LAWS2270 Law in the Global Context - HD and Dean's List Full Course Notes

Description

HD and Dean's List Extensive Complete Course Notes. Covering every topic and lecture for the whole term. Topics covered: Part 1, Classes 1 to 5 (Foundations of International Law): Course overview and methodology (three case studies: Russia and Ukraine, Julian Assange, Castel Electronics v TCL Air Conditioners; non-legal context matters; how a question is approached is as important as what is said). Globalisation and law (five dimensions and legal implications table: people, global trade and investment, international organisations, digital data, climate and environment). Five foundational concepts (states as primary subjects, sovereign equality, territorial sovereignty, consent as basis of obligation, consent to jurisdiction). Is international law really law: Megret's five-position framework (denier: no centralised enforcement or legislature or compulsory jurisdiction; idealist: universal moral norms; apologist: serves state interests; reformist: imperfect but improvable; critic: perpetuates structural inequalities; each position captures genuine features; approach is genuinely normative yet shaped by power asymmetries; comparison with domestic law lacking centralised legislature executive and judiciary; Bull's phrase of anarchical society; SS Lotus principle PCIJ 1927 on freedom as default). Sources of PIL under Art 38(1) ICJ Statute (four sources: (a) international conventions, (b) international custom as general practice accepted as law, (c) general principles of law recognised by civilised nations, (d) judicial decisions and teachings as subsidiary means). Treaties (VCLOT 1969 Art 2(1)(a) definition, entered into force 1980, 116 parties as of 2025, oral agreements may still bind, designation irrelevant; key terminology table: signature, ratification, accession, succession, entry into force, pacta sunt servanda; treaty-making three-stage process under VCLOT Arts 9 to 24: adoption of text, expression of consent, entry into force; treaty interpretation Arts 31 to 32: primary rule of ordinary meaning in context and object and purpose, supplementary means for ambiguity or absurd result; invalidity: Art 52 void if force used in violation of UN Charter, Art 53 void if conflicts with jus cogens, Art 64 new jus cogens norm). Customary international law (CIL) (Art 38(1)(b), two elements under ILC Draft Conclusions 2018: general practice as objective element with acts omissions assertions by states, and accepted as law as subjective opinio juris with traditional strict approach from SS Lotus and less strict approach from Judge Sorensen's dissent in North Sea Continental Shelf Cases, onus of proof from Asylum Case ICJ 1950; jus cogens: peremptory norms not overrideable by treaty, Art 53 VCLOT, erga omnes generally associated, recognised examples; erga omnes obligations from Barcelona Traction Light and Power Company Ltd ICJ 1970: distinction between obligations to international community and obligations vis-a-vis another state, four examples; ARSIWA Arts 48 and 41 on non-injured states and serious breaches; persistent objector rule: must object during formation consistently and clearly, too late after crystallisation). General principles and subsidiary sources (Art 38(1)(c) as gap-fillers and procedural architecture; Art 38(1)(d) no stare decisis under Art 59 but ICJ generally follows earlier judgments; domestic judicial decisions may constitute state practice; soft law including UNDRIP and Rio Declaration as non-binding but guiding). Part 2, Class 3 (Actors, Institutions and International Dispute Settlement): Actors table (states with full legal personality and Montevideo criteria: permanent population, defined territory, effective government, capacity to enter international relations; international organisations with derivative personality from Reparations for Injuries ICJ Advisory Opinion 1949; individuals under ICC and human rights law; NGOs; transnational corporations under investor-state arbitration and UN Guiding Principles on Business and Human Rights). UN six principal organs table (Security Council: 15 members, P-5 veto, procedural 9 votes no veto Art 27(2), substantive 9 votes including all P-5 Art 27(3), Ch VI non-binding Ch VII binding; General Assembly: 193 members 1 vote, 2/3 majority on important questions, Uniting for Peace Resolution; ICJ: 15 judges 9-year terms, advisory and contentious jurisdiction, Art 59 binding parties only; Secretariat; ECOSOC; Trusteeship Council dormant since 1994). Security Council powers and limitations (Ch VI non-binding, Ch VII binding including use of force, Art 39 broad trigger, Art 42 authorisation, P-5 veto disabling mechanism when permanent member is aggressor, Uniting for Peace Resolution GA Res 377 1950 for deadlock). ICJ jurisdiction (only states, consent-based, Art 59 binding parties only, no formal stare decisis; four bases: special agreement compromis, compromissory clause Art 36(1) with Genocide Convention Art IX example, optional clause declarations Art 36(2) with reservations and reciprocity, forum prorogatum Art 38(5); Norwegian Loans Case France v Norway ICJ 1957: reciprocity principle in optional clause declarations, France's domestic jurisdiction reservation invoked by Norway against France; Australia's optional clause declaration with three exceptions: other agreed method, maritime delimitation, acceptance within 12 months of filing). ICJ incidental proceedings (provisional measures Art 41: four cumulative conditions of prima facie jurisdiction, link to rights protected, plausibility with irreparable prejudice risk, urgency; binding from Germany v USA LaGrand ICJ 2001; preliminary objections within three months of memorial, proceedings suspended, grounds including lack of jurisdiction, no dispute, admissibility, third party rights). Other international courts and tribunals table (ITLOS under UNCLOS; ICC with complementarity principle for individuals on genocide crimes against humanity war crimes aggression; WTO dispute settlement with Appellate Body currently defunct; regional human rights courts including ECHR, Inter-American, African; investor-state arbitration ICSID UNCITRAL PCA; Special Tribunal for Aggression created 25 June 2025 for Russia-Ukraine). Part 3, Class 5 (International Law and Australian Domestic Law): Theoretical frameworks table (monism: single system automatic domestic effect, exemplified by Argentine Constitution Art 31; dualism: separate systems requiring transformation, Australia essentially dualist; incorporation vs transformation). How Australia becomes bound (by treaties: executive enters and ratifies without parliamentary approval, JSCOT process requires tabling and National Interest Analysis; by custom and general principles: generally bound regardless of support unless persistent objector). Implementation in Australian domestic law (from international law perspective Australia is the state responsible; cannot rely on internal law including Constitution or federal structure; s 51(xxix) external affairs power; Koowarta v Bjelke-Petersen (1982) 153 CLR 168: Racial Discrimination Act 1975 Cth implementing ICERD upheld under s 51(xxix), confirmed external affairs power empowers implementation overriding inconsistent state law). Status in Australian domestic law: treaties (dualism, not directly invocable until transformed by legislation; two indirect effects: (1) statutory interpretation presumption that Parliament intends consistency from Polites v Commonwealth HCA 3, rebuttable by clear unambiguous statutory language; (2) administrative decision-making: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273: ratification creates legitimate expectation of consistency, procedural fairness requires notice if decision-maker proposes to depart, subsequently cast into doubt by Ex parte Lam (2003), limitation that it is procedural not substantive). Customary international law in Australian domestic law (complex but essentially dualist, CIL not automatically incorporated, recognised limited source of common law subject to overriding statute; Nulyarimma v Thompson FCA 1192 96 FCR 153: genocide not imported into Australian common law, jus cogens does not automatically create criminal offences, Parliament must legislate). Parliamentary supremacy (Al-Kateb v Godwin (2004) 219 CLR 562: indefinite detention upheld despite ICCPR prohibition because legislation expressly authorised it, subsequently overturned in NZYQ v Minister for Immigration (2023) on constitutional not international law grounds; Dietrich v The Queen on ICCPR Art 14 relevance to common law development). Australian domestic law's effect on international law (five ways domestic law contributes: state practice for CIL from Arrest Warrant Case ICJ 2000 para 58, evidence of general principles, guide to interpreting PIL from Barcelona Traction ICJ 1970 para 50, subsidiary means of determination, may amount to breach of international law including Phillip Morris Asia challenge to Tobacco Plain Packaging Act 2011 Cth). Part 4, Classes 6 to 9 (Case Study 1: Russia and Ukraine): Self-determination Class 6 (political origin from Wilson's Fourteen Points 1918 and US Declaration of Independence; legal status through Art 1(2) UN Charter, Art 55 UN Charter, Arts 73 and 76(b), GA Res 1514 XIV 1960, Common Art 1 ICCPR and ICESCR, GA Res 2625 XXV Friendly Relations Declaration 1970; context and legal position table: decolonisation and alien domination with three modes from GA Res 1541, non-colonial contexts with only internal self-determination and remedial secession contested, indigenous peoples under UNDRIP 2007 Arts 3 4 and 46; remedial secession as contested doctrine, ICJ Advisory Opinion on Kosovo 2010 deliberately avoiding ruling; Re Secession of Quebec Supreme Court of Canada 2 SCR 217: three conditions for secession right, demands including colonial, alien subjugation or denial of all meaningful internal self-determination, most comprehensive judicial treatment; application to Crimea: why 2014 annexation was unlawful: referendum under military occupation, Western Sahara ICJ 1975 requiring free and genuine expression, Ukraine not denying meaningful participation, Russia's own prior violation of Art 2(4), 10-day notice period without international supervision; GA Res 68/262 27 March 2014: 100 in favour, 11 against, 58 abstentions, affirmed Ukraine's sovereignty and declared referendum having no validity; Western Sahara Advisory Opinion ICJ 1975: historical ties exist but no sovereignty, free and genuine expression required, integration requires freely expressed wishes through informed and democratic processes impartially conducted). Prohibition on the use of force Class 7 (Art 2(4) UN Charter full text, widely accepted as jus cogens; jus ad bellum vs jus in bello IHL table; use of force vs armed attack distinction: lower vs higher threshold; two lawful exceptions: collective security under Ch VII Arts 39 to 42 with veto disabling mechanism, and individual or collective self-defence Art 51 with five requirements; self-defence in detail: threshold from Nicaragua v USA ICJ 1986 on gravity scale and consequences, attribution and effective control test, growing but contentious support for non-state actors, anticipatory or pre-emptive self-defence and Caroline test on imminent overwhelming no choice no moment, Australia's Sir Daniel's formulation adding six factors; Russia's three justifications table: self-defence against NATO expansionism, protection of Russian nationals against genocide, collective self-defence of Donetsk and Luhansk at their request; western hypocrisy argument and international legal response including tu quoque not a recognised defence; Green Henderson and Ruys academic commentary on jus ad bellum as universal benchmark; UNSC Draft Resolution S/2022/155 vetoed by Russia, UNGA Resolution ES-11/1 2 March 2022: 141 in favour, 5 against, 35 abstentions, UNGA Resolution ES-11/6 2023). Ukraine v Russia at the ICJ Class 8 (why Genocide Convention: no optional clause declarations, Genocide Convention Art IX as compromissory clause; Ukraine's lawfare strategy filed 26 February 2022 two days after invasion: negative declaration strategy denying genocide premise rather than claiming Russia committed genocide; provisional measures order 16 March 2022: prima facie jurisdiction established, plausibility of not being subjected to military operations, irreparable prejudice inherent, order 13:2 to immediately suspend military operations, Russia did not comply; preliminary objections 2024: Court divided case into two aspects, upheld jurisdiction on declaration aspect 12:4, dismissed jurisdiction on use of force aspect 12:4 as Convention does not regulate interstate use of force; lawfare table of other Ukraine-related proceedings: WTO, ITLOS UNCLOS arbitration, ECHR, ICC with pre-trial arrest warrants for Putin and Commissioner for Children's Rights, investor-state tribunals, Special Tribunal for Aggression). Sanctions Class 9 (DFAT definition, three categories table: retorsion as unfriendly but lawful with no justification needed from Nicaragua v USA ICJ 1986 para 276, countermeasures as internationally wrongful acts in response to prior wrongful act with five ARSIWA requirements from Gabcikovo-Nagymaros Project Hungary/Slovakia ICJ 1997, UNSC authorised sanctions as binding on all UN members; universal countermeasures and non-injured states: ARSIWA Art 48 on erga omnes breaches, Art 54 as saving clause with current law still uncertain; when sanctions potentially unlawful: countermeasures by non-injured states contentious, illegitimate purpose, disproportionate, human rights impact from Joyner and EU Kadi litigation, secondary sanctions contentious; Australia's sanctions regime: Autonomous Sanctions Act 2011 Cth s 4 definition, application to Australia activities and overseas Australian citizens and flagged vessels, two main types: targeted financial sanctions with asset freeze and travel bans, restrictions on goods services and commercial activities; criminal offence and strict liability for bodies corporate, exemptions via sanctions permits; Russia-specific 2022 onwards measures). Part 5, Classes 10 to 13 (Case Study 2: Julian Assange): Key timeline table (2010 through 2024: WikiLeaks publications, Swedish EAW, UK proceedings, 2012 entry into Ecuadorian embassy, 2015 WGAD arbitrary detention finding, 2018 US indictment under Espionage Act, 2019 arrest, 2021 Baraitser refusal of extradition on mental health grounds, 2021 Court of Appeal reversal after US assurances, 2022 UK Supreme Court refusal of permission, 2024 King's Bench refusal, plea deal pleading guilty to one count of conspiracy to obtain and disclose national defence information, returned to Australia). General principles of extradition (no general obligation under international law, five key principles: double criminality, specialty, political offence exception, human rights bar from non-refoulement and Art 3 ECHR and Art 7 ICCPR and Art 3 UNCAT, nationality exception, double jeopardy). European Arrest Warrant: a comparative law problem (Council Framework Decision 2002/584/JHA, mutual recognition principle, 32 listed offences no full double criminality test, mandatory and optional refusal grounds; Assange v Swedish Prosecution Authority EWHC 2849 (Admin): whether Swedish prosecutor constitutes judicial authority, Framework Decision does not require a court specifically, mutual recognition requires wide interpretation; Assange v Swedish Prosecution Authority UKSC 22: 5:2 dismissal, comparative law analysis across EU member states, Lord Mance and Lady Hale dissent would have referred to CJEU, tension between national interpretation and uniform EU law). Diplomatic protection (espousing national's claim, traditionally exclusive state right from Mavrommatis Palestine Concessions PCIJ 1924; three requirements from ILC Draft Articles 2006: nationality of claims with genuine connection from Nottebohm Case ICJ 1955, exhaustion of local remedies with exceptions, internationally wrongful act; discretion not right of individual; ILC Draft Art 19; Assange context with Australia's reluctance and Albanese government's role in 2024 plea deal). Diplomatic asylum (granting asylum in diplomatic premises distinct from territorial asylum; not recognised in general international law as a right from Asylum Case Colombia v Peru ICJ 1950: Colombia failed to prove constant and uniform regional custom; Vienna Convention on Diplomatic Relations 1961 Art 22 inviolability creating structural stalemate; Den Heijer Leiden Journal of International Law 2013: no title in general international law or human rights law for Ecuador, no legal route for UK without entering embassy, Assange's fate resembles historical precedents, structural tension between territorial sovereignty and diplomatic inviolability, equilibrium creates incentives for diplomatic resolution; WGAD Opinion 2015: arbitrary detention violating Arts 9 and 10 UDHR and Arts 7 9 10 ICCPR, UK and Sweden rejection arguments, WGAD response on state-imposed legal process, not formally binding but political weight). Extradition to USA (Espionage Act 1917 and computer misuse charges, four issues: political offence exception and UK-USA Extradition Treaty 2003, First Amendment freedom of speech with US assurances accepted, human rights bar with Baraitser refusal reversed after assurances, resolution with plea deal in US District Court for Northern Mariana Islands and time served sentence). Part 6, Classes 14 to 16 (Case Study 3: Private International Law and International Arbitration): What is PIL (conflict of laws or PIL, function to assist forum court, primarily civil law relationships, Tilbury Davis and Opeskin 2002). Three main questions (jurisdiction: which courts can hear the case; choice of law: which law does the forum apply; recognition and enforcement: when will foreign judgments and awards be recognised). Why PIL matters (different legal systems with different jurisdictional rules, substantive rules and enforcement conditions; PIL affects every cross-border commercial transaction). Law districts in Australia (two dimensions: interstate and Australia-foreign). Sources of Australian PIL (Commonwealth Constitution, Commonwealth and State Territory statutes including International Arbitration Act 1974 Cth, Foreign Judgments Act 1991 Cth, Foreign Proceedings (Excess of Jurisdiction) Act 1984 Cth; common law rules; treaties implemented by statute). Jurisdiction of Australian courts (common law presence rule for service within jurisdiction; service outside jurisdiction under UCPR Pt 11 in specified categories: contract made in NSW or to be performed or governed by NSW law, tort in NSW, real property in NSW, injunction or declaration relating to NSW acts; forum non conveniens: Voth v Manildra Flour Mills (1990) 171 CLR 538: clearly inappropriate forum test, onus on defendant, more demanding than English test; Spiliada Maritime Corp v Cansulex AC 460: clearly more appropriate foreign forum test, followed by plaintiff justice safety valve). Choice of law (four-step process: Step 1 classification under lex fori, Step 2 connecting factor identifying lex causae, Step 3 expert evidence on foreign law as question of fact, Step 4 apply applicable law subject to renvoi and public policy; connecting factors by issue table: proper law of contract for validity interpretation and effect, putative proper law for formation, lex loci delicti for tort from Regie Nationale des Usines Renault SA v Zhang (2002), lex domicilii for succession to movables, lex situs for succession to immovables, lex loci celebrationis for marriage formal validity; party autonomy: express implied or objective proper law, relevant factors for objective proper law; limitations on party autonomy including s 67 Australian Consumer Law and Insurance Contracts Act; renvoi definition, remission and transmission, Australia generally rejects in contract and tort but accepts in succession, avoidable by specifying domestic law; public policy exception as very narrow, must be fundamentally offensive not merely different). International arbitration (why parties choose arbitration: confidentiality, flexibility in arbitrators, neutrality, finality, international enforceability; New York Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958: 159 parties as of 2018, Arts II III IV V; Art V seven grounds for refusing enforcement including incapacity, lack of notice, beyond scope of arbitration agreement, composition contrary to agreement, award not binding or set aside, non-arbitrable subject matter, public policy exception narrowly construed; International Arbitration Act 1974 Cth: s 7 mandatory stay of court proceedings breaching arbitration agreement, expanded writing requirement for electronic communications, Part III UNCITRAL Model Law including Kompetenz-Kompetenz; arbitrability: widened considerably, most commercial disputes including s 18 Australian Consumer Law claims, competition, corporations, IP where no more-than-inter-partes validity ruling; criminal employment and family law remain non-arbitrable from Mortensen Garnett and Keyes 2019; broad construction of arbitration agreements from Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) Full Federal Court to refer as many claims as possible). TCL Air Conditioner case (Castel Electronics v TCL Air Conditioner Zhongshan background: distribution agreements, CIETAC arbitration clause, Castel obtained awards, TCL resisted enforcement; High Court TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia HCA 5: TCL challenged constitutional validity of s 16(1) International Arbitration Act, argued judicial power impermissibly vested in arbitral tribunals impairing institutional integrity of Federal Court under Art 35 Model Law; held French CJ Hayne Crennan Kiefel Bell Gageler JJ: Model Law does not vest judicial power in arbitral tribunals, parties contractually chose arbitration, limited review does not impair institutional integrity, no error of law review but not a constitutional defect; significance for constitutional basis of international arbitration in Australia; narrow public policy exception: TCL raised Art V(2)(b) on Australian consumer law, rejected as requiring something fundamentally offensive not mere differences from what Australian court would have decided). Recognition and enforcement of foreign judgments at common law (debt cause of action on judgment, three requirements: jurisdiction recognised by Australian PIL, finality as res judicata, fixed sum; defences: fraud, public policy, natural justice, conflict with prior Australian judgment; Foreign Judgments Act 1991 Cth: statutory registration for designated countries with reciprocal arrangements, narrower refusal grounds).