The Practitioner’s Guide to International Law INTERNATiONAL LAW COMMiTTEE • 2nd edition The Practitioner’s Guide 2ND EDiTiON A publication from the International Law Committee of to International Law THE LAW SOCIETY OF NEW SOUTH WALES YOUNG LAWYERS www.younglawyers.com.au www.lexisnexis.com.au 401239 Young Lawyers: The Practitione 11/06/2014 A CyanMagentaYellowBlack The Practitioner’s Guide to International Law 2nd Edition 1 401239 2 401239 The Practitioner’s Guide to International Law 2nd Edition International Law Committee © The Law Society of New South Wales (New South Wales Young Lawyers International Law Committee) 2014 3 401239 The Practitioner’s Guide to International Law 2nd Edition Published by: NSW Young Lawyers 170 Phillip Street, Sydney NSW 2000 DX 362 Sydney T: 9926 0270 F: 9926 0282 E: [email protected] younglawyers.com.au Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted or implied by the authors or The Law Society of New South Wales (NSW Young Lawyers) and any liability is hereby expressly disclaimed. First edition: 2010 © 2014 The Law Society of New South Wales (NSW Young Lawyers), ACN 000 000 699, ABN 98 696 304 966. © 2014 Reed International Books Australia Pty Limited trading as LexisNexis. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of The Law Society of New South Wales. ISBN: 9780409340228 Cover design by Mike Avery Creative The design represents an ever changing world governed by International Law that can be more easily interpreted with The Practitioner’s Guide to International Law, 2nd edition 4 401239 Table of Contents Foreword vii Acknowledgments xi About this Guide xv Chapter 1 International Law and Australian Practitioners 1 Chapter 2 The Sources of International Law and Australian Law 5 Chapter 3 International Conventions 13 Chapter 4 Other Sources of International Law 30 Chapter 5 Private International Law/Conflict of Laws 44 Chapter 6 Specialist Topics of International Law 57 Chapter 7 International Dispute Resolution 69 Chapter 8 Public International Law 85 Chapter 9 International Criminal Law 111 Chapter 10 International Environmental Law 151 Chapter 11 Investment, Trade and the World Trade Organisation 188 Chapter 12 International Copyright Law 205 Chapter 13 International Sale of Goods 213 Chapter 14 The Protection of Cultural Property 225 Chapter 15 International Family Law and Succession 238 Chapter 16 Sydney Statement on the Practice of International Law before National and International Fora 255 Chapter 17 Additional References 259 v 5 401239 6 401239 Foreword The energy and confidence of young practitioners adds to the Australian scholarship in international law, much of it developed during my professional lifetime, made accessible by this new edition of a respected text. Fifty years ago David Bennett introduced me to Julius Stone, whose classic account of the limits of judicial law-making “Non liquet and the function of law in the international community”1 explains our work in the Special Tribunal for Lebanon.2 Currently James Crawford affords guidance, both as a scholar and as counsel, to all who are engaged in international law.3 The present perceptive book both records and contributes to the evolution developed by Stone, Crawford and their compatriots: Australia is no mere critic of an international law created elsewhere, but one of its most vibrant developers. The book evidences the law’s basic decency insisted on by O’Connor J in Potter v Minahan (1908): “It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.” 4 International law is about managing the unfamiliar. A generation ago, save for private international law in which Australians are perforce expert, the law of nations (as it was then known) was largely a matter for politicians and 1 (1959) 35 BYIL 124 2 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging STL-11-01/I, STL Appeals Chamber, 16 February 2011, para. 23. 3 His The Criteria for Statehood in International Law (1976) 48 BYIL 93 is currently the most-read article of the British Yearbook of International Law; his eighth edition of Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 2012) has been described as “a masterpiece, the fruits of an awesome labour” which has breathed new life into a classic: (2013) 129 LQR 296. 4 [1908] HCA 63, 7 CLR 277. A modern example is Plaintiffs M70/2011 and M106/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 150 ILR 506. vii 7 401239 The Practitioner’s Guide to International Law diplomats.5 Sir Owen Dixon’s assumption of the latter role, soon followed by the recognition of human rights in the United Nations Charter and other instruments, evidenced the need for Bentham’s larger concept of “international law.” The shrinking of distance by modern transport and communications has since made all of us citizens not only of our own State but of a global society. As national borders are increasingly overridden by human interface, so too are national legal borders. This in turn has given rise to the need for laws to regulate both changing relationships and the resulting disputes. The result has been a multitude of treaties – including treaties which regulate cross-border environmental conduct and facilitate bilateral investment - and the need for these and other aspects of international law to deal adequately with the frenetic pace of change in our modern times. Much of international law draws on ancient principles established over centuries since the recognition that foreign heralds must receive a privileged status.6 They have been developed by legal thinkers who, under the cover of “lex naturalis”, “ jus cogens” and other neolatinisms, have applied principles of practical necessity stated by Cicero and repeated by Grotius, which bear an uncommon likeness to those applied in the development of the common law of Australia. The sensitivity of the great judgment in Mabo7 showed how Australian counsel and judges could in nominally domestic litigation reach beyond the limits of precedent to do right to all manner of people according to principles of justice, despite cultural and other differences that had previously seemed unbridgeable. That too is the task of international law. So today’s Australian judges do not need to find ambiguity to justify recourse to international law: as authors of that law they have direct recourse to it.8 5 As noted at p. 6 of the present text, it then formed no part of Australian law: Chow Hung Ching v R (1948) 77 CLR 449, 462 (Latham CJ), 471 (Starke J) and 477 (Dixon J); compare the Privy Council in Chung Chi Cheung v R [1939] AC 160 at 167-8 and the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ungarte (No 3), [2000] 1 AC 147 (the crime of torture under international law as being actionable and for which immunity could not be pleaded before an English court); R v Jones [2006] UKHL 16; [2007] 1 AC 136 [11] per Lord Bingham); also per Merkel J (dissenting) in Nulyarimma v Thompson (1999) 96 FCR 153 [131-2]. Nowadays in the absence of contrary indications, Australian law is to be interpreted consistently with Australia’s international obligations: p. 6 (citing The Queen v Tang [2008] HCA 39 [110] (per Kirby J); The Commonwealth v Yamirr [2001] HCA 56 [129] (per McHugh J)) and p. 26 of this text. See also Minister of State for Immigration and Ethnic Affairs v. Teoh [1995] HCA 20 [27] (per Mason CJ and Deane J). 6 For an overview of this ancient practice, see D. J. Bederman, International Law in Antiquity (Cambridge: Cambridge University Press, 2004), pp. 88-120. 7 (1992) 175 CLR 1 8 Behrooz v Secretary of the DIMIA [2004] HCA 36 [126-7] per Kirby J cited at p. 27 of this text. viii 8 401239 Foreword The role of this book’s intended audience, the professional leaders of the next and even more globalised generation, includes maintaining and developing the initiatives of the Australian jurists which it records - demolishing unnecessary differences among national laws and designing and building a new international law. The opportunities are unlimited. In the great sphere of criminal law, fundamental to peace, order and good government within each State, international law is in its infancy. Aside from a handful of precursor events, modern international criminal law, with its noble aim of accountability for political and military leaders, is still developing from the victors’ justice at Nuremberg. This recent development may be charted from the United Nations International Criminal Tribunal for the former Yugoslavia (in which Australians played notable roles, including former High Court Judge Sir Ninian Stephen and Judges David Hunt and Kevin Parker together with its current Registrar John Hocking (himself a former Associate to then President of the Court of Appeal of New South Wales, Judge Michael Kirby)) and the United Nations International Criminal Tribunal for Rwanda, the permanent International Criminal Court and the small cluster of specialist tribunals. Your compatriots in these and other international organizations, including Judge David Re in the Special Tribunal for Lebanon and Judge Rowan Downing in the Extraordinary Chambers in the Courts of Cambodia, are trail-blazers, who in developing a career in international law and assisting in the vital development of the rule of law, enhance the respect in which Australian lawyers are held around the world.