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Academic Journal of the University of Western Aus- Tralia International Law Clu B Volume 1 2016 PERTH INTERNATIONAL LAW JOURNAL ACADEMIC JOURNAL OF THE UNIVERSITY OF WESTERN AUS- TRALIA INTERNATIONAL LAW CLU B VOLUME 1 2016 i PERTH INTERNATIONAL LAW JOURNAL ACADEMIC JOURNAL OF THE UNIVERSITY OF WESTERN AUSTRALIA INTERNATIONAL LAW CLUB Editor Isabella Bogunovich Sub-editors Quynh Trang McGrath Swati Gupta Layout and Design Natalie Thompson The views and opinions expressed in the articles of this journal do not necessarily refl ect the views and opinions of The University of Western Australia International Law Club, or the editorial team of the Perth Intern ational 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. Printed by Uniprint ii Foreword FOREWORD I am very pleased as a UWA Law School graduate, a once Public International Law tutor at the UWA Law School and now a Professor of International Law at the Law School to be asked to write the foreword for the UWA International Law Club Journal, the ‘Perth International Law Journal’. The opportunities for Public International Law students in Perth have increased immeasurably over the decades since I was a UWA stu- dent. Indeed, these opportunities have intensifi ed over recent years. A UWA Law School focus has seen an infl ux of Public International Lawyers from a variety of different ju- risdictions and continents - Africa, Europe, and North America included. The creation of the Perth USAsia Centre and its proximity to and close collaboration with the Law School has added to an environment of Public International Law and International Relations discourse around the Law School and the University itself. And the appointment of former Australian Ambassador to the United States, Kim Beazley, as a Law School Honorary Fellow has brought an added dimension in a US Presidential year. The introduction of a range of Public International Law related Masters Degree courses has complemented all that in a formal way, adding more academic opportuni- ties for interested students. But none of this, of course, works unless there is an enthusiastic and committed student group to take advantage of these opportunities and turn them into career pathways. The idea for the UWA International Law Club fi rst emerged when UWA Law student Liam Elphick, also a casual academic tutor at UWA and Research Assistant to Law School Dean Erika Techera, detected a strong enthusiasm for knowledge and under- standing of international law in a fi rst-year Politics unit he was teaching. After conclud- ing that there was no easy way for students in the Law School, let alone other schools, interested in international law to engage or connect with other like-minded students, Liam asked a number of students interested in international law if they would like to start a new Public International Law focused club for students to pursue their interest. Liam and his fellow students were strongly supported in their task by Dean Erika Techera, and a trio of UWA Law School Public International Lawyers: Holly Cullen, Philipp Kastner and Sean Richmond. Following a summer of planning, the UWA In- ternational Law Club was offi cially formed and affi liated to the UWA Student Guild in February 2016. Its express aim is to foster engagement with International Law among students and staff at UWA. I had the honour to be the guest speaker at their launch event in March this year. From then, the UWA International Law Club began its activities and implementing its ideas. Firstly, a blog called JusT Cogens, dedicated to a brief and light-hearted take on a con- (2016) 1 Perth International Law Journal 1 iii Stephen Smith temporary international law issue, was created. It has run a new issue weekly since its establishment - giving many students at UWA the chance to write on a topic they are in- terested in. Next, an International Law Seminar Series was established, a regular hourly presentation and in-depth discussion on an international law topic, with fi ve seminars taking place each semester. A mix of undergraduate students, Honours, Masters and PhD students, Research Fellows, and UWA and Visiting Academics have presented in this series, creating and fostering deeper understanding of and debate about interna- tional law at UWA. Thirdly, a range of other presentations were organised - including an Introduction to International Law session for fi rst-year students, and a presentation by the Honourable Kim Beazley on his experiences as Australian Ambassador to the Unit- ed States of America. As well, the Club has also been involved in collaborative efforts with other UWA clubs, including joining with the Blackstone Society to jointly run the Australian Red Cross International Humanitarian Law Mooting Competition, and the International Law Quiz Night! And fi nally, the Journal. In 2016, the Perth International Law Journal began its fi rst steps as one of only a small handful of international law focused journals in Australia. The fi rst issue was edited by students on the UWA International Law Club Journal Sub-Committee, and included articles written exclusively by students, both undergraduate and postgraduate. This provides students of all levels the chance to publish their longer academic pieces of international law research without the uphill battle of trying to be published in high- ly competitive peer reviewed international law journals. That can come later in their careers! The Perth International Law Journal is an annual journal, open to any students from any University to publish in. My congratulations to Liam Elphick, the inaugural President of the UWA International Law Club, to Isabella Bogunovich, the inaugural Editor of the UWA International Law Club Journal, to members of the Journal Sub Committee, and to all Club members on a great start to the Club’s activities. Stephen Smith Former Minister for Defence and Minster for Foreign Affairs Professor of International Law, The University of Western Australia iv (2016) 1 Perth International Law Journal 1 Editor’s Foreword EDITOR’S FOREWORD I am proud to present, on behalf of The University of Western Australia International Law Club, our inaugural journal, ‘The Perth International Law Journal’. The journal features an interesting and diverse compilation of undergraduate and post-graduate stu- dent papers on topics ranging from human rights and international humanitarian law to cultural heritage to piracy to international arbitration. This journal has a strong stu- dent-focus and is designed to provide an accessible platform for both undergraduate and post-graduate students to publish papers on both public and private international law related topics. I would like to thank my sub-editorial committee and Natalie Thompson for their in- valuable assistance. I hope you enjoy the journal! Isabella Bogunovich Editor v Contents Persuasion: Austin, Sanctions and the Legal Status of International Law Nicole Mumford ...................................................................................................... 1 A Model of Amnesty: Inducing Non-State Armed Groups to Comply with International Humanitarian Law Liam Elphick ......................................................................................................... 10 Internationalisation of Non-International Armed Confl ict Ian Whitelaw ......................................................................................................... 30 A Contemporary Maritime Threat: An Analysis into the Effectiveness of the Law of the Sea in Combating Piracy Sandhya Nair ......................................................................................................... 42 Tangible and Intangible Heritage: Cultural Landscapes in Colombia and Indonesia Lauren Carmody .................................................................................................... 59 Social Rights as Human Rights: Discussion of the Legal Protection of Socio-Economic Rights in Australia Lauren Jackson ...................................................................................................... 72 Arbitrating in Harmony: The Effect of the Model Law on the Choice of Seat of Arbitration Wygene Chong ...................................................................................................... 82 Is the Threat or Use of Nuclear Weapons Permitted under International Law?: A Case Note on the Nuclear Weapons Advisory Opinion Matheo Vincuillo ................................................................................................. 101 Why Freedom Isn’t Free Nancy Zhang ....................................................................................................... 120 A Case Analysis of Scafom International BV v Lorraine Tubes S.A.S: the Application of Article 79 of the United Nations Convention on International Sale of Goods Tian Dai ............................................................................................................... 131 vi Persuasion: Austin, Sanctions and the Legal Status of International Law PERSUASION: AUSTIN, SANCTIONS AND THE LEGAL STATUS OF INTERNATIONAL LAW NICOLE MUMFORD* This paper examines the contemporary validity of John Austin’s theory that the law ‘properly so called’ necessarily requires a command backed by a sanction in the context of international law. This paper argues that Austin’s argument is largely incorrect in its application to the contemporary international system, based upon two limbs. Firstly, sanctions in various forms exist in enforcing public international law, including
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