Topics

The details for the course, Special Topics in International Law: (LAWS8122), apply to all of the following topics. Specific descriptions for Syllabus and Proposed Assessment that apply to each topic are detailed below.

Ethno-Political Conflicts and International Law

Syllabus

 

COURSE DESCRIPTION

 

Ethno-political conflicts are, of course, a permanent feature of history, but the end of the Cold War has exacerbated this problem, bringing about new secessionist aspirations and conflicts, as well as reviving dormant civil wars. Those conflicts, which are all too often disruptive of international peace and security, raise serious difficulties for international law. The objective of this course will be to provide a detailed analysis of the international norms applicable in this field, to enquire whether international law can provide satisfactory remedies for those conflicts and to ask which are, if any, the legal gaps in this field.

The departure point of the course will be the notorious "principle of self-determination" which, without any doubt, has proved to be a principle of the utmost importance in international relations since its inscription in the UN Chapter in 1945. The course will trace its history and will answer the essential question concerning the applicability of this principle outside the colonial context. We will try to explain why this principle does not grant a right to secession to ethnic groups other than to colonial peoples and to those peoples subjected to foreign domination or occupation.

This does not mean however that secession is prohibited by international law. The creation of States has often been compared to a meta-judicial fact which cannot be explained by legal rules. It has often been said that international law does not permit secession, but does not prohibit it either and that the only criterion for the emergence of a new State, outside the colonial context, is the principle of effectiveness: if a secessionist entity succeeds in fulfilling the conditions of statehood, a new State is born. Secession is not supposed to be a question of law, but a question of fact. We will try to challenge this traditional view and to discover the precise interactions between the law and the facts in the process of the creation of States. The course will thus seek to define in what precise manner international law tries to ‘discipline' the principle of effectiveness, in order to contain the dangers to international peace and security. In order to do this we will use a large range of case studies and will also try to identify the role of international organisations and courts in this field. We will analyse the applicable legal principles, including the principle of respect of the territorial integrity of States, the principle of uti possidetis juris as well as the role and the legal framework of international recognition. We will also test the idea that in some salient cases (and especially in the case of external aggression), international law denies the quality of ‘State' to a secessionist entity, notwithstanding its ‘ultimate success'. Thus, we will conclude that secession is not only a question of ‘fact', but also a question of ‘law'.

But ethno-political conflicts are not to be assimilated with secessionist conflicts alone. In some cases the aspiration of an ethnic group is not to accede to statehood, but to obtain an autonomy arrangement within the existing State or, even more modestly, to avoid discrimination, achieve economic and political fairness, obtain human and minorities rights and assure democratic representation and access to government and the institutions of the State. The last part of this course will thus turn to the theory of "internal" self-determination, in order to ascertain if there is today, in treaty or customary law, a "right to democracy" or a "right to autonomy" and will try to identify briefly the existing rights of minorities and indigenous peoples in international law.

 

LEARNING OUTCOMES

The Course aims to equip participants with all the elements necessary to understand how international law regulates ethno-political conflicts. Beyond its theoretical framework this course will adopt a "practical" approach by examining a large number of case studies. This will permit participants to learn more about the roots and the outcomes of some important ethno-political conflicts around the world and to find out how international organisations deal with those crises, and the effectiveness of the different strategies used for diffusing violent situations and resolving ethno-political conflicts. At the conclusion of this course students will have a sound knowledge of all the legal principles and rules applicable in this field and will have a better understanding of how international lawyers and other actors ought to approach an impending or ongoing ethnic conflict from a legal point of view.

Indicative Assessment

Students must rely on the Approved Assessment which will be posted to the course homepage on the ANU Law website, prior to the commencement of the course.

International Child Law

There are no syllabus or indicative asesssment details for this topic.

International Investment Law

Syllabus

This topic is not being offered in 2009 

 

Objectives:

On completion of this course students will understand the rules and principles of international investment law, be able to analyse and manipulate those rules and principles and place them within the broader system of international law, thereby widening and deepening their knowledge of that system.

 

Proposed topics:

• Introduction (concepts, context and overview of course); The Host State's rights and interests (notably permanent sovereignty over natural resources and the New International Economic Order)
• The Multi-National Enterprise (MNE): its legal personality and obligations (eg., environment, human rights and other norms of corporate social responsibility);
• The investment agreement between MNE and Host State: nature and types of agreement (eg., concessions, joint ventures) and consideration of certain typical clauses of such agreements.
• The protection of the foreign investment by virtue of international law: sources (custom, multilateral and bilateral treaties, codes of conduct);
• The standards of protection (national treatment, MFN, fair and equitable treatment and full protection and security)
• The protection of foreign investments continued: conditions for lawful expropriation and types of expropriation (including creeping, indirect and regulatory expropriation).
• Political risk insurance as a means of protecting foreign direct investment: national insurance regimes (OPIC) and multilateral guarantees (MIGA).
• Responsibility in the event of breach of international investment law (notably issues of attribution, circumstances precluding wrongfulness and reparations).
• Settlement of disputes: diplomatic settlement (notably negotiation and conciliation)
• Settlement of disputes continued: jurisdictional fora and their functioning, diplomatic protection, and recognition and enforcement of awards, including the question of jurisdictional immunities.

 

Law, Violence and International Order

Syllabus

This topic is not being offered in 2009

The information published on the Study at ANU 2009 website applies to the 2009 academic year only. All information provided on this website replaces the information contained in the Study at ANU 2008 website.