limits on civil 'adjudicative' jurisdiction-that is, the authority involved in subjecting persons or things to a State's domestic courts' judicial process2-further illuminate and reinforce the uncertainty.
The oceans are home to a rich diversity of plant and animal life and also provide a source of food and marine resources that drive economies. Climate change and pollution are changing ocean dynamics and the ability of the oceans to support life. Seabed mining in areas beyond national jurisdiction will add to the ocean’s stressors and could cause severe environmental damage. The International Seabed Authority (‘ ISA ’) is mandated to manage access to and benefits from the seabed, its subsoil, and mineral resources in areas beyond national jurisdiction (the ‘Area’). Although the United Nations Convention on the Law of the Sea sets out the legal framework for developing the Area and its resources, it does so in broad terms and leaves substantial gaps. These gaps include the scope of activities in the Area, the interrelationship of international obligations, the division of responsibilities between the ISA and sponsoring states, and the regulation of the mining system in situ. To partially fill these gaps, the ISA has drafted a set of ‘Phase 1’ Standards and Guidelines under the Draft Regulations on Exploitation of Mineral Resources in the Area. This paper investigates and critiques five environmental Draft Standards from a precautionary and comparative law perspective. Phase 1 standards and guidelines should adopt a more rigorous interpretation of the precautionary principle. Additional recommendations include creating enhanced governance processes and incorporating an ecosystem-based framework for regional environmental assessments and management plans not present in Draft Standards. This research will assist academics, practitioners, governments and the ISA with policies and strategies to enhance environmental and social protections from seabed mining.
Australian engagement with public international law in 2022 was multifaceted, with the country acting as the initiating party in some international proceedings and the responding party in others.This contribution provides a brief overview of some of the more salient situations where Australia engaged with international courts, tribunals, and bodies in 2022.The most pressing international legal event of the year was the invasion of Ukraine by the Russian Federation on 24 February 2022.This action inspired Australia to join with thirty-seven other nations in making a State Party referral to the Prosecutor of the International Criminal Court ('ICC'), as discussed in Theme 1 below.1 On 14 March 2022, Australia also joined with the Netherlands to initiate proceedings against the Russian Federation in the International Civil Aviation Organization ('ICAO') for Russia's role in downing Malaysia Airlines Flight MH17 in 2014.2The action, which was based on Article 84 of the Convention on International Civil Aviation, supplemented Dutch criminal proceedings against four individuals suspected of being involved with the downing of Flight MH17.3The second theme of 2022 involved reports and decisions from the United Nations Committee against Torture ('Committee').The Committee considered * The summaries reflected in this article were prepared
Since being described as a ‘constitution for the oceans’ at its adoption in 1982, the United Nations Convention on the Law of the Sea (‘ LOSC ’) has evolved to hold a special status among multilateral treaties. As a constitution—actual or perceived—the LOSC has provided the framework and processes for a relatively dynamic law of the sea that has developed to address new environmental, technological and geopolitical challenges in the forty years since its adoption. By necessity however, these developments have been incremental in nature and have been confined by the parameters of the LOSC constitution. In this article, I argue that such incremental change will be insufficient if the law of the sea is to adapt to the Anthropocene, our current geological and geopolitical Epoch. In this article, I argue that the characterisation of the LOSC as a ‘constitution for the oceans’ has become a straitjacket for the regime and is preventing the serious exploration of alternative epistemological imaginaries of the law of the sea. I argue for a quiet abandonment of the description of the LOSC as a ‘constitution for the oceans’ and the actual and perceived consequences of the appellation.
This article explores the negative implications of the biological diversity of areas beyond national jurisdiction (‘ BBNJ ’) process for the common heritage of humankind (‘ CH ’) principle, focusing on the discussions over its applicability to Marine Genetic Resources (‘ MGR s’). This article argues that the CH under the United Nations Convention on the Law of the Sea for deep-sea mineral resources was neither necessary nor desirable for MGR s governance. An analysis of the BBNJ process demonstrates that CH ’s exploitation bias is still persistent, which makes this principle politically controversial and prevents the principle from embracing sustainable development. Indeed, Article 7 of the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction stipulates the CH as a general principle of the new BBNJ regime. However, the BBNJ negotiations failed to articulate how the CH principle can contribute to managing the living resources, MGR s, in areas beyond national jurisdiction. This finding would cast doubt on the alleged potential of the CH principle to govern a broad range of subjects or resources other than deep-sea minerals.
After almost two decades of discussions and negotiations, the legally binding instrument on biodiversity beyond national jurisdiction (‘ BBNJ ’) was adopted on 19 June 2023, of which Environment Impact Assessment (‘ EIA ’) is one of the key pillars. Given that EIA in the new instrument is proposed with a view to the conservation and sustainable use of marine life in areas beyond national jurisdiction, flag States should mainly have an obligation to regulate EIA by applying their domestic legislation. However, for some activities involving many vessels, marine structures, and cables, EIA by flag States may not work effectively. EIA s for offshore windfarm activities may be particularly difficult. Against this background, this study explores how international legal rules should regulate EIA s of offshore windfarms established in areas beyond national jurisdiction. In particular, this study considers which States should have EIA obligations from the perspective of both lex lata and lex ferenda .
This article explores the development of Australia’s policy approach towards communicable disease, both domestically and internationally. Drawing on archival records, it considers the methods used by federal and state governments to manage disease in Australia over time, analysing the key beliefs and priorities held by successive governments, and how these reflect Australia’s particular character and history. Against these domestic concerns, the article interrogates Australia’s approach to global health governance, with a particular focus on the state’s contributions to the drafting of major international health instruments on communicable disease. This analysis reveals the idiosyncratic nature of Australia’s health policy and the resulting impact on Australia’s contributions to the international legal system. It shows that Australia’s approach has consistently relied on the creation and preservation of an impermeable national border. This policy reflects an institutionalised belief, held continually since the early colonial period, that disease must be fully eradicated, and that this is best effected through taking advantage of the country’s geographic isolation. Domestically, this conception of disease control results in the adoption of strict quarantine requirements, immigration restrictions and broad discretionary powers regarding the entry of people and goods, while in the international context, Australia supports norms that facilitate its reification of its border. Accordingly, the article contextualises Australia’s health policy across four time periods of global health governance: the first sanitary conferences of the 19th and early-20th centuries, the post-World War II creation of the World Health Organization, the International Health Regulations 2005 revision project, and those Regulations’ operation before and during the COVID -19 pandemic. This article’s findings reveal the intrinsic connection between the unique domestic concerns of states and their approaches to international negotiations, which stymies the ability to generate effective cooperation globally. It clarifies this relationship and invites reflection on the resulting obstacles to international law’s progressive development.
In March 2020, Australia became one of a handful of democratic states worldwide to adopt a blanket prohibition on the right of citizens to leave its territory, whether temporarily or permanently, in response to the COVID -19 pandemic. The International Health Regulations, which bind all members of the World Health Organization (‘ WHO ’), including Australia, provide an international legal framework to guide the public health response to the international spread of disease in a manner which respects human rights and fundamental freedoms. The right to freedom of movement in international human rights law is enshrined in the International Covenant on Civil and Political Rights (‘ ICCPR ’), which Australia ratified in 1990. Although states can place restrictions on freedom of movement to protect public health, they must be appropriate to achieve their protective function, the least intrusive instrument which might achieve the desired result, and proportionate to the interest to be protected. This article argues that in adopting sweeping restrictions on outbound travel, Australia re-purposed aspects of its migration control regime—ordinarily employed to externalise its international border and prevent people from entering the country—in order to prevent Australian citizens and permanent residents from leaving Australia. The outbound travel restrictions further bypassed an analysis of the intrusiveness and proportionality of the measures themselves, and shifted the burden onto individuals to request an exemption where the regulation of exit proved overly intrusive or disproportionate in their particular circumstances. In examining parliamentary transcripts, press statements by government officials, and recently revealed data regarding outbound travel exemptions, this article raises serious questions regarding the legality of the restrictions over time and their implementation in light of international law.
