATHERINE DRUMMOND)

The Oxford Handbook of International Climate Change Law

CINNAMON P CARLANE, KEVIN R GRAY AND RICHARD G TARASOFSKY (EDS) (MEGAN WATSON)

A Practitioner's Guide to Maritime Boundary Delimitation

STEPHEN FIETTA AND ROBIN CLEVERLY (ROBIN FROST)

Cases before Australian Courts and Tribunals Concerning Questions of Public International Law 2015

ALISON PERT, STEPHANIE ABI-HANNA AND CASSANDRA SMITH

Cases before International Courts and Tribunals Concerning Questions of Public International Law Involving Australia 2015

ALISON PERT, STEPHANIE ABI-HANNA AND CASSANDRA SMITH

Australian Legislation Concenring Matters of International Law 2015

ALICIA LEWIS, PHILLIP NG, LAUREN BURKE, THEA CHESTERFIELD, SAM GOOD, ESTHER HARVEY, GEORGIA HINDS, PETA HUGHES, ALEXANDRA NORRIS, JESSICA RUSK, SEPHORA SULTANA, ASHLEE UREN AND MONIQUE VERSACE

Australian Practice in International Law 2015

COMPILED AND EDITED BY JENNY SAMIEC AND SKYE BALE

Survey of Developments in Australian Private International Law 2015-2016

ANDREW LU, JEREMY SHELLEY, THINESH THILAINADARAJAH AND ROB LEONARD

Australian Treaty Action 2014

Table of Cases

Table of Statutes

Table of International Instruments

Updated: 23 May 2017/ Responsible Officer:  Australian Year Book of International Law Director / Page Contact:  AYBIL Web Publisher