Law, Governance and Sustainability Exam Notes PDF 2024

**[Law, Governance and Sustainability Exam Notes]** Elliana Galvin - 2024 **EXAM DETAILS** structure and content: 30 marks for short answer 20 marks for reflection Question may be around a treaty Reflection on question 2 print out criteria sheet unlimited resources 4Rs bring with you templ...

**[Law, Governance and Sustainability Exam Notes]** Elliana Galvin - 2024 **EXAM DETAILS** structure and content: 30 marks for short answer 20 marks for reflection Question may be around a treaty Reflection on question 2 print out criteria sheet unlimited resources 4Rs bring with you template it and bring it in - know what values they are relatng - list of values reasoning; small paragraphs for all the sustainability minset principles - don't have to use a minset principles (usitlise to BRING INTO EXAM \*use for authority\* Vienna law of convention of treaties. Un charter, statute of the ICJ LOOK AT CASES IN LECTURES -- exam questions may be used Look at readings that were mentioned in tutorials practice and know. **[Week 7 -- An Introduction to Public International Law ]** International Law is a system - It is a set of rules, agreements and treaties that are binding between countries (states) and other international actors. Crawford: '*Public international law is a worldwide legal system which regulates the conduct of states and other actors*' - Fundamentally designed to **promote cooperation among states** to address issues that **transcend national borders** and impact the **global community**. It safeguards our **collective well-being** by establishing norms and rules that **all states agree to follow**. Main concepts in Public International Law **[Concept of Sovereignty]** - States have a right to govern themselves without external interference. Respects autonomy of states and right to self-determination. **[United Nations Charter]**: - Article 2(1): Sovereign Equality - Article 2(4): Prohibition of the Use of Force - Article 2(7) Non-Intervention in Domestic Affairs. Sovereignty is embedded in our primary piece of international law the United Nations Charter in lots of different ways. But while sovereignty is a foundational principle of public international law and the United Nations Charter, it is balanced by other principles, such as the commitment to international peace and security, human rights and co-operation among states. **[Sovereignty = Consent-based law ]** - International law is an infringement on sovereignty. - When states sign a treaty they willingly give up an aspect of their sovereignty or accept limitations to it - This principle of consent ensures that states voluntarily commit to international agreements thus maintaining their sovereign authority - However, once a state has consented, they agree to be bound by their agreements. This is known as the doctrine of *pacta sunt servanda.* **[Other characteristics of the international system. ]** \- Debate on whether IL is natural (laws are just manifestations of what\'s inherently wrong/right) or positive law (things are legal until people say they are illegal) \- There is no government to enforce public international law - enforcement relies on international pressure, cooperation from states etc. \- States are considered equal - each state has sovereignty - however this is usually not the case due to power dynamics **[International Legal Personality ]** Non-state actors may in certain circumstances be considered subjects of international law: *Reparations Case* where the UN was found to be an actor in international law. Reparations Case: Count Bernadette, a mediator for the UN, was assassinated in Jerusalem. The UN sought reparations so they sought damages from Israel for the damages that Bernadette's family suffered. The question arose as to whether the UN as an international organisation actually had the requisite legal personality. Did it have standing to bring a claim for damages against Israel to the International Court of Justice on behalf of it's injured agent. Question posed: Whether the UN possessed enough international legal personality to do that and the ICJ concluded that the UN does actually possess international personality and it held that the UN is an international legal person because it is necessary for it to be a have that role under international law for the fulfilment of its functions and the purposes outlined in its charter. **[United Nations ]** Purpose of the UN is found in ***Article 1 of the UN Charter***:\ 1. Maintain international peace and security;\ 2. Develop friendly relations among nations based on respect for the principle of equal rights and self-determination;\ 3. Achieve international co-operation in solving problems of economic, cultural, humanitarian character;\ 4. To be a center for harmonizing the actions of nations in the attainment of these common ends.\ It pursues these objectives through work in a wide range areas:\ Peacekeeping, peace building and conflict prevention,\ Sustainable development, climate change and environmental protection,\ Human rights, gender equality, women's rights, democracy,\ Global health and food security,\ Refugee protection, disaster relief, and humanitarian assistance,\ Counter-terrorism, and\ Disarmament & non-proliferation. **[The UN Charter]** Currently 193 member states of the UN + two observer states. Membership of the UN is governed by Chapter III.\ Charter is superior instrument of international law: **[Article 103]** provides that in the event of a conflict between the UN Charter and another international agreement, the UN Charter is to prevail.\ Amendment of the Charter requires the consent of all five permanent members (US, UK, Russia, France and China) of the Security Council. **[Week 8: Making International Law for Sustainability]** Sources of International Law No fixed formula for creating international law:\ ***Article 38(1)*** of the Statute of the International Court of Justice provides a list of 4 main sources: **1: international conventions**, whether general or particular, establishing rules expressly recognized by the contesting states (e.g. treaties)\ **2: international custom**, as evidence of a general practice accepted as law (e.g. customary international law the practices and behaviors of states)\ **3:general principles of law** recognized by civilized nations\ 4: subject to the provisions of Article 59, **judicial decisions** and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law\ Exception to the requirement of consent: ***Jus cogens norms*** are fundamental principles of international law that are universally recognized and accepted as binding on all states. These norms cannot be violated or overridden by any agreement or treaty. Examples include prohibitions against torture, genocide, and slavery. They reflect the most basic values of the international community. 2024 ICJ Advisory Opinion: in cases of foreign occupation, the right to self-determination is *jus cogens.* **[1- International conventions (treaties)]** \- International agreements voluntarily entered into by States that give rise to internationally binding rights & obligations. \- Cover vast topics (e.g. trade deals, territory exchange, human rights etc) \- Bi-lateral (between two states), multi-lateral (multiple states). **[Important treaties]** - **1969 Vienna Convention on the Law of Treaties (VCLT)** Defines treaties as agreements in written form concluded between states and governed by international law. - **Article 26**: Only binding on parties to treaties - **Article 35 & 36**: For third party obligations consent must be expressed and in clear writing for third party rights consent presumed so long as contrary not limited. Customary international law applies to treaties with or between other entities with international legal personality or oral treaties. **[Multilateral treaties ]** Often preceded by a conference, with representatives from various states, where the terms of the treaty are negotiated and then the treaty is left open for signature\ States can be part of this treaty making process and influence final terms of the treaty but not agree to be bound at the end\ 9 Core International Human Rights treaties and a large volume of agreements that directly or indirectly relate to the environment\ Fragmented and lack of overarching structure for environmental protection **[Core Concepts of Treaties]**\ - Signature (first stage in the process in which the state is bound -- however a signature alone is not enough to fully legally bind a state to the treaty) \- Ratification (indicates consent to be bound. Usually involves a domestic process followed by official notice) \- Between signature and ratification \- Article 18 VCLT 'interim obligation': state may not engage in behaviour which would 'defeat the object and purpose' of the treaty **[Concept 2: Entry into force]**\ - Often provided for in the treaty itself e.g. BBNJ will enter into force 120 days after 60th states ratifies (agrees to be bound)\ - Can have different entry into force dates for different states Reservations\ -Unilateral acts by individual states where they modify or exclude part of a treaty e.g. State agrees to be bound by the treaty except for Article X\ -Rationale: increased participation e.g. better to have 100% of states consent to 90% of the treaty than 10% of the states consent to 100% of the treaty\ o Reservations are not permissible if they are incompatible with the object and purpose of a treaty or if the treaty itself provides that reservations are not permissible / reservations to particular provisions are not permissible **[Concept 3: Interpretation ]** **[3 Main methods:]** **Textual** (interpretation is about discovering the objective meaning of the text -- since the language can be vague it's difficult to discern a singular objective meaning of the text. Problematic because states can adopt the meaning that suits them the most and call it the 'objective meaning') **Historical** (Discovering what the authors or original state parties intended can be problematic as we do not want to forced to live by standard or intent of the drafters who for example could have written it 50 years ago and adopted different societal standards) **Teleological** (realizing the goals of the author -- able to develop with the times -- problematic as the interpretation of the treaty adopted today may be very different then what the parties believed they were originally agreeing to) -Article 31 VCLT: Adopts a middle ground between the textual and theological method interpreted in accordance with ordinary meaning to be given to the words in their context and in the light of the treaty's object and purpose -Concepts, such as sustainable development, in preambles: non-binding but can be used for interpretation **Withdrawal**\ -Treaty provides if and how withdrawal possible - normally notice of withdrawal and 'wait period' before withdrawal comes into effect\ -Article 56 VCLT: treaty silent then withdrawal not permitted unless e.g. right to withdraw implied **[Customary International Law]** **Definition**: Rules based on the general principles of states where such practice is accepted as legally binding. **2 Main requirements**: 1 - General practice. 2 -- Practice must be accepted as law. Creates a legal obligation (opinio juris) 1. General Practice: Relevant elements: Widespread nature, length of time, consistency of practice. ***2 - Opinio juris --*** Accepted as law and not simply practice based on convience or habit May be difficult to identify customary international law Sample evidence: General assembly resolutions, domestic laws, public statements **Example of customary international law**: Article 51 of the UN Charter provides for the right to self-defense and this is a treaty recognition of this right. However separately there is a right to which exists in customary international law and which is developed through the behavior of states over several century and predates the UN Charter in 1945. This means that you have two sources of the right to self defense now, since customary international is not written down. It can sometimes be difficult to identify or define the practices or the precise nature of the customary international law rule, and this is a weakness of customary international law. **[Persistent objector principle ]** - State not bound by customary international law if refuses consent by consistently objecting to the emerging rule. - Failure to object can be regarded as consent e.g consent to customary international law can be tacit/implied. - Exception: cannot object to jus cogens norms Where practice changes a new rule can develop - Lawbreaking v Lawmaking: Distinction between breaking rules and creating new norm/evolving norm. **[Context in sustainability]** Is there customary international law on sustainable development? (yes and no) - Wealth of treaties and soft law referencing sustainable development. - Frequent use of a term does not amount to general practice and a broad acceptance of an overarching goal may not be sufficient to create specific legal duties. - Greater acceptance of: - Principle of integration and reconciliation - Precautionary principle (2011 Seabed Dispute Chamber of the International Tribunal on the Law of the Sea advisory opinion) - 'No harm' principle and requirements to provide information (Trial Smelter arbitration case, Principles 18 & 19 of the Rio Declaration) **General Principles of law** - General principles of law are often used to fill in gaps in international law so courts do not have to declare it non-liquet (meaning 'not clear) - Examples: good faith, no crime without a law, reparation as a form damages - Often based on grounding principles rather than express 'adoption' or 'legislation', which means less clear link to state consent - Debate on whether sustainable development as a whole is a general principle and probably stronger support for sub-principles, such as, the precautionary principle **Judicial Decisions** - The sources of international law are divided into two categories which are the primary sources and subsidiary sources. Primary sources are considered as the law-making while subsidiary sources considered only as law determining. - Judicial decisions and expert opinions from different countries can be used as additional subsidiary sources to help determine the rules of law, as outlined in Article 59. - Article 59: ICJ decisions bind parties to the dispute but do not have precedent effect - Line between making and applying the law can be difficult to ascertain in practice - Numerous courts and tribunals with growing jurisprudence in international law - Most highly qualified publicists is relatively unique to international law **[Week 9 - International Law in Australia]** **[International Law Perspective]** International law perspective on relationship between international law and domestic law - International law, and not domestic law, determines whether state action is internationally wrong - States cannot rely on their own domestic law to justify breaches of international law and obligations - See, for example, Article 27 VCLT; Article 3 ILC's Articles on Responsibility of States for Internationally Wrongful Acts - International law perspective has been endorsed by international courts and tribunals e.g. ICJ's **[Domestic Law Perspective]** Domestic law perspectives on relationship between international law and domestic law\ vary\ However, there are two main theoretical approaches:\ - Monist\ - Dualist \- Each state ***determines which approach they will adopt***. Often provided for in the state's constitution. **[Monism]** International law and domestic law are part of a single legal system\ 1. International law is **automatically part of the domestic law** of the state\ - Known as the incorporation doctrine (if a state ratifies an international treaty then the international treaty automatically and immediately forms part of its domestic law) 2\. International law can be directly **invoked** by people in the state and **applied by the court**s\ - Self-executing / direct effect / directly applicable rules\ - Direct effect -- can depend on parties' intentions (Jurisdiction of the Courts of Danzig) 3\. Domestic law may be invalid if it **contradicts international law** because international law **has priority/prevails** over domestic law Challenge/Issue: Can overrule or set aside democratically enacted legislation Dualism International law and domestic law are regarded as distinct legal spheres\ International law and domestic law operate on different levels (between states v within a state) and for different subject matter (e.g. war v domestic crimes) and govern different\ actors (states v individuals)\ 1. International law is **NOT automatically part of the domestic law**\ Transformation doctrine: to have direct effect domestically, international law must be transformed into domestic law (e.g. legislation passed to give effect to international\ rights and duties)\ 2. International law can NOT be directly invoked by people in the state or applied by the\ courts\ - No international rule is 'self-executing' or has 'direct effect'\ 3. Domestic law may NOT be invalid because it contradicts international law \- Challenge/Issue: discrepancy between the state's domestic law and the state's\ international commitments can led to conflict and repercussions. **[Limits of the theories]** States are generally not purely monist or dualist. - Civil law countries tend to be more monist and common law countries tend to be more dualist - Can adopt a different approach depending on the source e.g. more monist approach for customary international law and dualist approach for treaties - Domestic legal systems' interaction with international law wider than the monism/dualism 'reception' of international law debate e.g. engagement with conceptual concepts like statehood and sovereignty **[Australian approach]** Australia predominately takes a dualist approach\ International law must be transformed into domestic law to have a direct effect\ 'It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law, unless those provisions have been validly incorporated into our municipal law by statute' (Teoh)\ Separation of powers: Executive has power to make/ratify treaties and create international obligations but they do not have direct effect in domestic law until transformed by legislation **[Transformation]** International law can shape Australian domestic law when international law is transformed into domestic law\ - Rewrite domestic law to mirror international rights and obligations e.g. changes to the Criminal Code to reflect Rome Statute of the International Criminal Court\ - Can adopt the same language as the treaty\ - Can simply refer to the treaty obligations\ - Can depart from the language of the treaty that intended to transform\ - Can refer to the treaty but fail to give legal effect to its provisions **[Indirect Influence and Effect ]** Non-transformed international law can still influence and have an indirect effect on Australian domestic law, including:\ 1. **[Statutory interpretation]**\ International law can be used to resolve ambiguity or uncertainty in domestic legislation \- Acts Interpretation Act -- permits use of treaties as extrinsic material; presumption in statutory interpretation that legislation is consistent with international obligations **[2. Developing the common law]**\ - International law can influence the development of Australian common law \- The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule (Mabo) **[3. Creating legitimate expectations in administrative decision making]**\ - Teoh: High Court has recognized that Australia's ratification of a treaty could give rise to a legitimate expectation that a Minister and administrative decision-makers would comply with the obligations imposed by that treaty in making executive decisions implementing Australia law **[4. Constitutional interpretation]**\ -International law may be a tool of constitutional interpretation -Means that international law is relevant for the domestic lawyer **[Week 10 - Dispute Resolution in International Law]** Obligation contained in the UN Charter to resolve disputes peacefully. Article 2(3) United Nations Charter states: "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered." Article 33 United Nations Charter states: 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all seek a solution by **[negotiation, enquiry, meditation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements]** or other peaceful means of their [own choice. ] 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. **[Article 33: Negotiation (simplest and most cost effective)]** Negotiations are almost always conducted between **two parties with no outside help**. They can be beneficial because the negotiation can **remain private** and be conducted at a time & place chosen by the parties. Because of this and their informality there is usually a good chance of agreement, although **they can prove difficult when the facts of a disagreement are disputed** and/or there is a **power imbalance between the parties**. Negotiation is often required as a first step in the dispute resolution process and is certainly required before referring a dispute to international courts. The results of a negotiation are not binding. **[Article 33: Enquiry]** Enquiry is a helpful process when there is a **disagreement about facts and circumstances**. It involves **appointing a third person to undertake an investigation** or 'fact-finding' mission and the parties may agree to be bound by the results of that process. **[Article 33: Meditation (including a good office)]** Meditation involves **appointing a third party to assist negotiations**. They might provide suggestions on **resolution, or alternative avenues and attempt to reconcile conflicting positions**. Good offices is when a third party becomes involved to get the two parties to talk to each other, for example where they are reluctant to even sit down and hash out a negotiation. **Neither of these processes are binding.** **[Article 33: Conciliation and Arbitration. ]** 1. [Conciliation] is like meditation but often involves a more formalized process such as **appointment of a formal body or conciliator**. The results are **not binding.** 2. [Arbitration]. The International Law Commission defines arbitration as 'a prodecure for the settlement of disputes between states by a **binding award on the basis of law** and as a result of an undertaking voluntarily accepted'. It differs from formal court proceedings because the parties **get to choose the arbitrator** and the **rules of the arbitration** such as the **jurisdictional basis and the rules of evidence.** **[Diplomatic channels]** Ongoing communication between states + diplomatic representatives to **deescalate conflicts and resolve issues,** and back-channel diplomacy is a variant where **negotiations occur through unofficial or confidential channels** such as what happened in the Cuban Missile Crisis Resolution. **[Track II Diplomacy]** Unofficial and informal interactions between **nongovernmental actors or influential individuals from conflicting states** often helping to build trust. Example: Geneva Initiative for Israel and Palestine. **[Preventative Diplomacy]** Efforts by states, regional organizations or the United Nations to **intervene before disputes escalate into conflicts**. The UN engages in preventative diplomacy such as in the UN involvement in Macedonia in the 1980s to prevent spillover of conflict from the Balkans. **[Referrals to International Organisations (IO)]** States can refer disputes to bodies like the UN Security Council. **[Moral or Political Pressure]** By leveraging public opinion, **international media or collective pressure from other states or non state actors.** For instance, the European Union has applied political pressure to resolve disputes in the context of human rights and trade disagreements **[Cultural and Sports Diplomacy]** In the context of the Olympics some countries have used **cultural exchanges or sporting events to improve relations and ease disputes** or alternatively to **make a point about not attending an event like the Olympics** where there\'s an international conflict going on. One well known example is the ping pong diplomacy between the US and China in the 1970s which helped relations between the countries that turned into judicial settlement. **[Judicial Settlement]**. There are many international courts and tribunals that address different kinds of disputes. They include but are not limited to: - The International Court of Justice (ICJ) - The International Criminal Court (ICC) - The International Tribunal for the Law of the Sea - The Permanent Court of Arbitration - The Caribbean Court of Justice - The European Court of Human Rights - The International Military Tribunal - The Inter-American Court if Human Rights There are also specialist, temporary courts that are set up to resolve particular issues. **[Which Court is appropriate? (when facing a problem question)]** This depends on what your dispute is, and which court/tribunal has jurisdiction.\ Eg., Article 27 of the Convention on Biological Diversity states:\ 3. When ratifying, accepting, approving or acceding to this Convention, or at any time\ thereafter, a State or regional economic integration organization may declare in writing to the Depositary that for a dispute not resolved in accordance with paragraph 1 or paragraph 2 above, it accepts one or both of the following means of dispute settlement as compulsory: \(a) Arbitration in accordance with the procedure laid down in Part 1 of Annex II;\ (b) Submission of the dispute to the International Court of Justice **[International Court of Justice (ICJ)]** ICJ has 2 types of jurisdiction:\ 1. Contentious cases -- disputes between 2 states (eg, Nicaragua Case)\ 2. Advisory Opinions (Art 96) -- answers to legal questions referred to the Court by a UN body, usually GA (General Assembly), eg, Nuclear Weapons Advisory Opinion\ \ No compulsory jurisdiction -- requires consent of State **[Learning about the ICJ through our Case reading]** **Case Concerning Pulp Mills on the River Uruguay.** The pulp mill dispute was a dispute between Argentina and Uruguay concerning the construction of pulp mills on the Uruguay River.\ The case discussed important issues of:\ 1. Jurisdiction\ 2. Treaty Interpretation\ 3. Cross-Boundary Environmental Impacts\ 4. Obligation to undertake an environmental impact\ assessment\ 5. International Remedies **[Facts of the Case]** -The States had an agreement under the Statute of the River Uruguay, a treaty signed by the two States on 26 February 1975 regarding the joint utilisation and optimisation of the River Uruguay on their joint boundary. -Argentina alleged that Uruguay approved the construction of two pulp mills on the river without prior notification and consultation, as required by the Statute. -Argentina claimed that those mills posed a threat to the river and its environment and were likely to impair the quality of the river's waters and to cause significant transboundary damage to Argentina. **[The allegations]** - According to Argentina, the purpose of the 1975 Statute is 'to establish the joint machinery necessary for optimum and rational utliziation' of that part of the Rive Uruguay which is shared by the two states and constitutes their common boundary. - In addition to governing "activities such as conservation, utilization and development of other natural resources", the 1975 Statute deals with "obligations of the Parties regarding the prevention of pollution and the liability resulting from damage inflicted as a result of pollution" and sets up an "Administrative Commission of the River Uruguay" (hereinafter "CARU", in its Spanish acronym) whose functions include regulation and co-ordination. - Argentina submitted, in particular, that Articles 7 to 13 of the Statute provide for an obligatory procedure for prior notification and consultation through CARU for any party planning to carry out works liable to affect navigation, the régime of the river or the quality of its waters. **[Requests ]** - Argentina concludes its Application by requesting the Court to "adjudge and declare: - 1\. that Uruguay has breached the obligations incumbent upon it under the 1975 Statute and the other rules of international law to which that instrument refers, including but not limited to: **(a)** the obligation to take all necessary measures for the optimum and rational utilization of the River Uruguay; **(b)** the obligation of prior notification to CARU and to Argentina; **(c)** the obligation to comply with the procedures prescribed in Chapter II of the 1975 Statute; (d) the obligation to take all necessary measures to preserve the aquatic environment and prevent pollution and the obligation to protect biodiversity and fisheries, including the obligation to prepare a full and objective environmental impact study; (e) the obligation to co-operate in the prevention of pollution and the protection of biodiversity and of fisheries; and - that, by its conduct, Uruguay has engaged its international responsibility to Argentina; - 3\. that Uruguay shall cease its wrongful conduct and comply scrupulously in future with the obligation\'s incumbent upon it; and\ 4. that Uruguay shall make full reparation for the injury caused by its breach of the obligation\'s incumbent upon it **[The Court ]** -15 Judges\ - Since the Court included upon the Bench no judge of the nationality of the Parties, each of them exercised its right under Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case. **Issue 1**: Jurisdiction \- Argentina invoked the first paragraph of Article 60 of the 1975 Statute.\ -"Any dispute concerning the interpretation or application of the \[1961\] Treaty and the \[1975\] Statute which cannot be settled by direct negotiations may be submitted by either Party to the International Court of Justice. \- This requires that direct negotiations are a condition of ICJ jurisdiction. \- Argentina claimed that direct negotiations between the Parties had failed. **[Jurisdiction under the ICJ Statute]** 1. Consent by referral 2. All matters specially provided for in Treaties in Force. 3. Declaration (The Optional Clause) - When parties sign to the UN Charter and that declaration gets lodged with the I CJ and the Secretariat of the United Nations. And that declaration can say something like 'we agree the ICJ has jurisdiction over any matter relevant to a dispute that we are a party to, or it can be more specific. Like we agree that the ICJ has jurisdiction over matters concerning environmental issues.' If you don\'t have consent by referral and your dispute is about a treaty that doesn\'t give the ICJ jurisdiction, then you can go to the optional clauses or the declarations lodged by the parties and see if those declarations or actually give the court jurisdiction or give the necessary consent by those states for the ICJ. **Issue 2: Provisional Measures (**a procedure \"roughly equivalent\" to an interim order (which can be either a temporary restraining order or a temporary directive order) in national legal systems.) Argentina requested provisional measures:\ -to suspend the authorizations for construction of the mills and all building works pending a final decision by the Court;\ to co-operate with Argentina with a view to protecting and conserving the aquatic environment of the River Uruguay;\ and to refrain from taking any further unilateral action with respect to the construction of the two mills incompatible with the 1975 Statute, and from any other action which might aggravate the dispute or render its settlement more difficult.\ Article 41 of the ICJ Statute allows for provisional orders: 1\. The Court shall have the power to indicate, if it considers\ that circumstances so require, any provisional measures which\ ought to be taken to preserve the respective rights of either\ party.\ \ No provisional measures as:\ No imminent threat\ No irreparable harm proven\ Uruguay had given assurances that it would continue to comply with its\ environmental obligations under international law\ The court may have taken into account the economic interests of\ Uruguay and decided that immediate intervention was not justified. **[Issue 3: Determination of Dispute ]** -No doctrine of precedent\ - Consider the law and matters of equity\ **- Article 59** \- The decision of the Court has no binding force except between the parties and in respect of that particular\ case.\ **» Article 60**\ » The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.\ » The Court concluded that, by not informing CARU of the planned works before the issuing of the initial environmental authorizations for each of the mills, and by failing to notify the plans to Argentina through CARU, Uruguay had violated the 1975 Statute.\ » The Court concluded that Uruguay had not breached substantive obligations under the Statute. **Issue 4: Remedies** » Declaration of Legal Rights and Obligations\ » Cessation of Wrongful Acts\ » Restitution\ » Compensation\ » Satisfaction\ » Guarantees of Non-Repetition **[Issue 5: Enforcement]** Decisions are only binding on parties to the case (art 59) Enforcement of decisions: - Article 94(1) of UN Charter: each UN member State undertakes to comply with decisions of ICJ in any case to which it is a party - Other State parties can seek assistance from Security Council in enforcing the ICJ's decisions (article 94(2) - Example of non-compliance with ICJ decisions = Nicaragua Case. Options when a State has a compliant Must act in accordance with the UN Charter. Must refer to the Security Council if international peace and security is at risk (Article 37) Can bring to the attention of the SC or GA if the dispute may lead to international friction. Peaceful settlement under Art 33 International settlement if they have jurisdiction. **[Options when an Individual has complaint ]** No individual right to bring cases directly before international courts like the ICJ.\ But, there are mechanisms in some areas like: Human rights law (Human rights committee, regional human rights courts)\ International criminal (International Criminal Court and ad hoc tribunals)\ Investment disputes(Investor-State Dispute Settlement) The available options depend on the area of law involved, the legal instruments in place, and the mechanisms established by international or regional bodies. When international mechanisms are not available, individuals may rely on their home state to exercise diplomatic protection on their behalf. **[Week 11: Other Legal Systems]** What is a legal system\> -A set of rules, laws and institutions that governs how society operates and resolves disputes. A legal system defines rights and responsibilities and outlines the procedures for enforcing laws and ensures justice and aims to ensure justice. **Generally Include three main parts:** Law making bodies: parliaments Enforcement mechanisms: police and courts Judicial systems: interpret and apply law Legal systems reflect a countries history, cultural, values and how they maintain rights and promote fairness. **[What is a legal family? ]** Also known as a legal tradition. 'Deeply rooted, historically conditioned attitudes about the nature of law\... the role of law in \... society and the polity, the proper organization and operation of a legal system, and about the way law is, or should be made, applied, studied, perfected, and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.' -Merryman (1985) What is Legal Pluraism \'Legal pluralism\' is generally defined as a situation in which **two or more legal systems coexist in the same social field.** Sometimes a State can have had influences from many different traditions.\ A system that incorporates more than one tradition is called a 'Pluralist System'.\ This differs to systems that have only one tradition (Centrist systems).\ Some areas are incorporating many states to become a Centrist grouping, e.g. the EU Our Legal Families 'Western systems'\ Civil Law (also known as Romano-Germanic or Continental law)\ Common law\ Socialist law\ » 'Non-Western systems':\ Religious law\ Customary law **[Civil and Common Traditions ]** - Some formative differences between civil and common law families: - Civil law started in the Roman empire and spread through Europe via 'reception', and later through much of the rest of the world via colonialism. Was **based on the conceived need to have all laws written in a way that was understandable** to all people.\ Common law started in England after the Norman Conquest and was formed as a result of the King not wanting to give up **ultimate discretion on certain issues**.\ More history to come. **[History of Common Law]** - The law that the whole country had in common, rather than tribal laws that might apply between communities. - The doctrine of precedent of developed under the inquisitorial system in England during the 12 and 13^th^ centuries. - Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of common law where their application would operate harshly. **[Basic Principles of Common Law]** The key actors are the Judges\ Central position of the Doctrine of Precedent\ The common law is more flexible than statutory law\ The common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects **[History of the Civil Law Tradition ]** Five main historical roots:\ *Corpus Juris Civilis*\ Germanic influences\ Canon Law\ The Law Merchant\ Reception in France and Germany **[Canon Law (Christian Law) Influences -- 9^th^ and 12^th^ Centuries]**\ - Influenced early Roman Law \- Gained traction during Middle Ages \- Development of ecclesiastical courts in 12^th^ century, which introduced legal argumentation by parties and legal reasoning as the basis for decisions. **The Law Merchant**: a body of commercial law that developed indeoendently to regulate trade and business transcations across Europe. Distinict from Germnaic customary law and canon law and played a key role in the development of modern commercial law. **[Codification]** In Civil Law Primary source of law is code (legislation) Code are a authoritative comprehensive and systematic of general clauses and legal principles divided into books of part operating in a logical fashion. Primary source, to which all other sources are subordinate and are usually the only source of law. Compared to common law jurisdiction - In common law 'doctrine' is the realm of judge\'s decisions; less need to go to scholars for interpretation of cases or legislation. **[Sources of Law ]** While codification is a key aspect of civil systems, it is also an over-simplification:\ **Primary sources**: constitutional law, enacted law statutes, regulations, custom\ ** Secondary sources**: court decisions, (jurisprudence), learned annotations of academic writers (doctrine), textbooks, commentaries, monographs by experts, decisions of foreign courts, international treaties\ The relative unimportance of judicial decisions (at least in theory) compared with doctrinal legal writing, in stating the rules of the legal system. **[Primary Actors ]** 1. **Legal Education**: based on codes and students decide early what kind of lawyer they wish to be.\ Reiterates "scholar made law" -- education was historically the province of the universities.\ Study of Codes and systematic overview of system as compared to our focus on facts, application to cases and critical analysis.\ Study academic writings of legal scholars, which are more important than case law. 2. **The Legal Profession** - Two typical civil lawyer distinctions: lawyers or advocates, notaries\ Different kinds of practical training required for each.\ Choice of type upon graduation from law school is usually final.\ **Lawyer/advocate**: most like the common law lawyer, appears in court.\ **Notaries**: drafting and certifying documents, and safeguarding records. They are usually awarded a 'territory' on passing an exam. 3. **The Judiciary**: characterized by parliamentary supremacy, code interpretation and inquisitorial nature of hearings.\ The various types of courts of common law 'general jurisdiction',\ are entrusted to two or more separate hierarchies of specialized\ courts, each with its own Supreme court.\ With a few exceptions there are no juries in the Civil systems.\ "**[Inquisitorial system":]**\ - In private (civil) matters: Judges handle discovery, **questioning of witnesses**, series of meeting and exchange of documents, not a trial per se.\ - In criminal matters: Prosecutor conducts investigation and lodges findings with an examining judge. Takes evidence and develops a summary written record of facts. Trail is presentation of an already assembled case. No plea bargaining. **[Other Systems Around the World]** Religious Legal Systems - Natural law, not positive law. - Founded on a particular religion (Canon Law (Catholicism), Jewish, Islamic and Buddhist Law) - Often prioritize moral and ethical conduct as fundamental legal principles - Legal rules are closely tied to religious doctrine, rituals and practices and adherence to the law is part of the religious life. - Religious legal systems are often rely on **religious scholars/authorities** to interpret and apply the law. **[Islamic System (an example) ]** - Seen by many as the third major system in the world. - Bound to the religion of Islam - Sources of law: - The Quran (Sharia -- divine law) - Hadiths -- collections of words and deeds of Muhammad - Fiqh -- reasoned positions on issues not dealt with in Sharia - Judicial consensus - Analogical reasoning **[Socialist legal systems ]** - Communist or formerly communist states - Had much more influence prior to the collapse of the Soviet Empire. - All law is an instrument of economic and social policy that is capitalist and imperialistic - No law is necessary in a fair socialist system where there are no classes - Private law becomes public law, e.g property rights are withered away to state ownership - Subordination of the judiciary to the Communist Party **[Customary Law ]** - An established pattern of behavior - First Nations Lore - Formative basis of all systems - Presently most often found in mixed systems **[REFLECTION]** The LLB108 4Rs Reflective Model +-------------+-------------+-------------+-------------+-------------+ | **Step** | **Stage** | **Questions | **Your | **Supportin | | | | to get you | reflection* | g | | | | started** | * | resources** | +=============+=============+=============+=============+=============+ | **1** | **Reporting | Report on | | | | | ** | what | | | | | | happened, | | | | | | and the law | | | | | | and | | | | | | stakeholder | | | | | | s | | | | | | involved. | | | | | | Describe | | | | | | the legal | | | | | | approach | | | | | | taken. | | | +-------------+-------------+-------------+-------------+-------------+ | **2** | **Relating* | Relate what | | | | | * | happened to | | | | | | your own | | | | | | values, | | | | | | views, and | | | | | | feelings. | | | | | | Identify | | | | | | the values | | | | | | that | | | | | | underpin | | | | | | the | | | | | | approach | | | | | | taken and | | | | | | consider | | | | | | whether | | | | | | they align | | | | | | with your | | | | | | own values. | | | | | | What was | | | | | | the role of | | | | | | the lawyer | | | | | | in the | | | | | | situation | | | | | | and what | | | | | | role did | | | | | | law play? | | | | | | Does the | | | | | | role played | | | | | | by the | | | | | | lawyer and | | | | | | the law | | | | | | align with | | | | | | your | | | | | | personal or | | | | | | professiona | | | | | | l | | | | | | values? | | | +-------------+-------------+-------------+-------------+-------------+ | **3** | **Reasoning | Reason why | | [Sustainabi | | | ** | the | | lity | | | | situation | | Mindset](ht | | | | played out | | tps://canva | | | | this way | | s.qut.edu.a | | | | and whether | | u/courses/1 | | | | a | | 8606/module | | | | Sustainabil | | s/260353) | | | | ity | | | | | | Mindset was | | [SDGs- Week | | | | used in the | | 2](https:// | | | | approach or | | canvas.qut. | | | | not. Was | | edu.au/cour | | | | the | | ses/18606/m | | | | approach | | odules/2458 | | | | taken | | 75) | | | | sustainable | | | | | | ? | | [ESD - Week | | | | Apply a | | 3](https:// | | | | Sustainabil | | canvas.qut. | | | | ity | | edu.au/cour | | | | Mindset to | | ses/18606/m | | | | explain why | | odules/2458 | | | | or why not, | | 76) | | | | using | | | | | | specific | | [ESG - Week | | | | examples | | 3](https:// | | | | and | | canvas.qut. | | | | referencing | | edu.au/cour | | | | specific | | ses/18606/m | | | | theory and | | odules/2458 | | | | concepts | | 76) | | | | taught in | | | | | | this unit. | | | | | | Consider | | | | | | different | | | | | | perspective | | | | | | s. | | | | | | Which | | | | | | stakeholder | | | | | | perspective | | | | | | s | | | | | | were | | | | | | included or | | | | | | excluded? | | | | | | What was | | | | | | the impact | | | | | | of this? | | | +-------------+-------------+-------------+-------------+-------------+ | **4** | **Reconstru | Reconstruct | | | | | cting** | a future | | | | | | approach | | | | | | that could | | | | | | be taken. | | | | | | Imagine | | | | | | that you | | | | | | are in your | | | | | | future | | | | | | legal | | | | | | career. How | | | | | | could you | | | | | | adopt a | | | | | | Sustainabil | | | | | | ity | | | | | | Mindset to | | | | | | respond if | | | | | | you were | | | | | | put in this | | | | | | situation | | | | | | to achieve | | | | | | a | | | | | | sustainable | | | | | | future? | | | | | | What might | | | | | | the impact | | | | | | of your | | | | | | approach be | | | | | | on | | | | | | stakeholder | | | | | | s? | | | | | | Link to the | | | | | | theory and | | | | | | concepts | | | | | | you | | | | | | discussed | | | | | | earlier in | | | | | | your | | | | | | reflection. | | | +-------------+-------------+-------------+-------------+-------------+ SDG (Sustainable Development Goal) Primary critique of SDG's is that economic growth continues to be proritized at the expense of social and environmental sustainability, SGDs are soft law and unenforceable -- and are not legally binding and therefore result in a lack of implementation. **[ESG (Environmental, Social and Governance) ]** - Referred to as the three pillars of corporate responsibility. Voluntary set of guidelines -- a framework used to evaluate the **sustainability** and **ethical impact** of an organization **particularly in the context of investment and corporate behavior**. A set of criteria that's used to evaluate a company\'s operation and performance in three key areas of governance. 1. **[Environment]** -- examines how a company interacts and manages it's impact on natural resources. Factors include: carbon emissions, pollution, energy use and conservation efforts etc. 2. **[Social]** -- assesses how our company manages it's relationships with employees, suppliers, customers and community. Includes considerations such as labor practices, employee relationships, product safety, human rights, diversity etc. 3. **[Governance]** -- internal systems of practices and controls and procedures that a company adopts to govern itself, to make effective decisions to comply with the law and to meet the needs of external stakeholders (ethical practices, transparency, compliance etc.) How is ESG governed in Australia? - Implemented through both hard + soft law Company driver/bottom-up approach + voluntary report frameworks. **Hard law approaches** - Corporations Act 2001, requires companies to disclose matieral risks (which can include ESG risks in their annual reports. It also requires directors to act in good faith and for a proper purpose in the best interests of the company (s181) - Climate change laws such as the National Greenhouse and Energy Report Act -- which mandated reports of Greenhouse Gas emissions -- Climate Change Act 2022. - More like = Modern Slavery Act, Human Rights Act. **Why is ESG important?** - Risk management of environment (companies who neglect their duties can face significant financial risks including regulatory penalties, litigation, and damage to their reputation. Some of them: - Social (can lead to strikes, loss of social license etc.) - Governance (legal consequences) - Regulatory compliance - Competitiveness -- enjoy a competitive edge, improved reputation, stronger customer loyalty. - Employee engagement + retention - Sustainability over the long term. ESD (Environmental Sustainable Development) -The version of SD adopted by Australian environmental legislation \- Eg s 3 of the EPBC Act: Implementing ESD **[12 Sustainability Principles]** 1. **Ecoliteracy:** *Definition:* Understanding the state of the planet allows us to be more fully aware of sustainability challenges and the complexity of how they are linked to each other and enables us to explore what they mean to us. *In the Legal Context:* Analysing whether legal sustainability frameworks represent and address the state of the planet, and the complexities of 'wicked problems'. 2. **My Contribution** *Definition:* When we identify the ways in which we are unintentionally contributing to the problems, we have a chance to do something about them. This understanding also expands our consciousness and develops social sensitivity. *In the Legal Context:* Analysing the ways in which law and legal sustainability frameworks contribute to the problem and the solution. 3. **Long-term thinking** *Definition:* Every action has consequences that are not immediately visible. Considering the long-term effects when analysing situations and making decisions has a positive impact on global sustainability. *In the Legal Context:* Analysing the ways in which law and legal sustainability frameworks consider long-term impacts and promote long-term thinking. 4. **Both+and thinking** *Definition:* Both+and thinking allows us to understand paradoxes and calls for creative solutions that are inclusive of all stakeholders. *In the Legal Context:* Analysing whether law enables both+and thinking and creates solutions inclusive of the needs and values of multiple stakeholders. 5. **Flow in cycles** *Definition:* There is no linear process in Nature or society. Everything flows in cycles of birth, growth, death and rebirth. Flow is defined as matter and energy moving with unbroken continuity into and out of a system. A Cycle is something that repeats itself regularly. Many aspects of man-made unsustainability are a result of the misconception that we are not governed by this law of Nature. *In the Legal Context:* Analysing the ways in which law and legal sustainability frameworks are linear or cyclical and make room for flow-ins and cycles in decision-making. Does sustainability law support the linear growth model, or something else? 6. **Interconnectedness** *Definition:* When we see interconnectedness, we understand the importance of diversity, and our decisions and actions become more inclusive, which contributes to the sustainability of the whole. *In the Legal Context:* Considering whether legal systems and laws themselves inclusive of all those impacted, and whether they should be. Analysing legal systems as inclusive of other governance mechanisms? 7. **Purpose** *Definition:* Defining our purpose provides an unconscious compass, and when it is grounded in values of our higher self, we actively shape a better world. *In the Legal Context:* Considering what values you bring to your role as a legal practitioner and the purpose of that role in shaping sustainable futures. 8. **Oneness with Nature** *Definition:* Understanding that we are one with Nature, a species within species, is a powerful spiritual experience that can shape behaviours leading to a more harmonious relationship with each other and all beings. *In the Legal Context:* Understanding the history of our Western legal system has resulted in a separation from Nature, and that often law does not allow an emotive connection with Nature, but instead relies on its instrumental value. 9. **Mindfulness** *Definition:* Being fully present, experiencing connectedness with all that is, Mindfulness enhances awareness and compassion and predisposes to social and environmental actions. *In the Legal Context:* Analysing whether legal systems and laws promote sustainable consumption behaviours, sensitivity to inequity, social activism and activation of a core sustainable ethic? 10. **Creative Innovation** *Definition:* Resilience is based on constant creativity, innovation and experimentation. When we neglect the nonrational side of us, our solutions are missing critical information and may create negative impacts on the ecosystem and society. *In the Legal Context:* Analysing whether our legal systems, and our role in them, allow for creativity, resourcefulness and innovation in addressing sustainability problems. 11. **Reflection** *Definition:* Reflective practices help to pause and ponder the situation and its implications before jumping into action. *In the Legal Context:* Consider your role as a legal practitioner and practice reflective thinking across the spectrum of your responsibilities and the implications of law in a given situation. 12. **Self-awareness** *Definition:* When we explore our personal values, beliefs, assumptions and motivations, we gain greater control over our own actions and can see new alternative behaviours. *In the Legal Context:* Analysing whether the outcomes of sustainability law align with its objectives and espoused values, and considering whether the role you\'re asked to play as a lawyer in different circumstances reflects your personal beliefs and values