Stuart Kaye

Law of the sea and the polar regions: Reconsidering the traditional norms☆☆☆

Applying the law of the sea in the polar regions creates great difflcultles. This Indicates a need to reassess the traditional notlons of the law of the sea. The polar reglons are distinct because they Increasingly have thelr own separate legal regimes. These Issues are examlned from the perspective of SIX bipolar law of the sea problems. A determlnation Is made as to whether the law of the sea deals adequately with the unique geographical, cllmatlc and jurlsdlctlonal problems which arlse In the polar reglons and If a sul generls approach to these issues Is requlred.

Australian Sovereignty over Heard and McDonald Islands: Law of the Sea Implications

In this paper, the issue of Australian sovereignty over the Heard and McDonald Islands, in the Indian Ocean, will be examined. Australian claims to the islands and surrounding rocks, the territorial sea of the islands, the declaration of a 200 nautical mile fishing zone and possible exclusive economic zone (EEZ), and a possible claim to the continental shelf surrounding the islands will be examined. The proximity of the island to the Antarctic also raises questions as to the extent of a possible claim to the continental shelf, and international recognition of Australian sovereignty generally. Each of these issues will be considered individually, commencing with the islands themselves, and “working outward” finally considering the continental shelf.

International Law: International and municipal law

Introduction International law establishes its own distinctive framework dealing with both the sources of international law but also how that law deals with the relations between States. Accordingly, treaties regulate certain relations between States at either a multilateral or bilateral level and the obligations created under these treaties create certain levels of State responsibility by the treaty parties to act in good faith. While the international law frameworks regulating the relations between States are relatively well developed, the role of international law at a municipal level is equally important. This can be illustrated in various ways. Human rights conventions recognise certain rights for citizens of a State. In some instances these rights may also reflect constitutionally entrenched rights of citizens. Often, however, these rights are both distinctive and universal in nature and may not be reflected in municipal legal systems. The issue which then arises is how to translate the international human rights obligation contained in the convention into municipal law. Likewise, under environmental conventions State parties may have obligations to preserve and protect certain designated wilderness areas. To properly give effect to these obligations it may become necessary to designate a protected area or park under municipal law. One consequence of this may be that future development of the area will be constrained as a result of municipal law seeking to give effect to the terms of an international convention.

International Law: Sources of international law

Introduction Law-making is not a straightforward process in international law. There is no centralised structure or global government responsible for identifying certain policy directions and legislating accordingly. With the exception of decisions of the United Nations (UN) Security Council and the European Commission, States have not agreed to being bound by resolutions or decisions of international organisations. International organisations and groupings of States like the UN General Assembly are no more capable of creating formal and binding legal norms than diplomatic conferences that discuss and draft agreements for signature and ratification by States. The most crucial difference between international law and domestic law is that, by and large, international law is created by the very subjects it binds – that is, States – without a formalised structure of government or legislature. This chapter focuses on the various law-making processes and structures available for creating international law. It first considers the traditional sources of international law as set out in art 38(1) of the Statute of the International Court of Justice ( ICJ Statute ) generally and the concept of hierarchy of norms and relative norms before considering each of the art 38(1) sources in turn. The chapter concludes by considering alternative sources of international law not covered by art 38(1): ‘soft law’ including that created by non-State actors, and the role of the UN in creating international law. The traditional sources of international law The cornerstone of any discussion relating to the sources of public international law is art 38(1) of the ICJ Statute . It provides: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. 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. Article 38(1) clearly states where international law is to be found for the purposes of proceedings before the International Court of Justice (ICJ) and although only a handful of cases come before the ICJ each year, the jurisprudence of the Court holds great weight with the international legal community.