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(2019) 4 Perth International Law Journal a PERTH INTERNATIONAL LAW JOURNAL (2019) 4 Perth International Law Journal a PERTH INTERNATIONAL LAW JOURNAL ACADEMIC JOURNAL OF THE UNIVERSITY OF WESTERN AUSTRALIA INTERNATIONAL LAW SOCIETY VOLUME 4 2019 b (2019) 4 Perth International Law Journal (2019) 4 Perth International Law Journal i PERTH INTERNATIONAL LAW JOURNAL ACADEMIC JOURNAL OF THE UNIVERSITY OF WESTERN AUSTRALIA INTERNATIONAL LAW SOCIETY Co-Editors Delaney Bruce Chelsea Francis Lloyd Hotinski Advisory Board Professor Stephen Smith, Former Minister for Defence and Foreign Affairs Professor Erika Techera Assistant Professor Philipp Kastner Dr Fiona McGaughey Dr Jade Lindley Dr Juan He Dr Dominic Dagbanja Wygene Chong The views and opinions expressed in the articles of this journal do not necessarily reflect the views and opinions of The University of Western Australia International Law Society or the editorial team of the Perth International Law Journal. All views and opinions expressed are solely those of the authors of the articles and all responsibility for the articles lies with them. Cover design by James Earnshaw. Cite Journal as Perth ILJ ISSN 2208-8350 (Print) ISSN 2208-8369 (Online) © UWA International Law Society © The Authors The research published in the journal is open access and reusable under the terms of the Creative Commons CC-BY license. IV (2019) 4 Perth International Law Journal UWA INTERNATIONAL LAW SOCIETY The University of Western Australia International Law Society (formerly the UWA International Law Club) is a UWA Guild affiliated student society for anyone interested in International Law. Founded in 2016, the society aims to promote the field of International Law in the university community through lectures, seminars, panel discussions, round-table discussions, and an annual international law journal. 2019 Executive Committee: President Ian Tan Vice-President Jing Zhi Wong Secretary Chelsea Francis Treasurer Austen Mell (2019) 4 Perth International Law Journal V Editors’ Foreword It is with great delight that we present the Fourth Volume of the Perth International Law Journal. We are immensely grateful to every individual who has enabled this publication to come to fruition. Our thanks particularly extend to each contributor and peer reviewer who aided with this final product. We are further grateful for the advice and oversight of our esteemed Advisory Board; the continued academic support from the UWA Law School is cherished. Our vision is to inspire Australia’s legal minds to ponder matters of international law in the context of the increasingly globalised world. The articles published by this Journal are, therefore, selected on the basis of their contemporary relevance to matters of international law. Comparative law and its intersection with international law, international arbitration, and international environmental law are a few examples of the range of areas that this publication concentrates on. Published in the middle of a global pandemic, it is blatantly evident that we operate in a Brave New Word that is governed by escalating globalisation. Accordingly, the growing incidence of multi-jurisdictional operations and the need for considerations in international law is undeniable. The significance of ‘soft law’, approaches to comparative legal methods, and the impact of international policy on global governance is explored within this volume. We are honoured to have had the privilege of creating this volume. It is our hope that students and seasoned scholars alike are inspired by the subject matter discussed within this Journal. It is our expectation that readers will grow in their appreciation and understanding of the critical role international law has in the context of the contemporary world. Delaney Bruce Chelsea Francis Lloyd Hotinski Co-Editors May 2020 VI (2019) 4 Perth International Law Journal President’s Foreword The Perth International Law Journal was established in 2016 with a focus on providing an accessible forum for university students to contribute to the international legal discourse. Since then, three volumes of the Journal have been published. This fourth volume of the Journal continues that tradition, carrying submissions from university students, academics, and legal practitioners on areas of significance. At the onset of a new international order, Robert H. Jackson – then an Associate Justice of the US Supreme Court – stated in a 1945 speech that: “those who best know the deficiencies of international law are those who also know the diversity and permanence of its accomplishments and its indispensability to a world that plans to live in peace.” For over seven decades since, that rules-based international order has underpinned cooperation, security and trade on a global scale. However, recent times have made the deficiencies and frailties more pronounced as populism and nationalism gain prevalence. Notably, the Covid-19 pandemic has directly challenged the legitimacy and relevance of international law. Jackson’s quote remains apt today. The Perth ILJ will continue to offer a medium for students, alongside members of the academia and legal profession, to offer their thoughts, perspectives and insights in their analysis and dissemination of these developments within international law. I have no doubt that the Journal will continue to be an important source of commentary, discussion, and erudition. I wish to offer my thanks for the continued guidance and support extended to the Journal and the Society by our Advisory Board, our peer-reviewers and the UWA Law School. Jing Zhi Wong also deserves thanks for his continued guidance and support. The Editors of this volume, Delaney Bruce, Chelsea Francis and Lloyd Hotinski, also deserve recognition for their dedication and hard work over many months to bring this volume to publication. Each are highly talented individuals from our UWA community and we can look forward to their many achievements in the future. Ian Tan 2019 President UWA International Law Society May 2020 (2019) 4 Perth International Law Journal VII Errata to Volumes Two and Three ‘The Value of Treaty-Making with Indigenous Peoples in Australia’, by Aparna Jayasekera, Volume 3 (2018), pp 33-57 - ERRATUM In the original publication of this article, there were a number of errors in the headings: (p 45): “E Other Jurisdictions” ---> “B Other Jurisdictions” (p 51): “F Canada“ ---> “B Canada” (p 52): “G New Zealand” ---> “B New Zealand” (p 54): “H Canada” ---> “C Canada” The publisher regrets this error. ‘Malaysia’s Application for Revision of the Pedra Branca Judgment: Case Note on the Question of Admissibility’, by Jing Zhi Wong, Volume 2 (2017), pp 62-78 - ERRATUM In the original publication of this article, there was a spelling mistake: (p 72): “ICJ Stature” ---> “ICJ Statute” The publisher regrets this error. VIII (2019) 4 Perth International Law Journal Contents Preliminary Matter Editors’ Foreword ……………………………………………………………….. vi President’s Foreword ……………………………………………………………..vii Errata to Volumes Two and Three …………………………………………..........viii Articles Platforms, Plastics and Parasites: International Law Responses to Contemporary Marine Pollution Issues Erika Techera…………………………………………………………………..…...1 Direct Participation in Hostilities: Between A Rock and a Hard Place Alessandro Silvestri………………………………………………………….…....13 Law or Not: Considering the Value of International Soft Law in Addressing Environmental Problems Alexander Anile…………………………………………………………….…......21 Shaky Foundations: ‘Killer Robots’ and The Martens Clause Marcus Hickleton……………………………………………………….…....…....31 The Exercise of Prerogative Powers and their Political Outcome Robert E Lindsay………………………………………………………….……....63 Comparative Legal Methodology and Its Relation to the Identification of Customary International Law Jing Zhi Wong……………………………………………………………….….....81 Judicialization of the Arbitral Process Bruno Zeller………………………………………………………………….…...111 (2019) 4 Perth International Law Journal IX An Overview and Consideration of De-Radicalisation In Malaysia Ian Tan………………………………………………………………………….....119 Geographical Indications Under the WTO/TRIPS Agreement Carla Sangiovanni………………………………………………………………...141 A Spying Scandal and a Border Dispute: Timor-Leste and Australia Samara Cassar………………………………………………………………….....155 Proceedings of the Society Proceedings of the UWA International Law Society……………………..............173 X (2019) 4 Perth International Law Journal Platforms, Plastics and Parasites PLATFORMS, PLASTICS AND PARASITES: INTERNATIONAL LAW RESPONSES TO CONTEMPORARY MARINE POLLUTION ISSUES ERIKA TECHERA* ABSTRACT Protecting ocean health is critical to ensure food security, marine conservation and sustainable use of our oceans, as well as the achievement of broader blue economy goals. Despite significant global attention, marine debris, waste and pollution continue to cause concern and cumulatively impact on marine and human health. Legal frameworks have been developed over the last half a century focused largely on preventing deliberate dumping of waste, or accidental environmental damage caused by marine pollution from ships. Several of these regimes were created when much less was known about the ocean and what activities impacted upon it, as well as the techniques and tools to prevent damage. It is therefore timely to re-visit the legal frameworks and explore whether they are able to address contemporary challenges. This paper will outline the current state of the international law drawing upon three case studies: in situ decommissioning of oil rigs and their disposal at sea, the cumulative
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