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Recent Australian Practice

From the Office of International Law, Attorney-General's Department

Cluster munitions

On 30 May 2008, a new cluster munitions Convention was adopted following a two week negotiating conference in Dublin. Over 120 countries, including Australia, participated in the negotiations, along with non-government and international organisations. The negotiations were a culmination of a process commenced in Oslo in February 2007 and included conferences in Lima, Vienna and Wellington. Australia played a significant role in the negotiations, including on the issues of definitions, victim assistance and the effect of the Convention on operations with non-States parties.

Cluster munitions have caused significant humanitarian harm over many decades in places such as Laos, Vietnam, Cambodia, Afghanistan, Iraq and Kosovo. Cluster munitions tend to have indiscriminate effects when dropped in civilian populated areas, and those which fail to explode may affect communities for years to come.

The new Convention bans the use, production, stockpiling and transfer of all munitions that can accurately be described as cluster munitions. State parties will be obliged to destroy all remaining stockpiles and clear cluster munition remnants from their territories. There are strong provisions on assisting victims of cluster munitions and their affected communities.

The Convention will be open for signature from December 2008 and will have legal force when 30 countries have ratified. Some major stockpilers and users of cluster munitions did not participate in the negotiations. However, many North Atlantic Treaty Organization (NATO) States, as well as countries such as Australia and Japan, were engaged in the process.

Separate negotiations to regulate the use of cluster munitions within the framework of the Certain Conventional Weapons Convention are continuing in the lead up to a meeting of States parties in November 2008. Australia is participating in this process, along with major producers and stockpilers of cluster munitions.

International Criminal Court: Crime of Aggression

The Australian Government has been involved in discussions during the Assembly of States Parties to the International Criminal Court (ICC) on provisions amending the Rome Statute to allow the Court to exercise jurisdiction over the crime of aggression. The crime of aggression seeks to impose criminal liability on leaders for their involvement in a State’s commission of an act of aggression against another State. The Rome Statute provides that the Court will exercise jurisdiction over the crime of aggression only after the adoption and entry into force of provisions defining the crime and setting out the conditions for the exercise of the ICC’s jurisdiction over the crime. The Assembly of States Parties aims to finalise discussions on the crime of aggression by February 2009 in advance of the first review conference of the ICC, scheduled for 2010.

A key outstanding issue is the conditions under which the ICC will exercise jurisdiction over the crime of aggression, including the role of the Security Council in triggering the ICC’s jurisdiction. The scope of the State act of aggression giving rise to individual criminal liability, including the extent to which the Rome Statute will incorporate or refer to the definition of aggression in UN General Assembly Resolution 3314 (1974), has also been a focus of recent discussions.

International Fisheries law

Over the past year, the Australian Government has been active in developments in international fisheries law. Australia, together with New Zealand and Chile, is co-sponsoring the negotiations for a South Pacific Regional Fisheries Management Organisation. This organisation will be responsible for conserving and managing living marine resources not already covered by other international agreements in the South Pacific Ocean. The area to be covered will extend from the eastern part of the South Indian Ocean through the Pacific to the outer edge of waters under the jurisdiction of South American States. The sixth round of the negotiations will be held in Australia in October 2008.

Port State measures agreement

The Australian Government has also been involved in the Consultations to establish a port State measures agreement to combat illegal, unreported and unregulated fishing.
The agreement has the potential to prevent the products of illegal, unreported and unregulated fishing from entering the marketplace, and to deny port access and services to vessels engaging in such fishing. Port State controls have the potential to be an effective way to deprive those engaging in illegal, unreported and unregulated fishing of the benefits of their activities, and would provide a second line of defence against inadequate flag state control of fishing vessels. However, clearly, widespread adoption and implementation will be required for the agreement to be truly effective. It is hoped this text will be finalised for adoption in 2009.

UNCITRAL Arbitration Rules

The United Nations Commission on International Trade Law continues to develop revisions to the UNCITRAL Arbitration Rules. The Rules are being revised to bring them up-to-date in light of developments in international arbitral practice since the Rules were adopted in 1976. However, the spirit and structure of the Rules will be retained. The Australian Attorney-General’s Department is leading Australia’s negotiations on this project, with representatives from the Law Council of Australia and the Australian Centre for International Commercial Arbitration.

UNCITRAL Convention on contracts for the international carriage of goods wholly or partly by sea

On 3 July 2008, UNCITRAL adopted a final text of the Convention on contracts for the international carriage of goods wholly or partly by sea. The Convention will introduce a new legal liability regime for the international carriage of goods where there is an international sea leg. The intention is that if it enters into force it will replace the existing rules, namely the Hague Rules, the Hague-Visby Protocol, the Hamburg Rules and the various regional arrangements.

The UNCITRAL Commission spent two weeks considering the draft Convention as presented to it by the Working Group on Transport Law. The main changes made by the Commission were the deletion of Article 13 (a provision which was intended to validate the traditional ‘through’ bill of lading), the deletion of Article 36 (concerning the contractual limitation of shipper’s liability) and amendments to Article 49 (concerning delivery without the production of the bill of lading). The formal report of the meeting notes that, by deleting Article 13, the Commission did not intend to prevent the current practice of using ‘through’ bills of lading. Australia and a number of other countries unsuccessfully sought deletion or substantial amendment of the volume contract provision which allows freedom of contract for certain shipments in the liner trade. It remains a matter of concern as it could be used as a means of derogating from the otherwise mandatory liability regime.

The text will be transmitted to the United Nations General Assembly for formal approval later in 2008. If approved, the Convention will be open for signature by countries in September 2009. The Government of the Netherlands have offered to host a signing ceremony in Rotterdam in September 2009 in order to promote the Convention.

Australia ratifies UN Disability Convention

On 17 July 2008, Australia ratified the UN Convention on the Rights of Persons with Disabilities, making Australia one of the first countries to do so. The Convention entered into force for Australia on 16 August 2008. With 37 States Parties currently, the Convention aims to promote a global community in which all people with disability are equal and active citizens. Australia has a long-standing commitment to upholding and safeguarding the rights of people with disability, and ratifying the Convention demonstrates the Government's international commitment to ensuring that people with disability are treated equally.

Australia’s ratification is the result of substantial collaboration by Government and non-government stakeholders. Ratification came after the Australian Government expedited its ratification processes and the Joint Standing Committee on Treaties supported taking binding treaty action. It also means Australia can participate in the inaugural election of the Committee on the Rights of Persons with Disabilities, which will oversee the implementation of the Convention. Australia has nominated for election to the Committee Professor Ronald McCallum AO of the University of Sydney.

Australia issues Standing Invitation to UN Special Procedures

On 7 August 2008 the Australian Government announced that it will extend a standing invitation to UN human rights experts to visit Australia, demonstrating its willingness to engage positively with the international community to implement human rights obligations.

The UN Human Rights Council has a mandate to examine, monitor, advise and report publicly on human rights situations in specific countries, or on major human rights issues anywhere in the world. However in order to send a Special Rapporteur or a working group to any country, permission of the receiving country must be obtained.

By extending a standing invitation, Australia joins 61 other countries, including the United Kingdom, New Zealand and Canada, who have adopted this positive approach. The decision underscores the Australian Government’s commitment to strengthen Australia’s engagement with the UN and to be a leader in international human rights.

Australia’s Extended Continental Shelf Confirmed

On 9 April 2008, the Commission on the Limits of the Continental Shelf established under the 1982 United Nations Convention on the Law of the Sea confirmed Australia’s entitlement to an area of continental shelf beyond 200 nautical miles (extended continental shelf) of approximately 2.56 million square kilometres. The area is depicted in the map available here.

Each coastal State is entitled to a continental shelf of at least 200 nautical miles measured from its territorial sea baseline. It is entitled also to an extended continental shelf (ECS) where the natural prolongation of its land territory extends beyond that point. Where an entitlement to an ECS exists, a submission must be made by the relevant country to the Commission seeking confirmation of that entitlement. Australia lodged its submission with the Commission in November 2004. It was the third country to do so.

Australia’s engagement with the Commission over seven sessions covered complex geomorphological, geological and legal issues. The more complex legal issues included the manner in which the Commission should deal with Australia’s maritime delimitations, the construction of the outer boundary of the ECS and submarine ridges.

Australia had sought confirmation from the Commission of some 3.37 million sq km of ECS. In so doing, Australia requested the Commission not to consider for the time being some 0.7 million sq km of ECS adjacent to the Australian Antarctic Territory. Also, two areas of the ECS (the Joey Rise and the Williams Ridge – approximately 0.08 million sq km) are yet to be fully resolved by the Commission. An area of approximately 0.05 million sq km was relinquished in the course of engagement with the Commission. Australia is now in a position to proclaim the outer limit of most of its continental shelf under the Seas and Submerged Lands Act 1973.