In May 2009, in co-operation with the Chartered Institute of Arbitrators Australia (CIArb), the International Law Committee staged the inaugural CIArb/YL International Arbitration Moot.

This co-operation will continue in 2011, with the third CIArb/YL International Arbitration Moot to be held on Saturday 10 September 2011 at the Australian International Disputes Centre.

Attracting participants from Perth and Brisbane, this event is a showcase of the appeal of arbitration amongst young lawyers and has cemented its place as a progressive and high quality competition.

This event is also a great opportunity to experience the real world of arbitration and network with some of the pre-eminent professionals in the field to discuss the recent changes to both the state and federal legislation on arbitration.

The Competition’s main prize for Best Orator, won last year by Derek Wong, is a place in the Diploma in International Commercial Arbitration Course. The course is run jointly by the Chartered Institute of Arbitrators Australia and the University of New South Wales. The prize is valued at over $7000!

Other prizes are awarded for ‘Winning Team’, ‘Best Written Submissions’ and ‘Spirit of the Arbitration Moot’. Prizes last year for these categories were kindly donated by The Federation Press, Oxford University Press and Cambridge University Press.

We welcome Young Lawyers (lawyers under the age of 36 or in their first five years of practice) and students from around the country to apply to compete in this unique competition.

Applications to compete are now open and will close on 18 July 2011. For more information on the event and details on how to apply, please click here.

Please contact the Chair of the International Law Committee at intlaw.chair@younglawyers.com.au if you wish to find out more about our fantastic Moot.

The clinical execution of Osama Bin Laden in his redoubt in Pakistan has reminded us again of the many public policy issues related to terrorism. It was also in Abbottobad that the Bali bomber, Umar Patek, was arrested in January. It is now suggested he was on his way to see Bin Laden. Was he tortured, and did his interrogation lead the Americans to their quarry?

Is torture of any kind, including waterboarding, acceptable conduct by those who job it is to track down terrorists? How long is it reasonable to detain and interrogate suspected terrorists before bringing them to trial?  And is anti-terrorism part of a military campaign or an international law-enforcement effort? And, finally, what is the definition of a terrorist, and what does international law say about him or her?

Over the last two decades, and particularly since 9/11, terrorism has come to the fore as one of the most serious threats to international peace and security. 

The Australian Institute of International Affairs and the NSW Young Lawyers International Law Committee jointly invite you to discuss this important issue with three authorities:

Adjunct Professor Clive Williams MG, Centre for Policing, Intelligence and Counter Terrorism,MacquarieUniversity. Clive Williams has a career background as an officer in the Australian Intelligence Corps, which included a number of overseas intelligence appointments. After leaving the Army in 1981, he pursued a civilian career in Defence Intelligence, working mainly on transnational issues. He was a Chevening scholar at the War Studies Department, King’s College,London, in 1987. He has worked and lectured internationally on terrorism-related issues since 1980, and started running terrorism courses at the ANU in 1996. He left Defence in 2002, and has since run terrorism and national security-related Masters course electives at the ANU and a number of Australian and overseas universities. He became an Adjunct Professor at the Centre for Policing, Intelligence and Counter-Terrorism (PICT) atMacquarieUniversity in 2006. He also became a Visiting Professor at theSchool ofHuman and Social Sciences (HASS) of theUniversity ofNSW at the Australian Defence Force Academy (ADFA) in 2006. He is a member of the International Association of Bomb Technicians and Investigators (IABTI), the International Association of Chiefs of Police (IACP), the Australian Institute of Professional Intelligence Officers (AIPIO), and an Associate of the International Academy of Investigative Psychology (AIAIP).

Dr Christopher Michaelsen is a Senior Research Fellow at the UNSW Law Faculty. He teaches and specialises in public international law, human rights and international security. Prior to joining UNSW, he served as a Human Rights Officer (Anti-Terrorism) at the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe (OSCE) in Warsaw, Poland. He has previously worked for the United Nations Department for Disarmament Affairs in New York City, and at the Strategic & Defence Studies Centre of the Australian National University in Canberra. He has served as a consultant for the Asian Law Group in Semarang, Indonesia, and for the Center for Global Counter-Terrorism Cooperation in New York City. Chris is a member of the Gilbert + Tobin Centre of Public Law and a member of the Australian Human Rights Centre.

Dr James Renwick is a Barrister practising at the Sydney Bar. He is a former Fulbright Scholar. Prior to coming to the NSW Bar he was a solicitor in bothprivate and government practice, with a particular emphasis on public law. Some notable terrorism related matters include: representingAustralia at the trial of David Hicks atGuantanamo Bay,Cuba in late 2004, and appearing for the Police and ASIO in a number of terrorism prosecutions. He pioneered the teaching of national security law in Australia, gave one of the keynote addresses on that topic to the Judicial Conference of Australia in 2005 and, in January 2008, devised, organised and spoke at a major conference on the conduct of terrorism trials, held in Washington DC, and undertook the same roles in 2010 in a conference on Jihadi recruitment. He is an Associate of the Sydney Centre for International Law, which is part of the faculty of Law within theUniversity ofSydney.

Robin Bowley (Seminar Moderator) is a former officer in the Royal Australian Navy and graduate of the Australian Defence Force Academy and Royal Australian Naval College. He is currently working as a solicitor for an Australian government regulatory authority and completing a PhD at theUniversity of Wollongong on maritime terrorism and international law. Formerly a council member of the AIIA; Robin is the current Stream Administrator for International Maritime and Aviation Law with the NSW Young Lawyers International Law Committee.

Date: Monday May 16, 2011

Time: Refreshments 6:00 pm; Presentation 6:30 pm – 7.30pm

Venue: The Glover Cottages, 124 Kent Street, Sydney (located adjacent to the Kent St Fire Station)

Cost: AIIA/YL members $15; Senior members / students $10; Visitors $20; Senior Visitors $15

1. PLEASE RSVP ONLINE or EMAIL ACCEPTANCE to nswexec@aiia.asn.au or intlaw.chair@younglawyers.com.au

2. Telephone acceptance to (02) 9247 8504 (if unattended leave a voicemail message)

3. Payment may be made at the door by cash/cheque/credit card

The winter edition of the Florida Bar’s International Law Quarterly (ILQ) is out. The ILQ is quickly becoming required reading for any international lawyer. While the last issue focused on China, the focus of the latest edition is international litigation and arbitration.

As Editor-in-Chief Alvin F. Lindsay points out, the geographical diversity of the authors selected for this edition is truly remarkable. There is something for everybody, from A View from Abroad: Corporate Responsibility for International Crimes? to Lost in Translation: American Juror Perceptions of Foreign Litigants. Other articles include:

  • The Enforcement of Foreign Arbitral Awards in Brazil and the Ratification of the New York Convention
  • Production of Electronic Documents and Information: New UK Practice Direction Targets Costs of Electronic Disclosure
  • The Better Approach to Deciding 28 U.S.C. §1782 Applications for U.S. Discovery in Private Arbitrations Abroad
  • International Arbitration in Australia
  • The Necessity Defense in Bilateral Investment Treaties: Looking Forward
  • Florida Adopts UNCITRAL Model law on International Commercial Arbitration to Further Bolster Miami’s Ability to Compete as a Viable Seat.
  • Unchartered Waters: The Kishenganga River Project Dispute and Arbitration Under the Indus Waters Treaty

As you can see, there’s something for everyone interested in international litigation and arbitration. This issue of the ILQ will make every international lawyer a better one. Enjoy!

On Tuesday evening, the AIIA and Young Lawyers International Law Committee held their first joint event on the future of immigration and refugee law and policy in Australia. The event was a resounding success and was attended by more than 80 members of our respective organisations.

The discussion panel consisted of Sydney University professor, Mary Crock, whose specific research interests range from studies of the interaction between Parliament and the judiciary, to the legal rights of migrants and refugees. Her research and analysis of the various policies and laws enacted by the Australian Government exposed serious flaws in our approach to refugees and Mary’s passion added a dimension to the discussion that humanised the whole experience.

Mary was be followed by Kerry Murphy, a partner of D’Ambra Murphy Lawyers working on all aspects of migration law including administrative and judicial review. Kerry’s work has taken him to the many Detention Centres scattered throughout Australia and off-shore. Listening to some of his experiences and hearing about the hardship suffered in these camps was vital to appreciating the austerity of some of the immigration legislation passed in the last ten years.

Pouyan Afshar, the immediate past president of NSW Young Lawyers and an Associate at Baker & McKenzie, closed off the discussion with his account of the cultural and social elements that rarely gain a mention in these kinds of discussions. Drawing from his own experiences as a migration agent and working with refugees as an interpreter, Pouyan’s account of the economic, political and cultural dimensions of the debate regarding “illegal immigration” had a grounding affect that was the final ingredient required in such a discussion.

Immigration and refugee law in Australia has been thrown around the political landscape to emulate the same emotional reactions synonymous with crime and social welfare. This is not a political issue. As Mary states: “The number of refugees who come to Australia as asylum seekers – by plane or boat – is minute in world terms. The numbers are manageable. Most come because of prior connections with communities in Australia.” Australia has a legal, moral and ethical requirement to approach this issue as more than just a political one.

Discussions such as these are vital to understanding the real issues that face Australia regarding immigration and refugees and I’d like to thank our panellists for their insightful and grounded contribution to this debate.

If you would like to read more about this topic, please find below a selection of articles that deserve a read:

International law has taken three body blows in the last decade: Serbia, Iraq and now Libya, where foreign interference is patently obvious, where the entire anti-Gathafi campaign is orchestrated from abroad, manipulated by the media and controlled by elements who have been trying to assassinate the Libyan leader for decades.”


In an article published in Pravda.Ru, a Russian online journal, http://english.pravda.ru/opinion/columnists/27-02-2011/117026-libya_law-0/, the editor of the English version, Timothy Bancroft-Hinchey, claims that:

“not all Libyans are against Colonel Gathafi, which is patently obvious in Tripoli and probably in other areas, where they dare not show their heads among marauding crowds of thugs, terrorists and vandals who have taken the streets, the darlings of an anti-Gadhafi international media which appears to support acts of terrorism and public disorder”

He makes the point that “what is at stake here is respect for international law, which upholds the right of all countries to apply their Constitution in their own territory.” While his editorial is blatantly anti-American, it provides an interesting perspective on the current crisis in Libya and identifies key weaknesses in the application of international law during war.

This insight comes as the International Criminal Court Prosecutor, Luis Moreno-Ocampo, in accordance with the requirements under the Rome Statute  announced the opening of an investigation in Libya after just four days of analysis. The speed is unprecedented, as the prosecutor normally spends many months before reaching a decision to actually commence an investigation. Both the Security Council resolution and the swift response by the prosecutor is an indicator of the growing importance of the ICC in international affairs.

The ICC is different from the International Court of Justice (ICJ), which, with its predecessor court, has operated for nearly a century. While the ICJ handles legal questions involving states (such as the West Bank security barrier), the ICC is a criminal court that tries individuals. This is one of the material differences of the ICC and the ad hoc international tribunals created largely in the past two decades: they can take custody of individuals, try them, and put them in prison. The idea is that holding individuals accountable (and not just states) is the most effective way to deter serious violations of humanitarian law and human rights.

Interestingly, the United States not only supported the referring the Libyan situation to the ICC but even helped circulate a draft resolution with the idea, although it is not a party to the Rome Statute and it abstained in the referral of the Darfur violence.

As in the case of Darfur, the investigation regarding Libya might lead to arrest warrants targeting not only Col. Qaddafi and his family but also officers, soldiers, paramilitaries, or mercenaries engaged in criminal acts. If the court succeeds in taking suspects into custody, the process could then continue toward trials or sentencing.

Even if the process does not go that far, ICC involvement could still affect events significantly. ICC action is now a card in the hands of opponents of the Qaddafi regime. In any negotiations with Qaddafi, his opponents could use the stick of ICC prosecution (and the carrot of the Security Council’s suspending ICC action for renewable twelve month periods) as an incentive for Qaddafi to stand down. If Qaddafi decides to leave Libya with ICC action ongoing, then he might need to opt for countries like Nicaragua or Cuba that are not party to the Rome Statute, rather than a Rome Statute state like Venezuela. If violence continues, the threat of ICC prosecution also could motivate those working or fighting for Qaddafi to refuse orders.

Is international law enforceable under wartime conditions?

What role does the media play in building potential cases to be heard in the ICC?

Please post your comments below.

Some thoughts on the role of social media in the recent riots, here.

The United States announced on December 22, 2010 that it has sought the World Trade Organization’s (WTO) intervention to address US concerns over support for the domestic wind power industry in the People’s Republic of China. This request is the first step in a potential WTO case.

China’s government provides official support, in the form of monetary grants and other benefits, to develop its domestic wind power manufacturing industry. In its filing, the United States asserts that the program provides subsidies and other support that is contingent on the use of domestic Chinese parts and components, which is prohibited by the WTO Agreement on Subsidies and Countervailing Measures (SCM). The United States also claims that China failed to notify the WTO of its wind power program, which is inconsistent with China’s obligations under the SCM Agreement.

After a 60-day consultation period (or shorter if the parties agree), the United States could ask the WTO to establish a dispute settlement panel. If the panel agrees with the United States and any related appeals fail, the WTO could permit the United States to raise tariffs on Chinese imports. The amount of permitted US retaliation generally would be proportional to any injury the WTO panel finds. Potential US retaliation could be substantial—the United States alleges that the program provides prohibited support worth several hundred million dollars.

The December 22 action has major implications for the US-China relationship. Businesses that produce or trade wind power-related, or other “green industry” products, should follow this issue closely. This dispute could also impact the broader US-China trade relationship, and potential retaliatory measures could affect businesses and investment unrelated to green technology.

The US action may also mean the resurrection of Section 301 as a tool for US businesses and workers to address international trade issues. In recent years the United States has frequently rejected Section 301 petitions, and thus Section 301 has been considered an ineffective tool for prompting government action on trade issues. However, the current action may signal that the US government is now more receptive to Section 301 petitions.

Here are two alternative takes on the case:

http://www.guardian.co.uk/commentisfree/cifamerica/2011/jan/06/china-renewableenergy

http://triplecrisis.com/going-green-gets-dirty/

In response to the Guardian article linked above, I would like to clarify the basic legal elements of a claim under Article 3.1(b) of the SCM Agreement, which is the provision invoked by the US in this case. There are only two legal elements: (i) there must be a “subsidy” as defined in the SCM Agreement, and (ii) that subsidy must be contingent on the use of domestic over imported goods. There is no requirement for the US to demonstrate or a WTO panel to find that “China’s green fund targets only specific sectors”. In addition, there is no requirement for the US to demonstrate or a WTO panel to find “that the funds are channelled to trade activities that harm US firms and workers”.

The US complaint (DS419) also includes a new claim under the China Accession Protocol: China has not made available a translation of the measures at issue into one or more official languages of the WTO. As part of its accession commitments on transparency, China agreed to make such translations available within 90 days of the implementation of any measure affecting trade. Given the sheer number of trade-related measures issued in China on a daily basis, this obligation was bound to be breached. Now it has actually become a target in a WTO complaint!

Does anyone know whether any other acceding country has undertaken a similar translation obligation?

To get a perspective on accession agreements, look at the most recent Secretariat technical note on accessions, WT/ACC/10/Rev.4 (which summarizes the issues and concerns generally expressed) and its annex, WT/ACC/10/Rev.4/Add.1 (which sorts and presents accession provisions). Both are updated to early 2010.

WT/ACC/10/Rev.4/Add.1 shows (p. 187ff) that Taiwan agreed to

“ensure that from the date of accession, all laws, regulations, judicial decisions and administrative rulings of general application relating to trade in goods, as well as measures subject to the transparency provisions of the GATS and TRIPS Agreement would be translated and published in an official WTO language no later than 90 days after enactment or issuance.”

For an interesting comparison, here is the China commitment (Working Party Report, para. 334, incorporated into the Protocol):

“The representative of China confirmed that China would make available to WTO Members translations into one or more of the official languages of the WTO all laws, regulations and other measures pertaining to or affecting trade in goods, services, TRIPS or the control of forex, and to the maximum extent possible would make these laws, regulations and other measures available before they were implemented or enforced, but in no case later than 90 days after they were implemented or enforced.”

Note how the wording is different from Taiwan’s commitment.

Hello all, and welcome to the newly restored Red Telephone blog. This site was originally set up in 2007 as the online headquarters and newsfeed of the International Law Committee. We have now regained access and have the opportunity to post opinion pieces and comments on international law.

On this site you’ll find up-to-the-minute news covering all aspects of international law, gathered and edited by our intrepid Committee members, as well as updates on the latest professional and social events and the work of the Committee itself.

Please feel free to contact me should you wish to make a contribution!

For those of you who are still reading the site – in which case I commend your exceptional demonstration of faith – you will notice some odd behaviour, changes in design and content over the next week while we transition to a new working model.

Please check back at the end of next week for the revamped content. Thanks.

Adam Segal of the Council of Foreign Relationsrecently labelled State sovereignty as a more 19th century concern. Considering the continuing evolution of the Responsibility to Protect and events in Iraq, Afganistan, the former Yugoslav Republic of Macedonia, is Mr Segal correct? Are we becoming sufficiently globalised to consider State Sovereignty less of a concern than it was in the 19th century? The centrality and importance that debates over security and immigration have or had in most of the current or recent elections around the world argues that Sovereignty is far from dead. Nonetheless, the recent and continuing crisis in the global financial system provides support for Mr Segal’s position.

Are we seeing a trend away from the centrality of Sovereignty in international and domestic law? Are we approaching a tipping point, after which globalisation will continue to inexorably strip away Sovereignty? Alternatively, is the current global position a low point for Sovereignty, from which we will return to a less globalised position, at least from the point of view of international and domestic law? Your thoughts?

About this site

THE RED TELEPHONE is the newsblog and discussion forum of the International Law Committee of NSW Young Lawyers, a division of the Law Society of New South Wales.

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