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Publisher: RMIT Publishing   (Total: 399 journals)

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Showing 1 - 200 of 399 Journals sorted alphabetically
40 [degrees] South     Full-text available via subscription   (Followers: 2)
Aboriginal and Islander Health Worker J.     Full-text available via subscription   (Followers: 14)
Aboriginal Child at School     Full-text available via subscription   (Followers: 5)
About Performance     Full-text available via subscription   (Followers: 11)
Access     Full-text available via subscription   (Followers: 25)
ACCESS: Critical Perspectives on Communication, Cultural & Policy Studies     Full-text available via subscription   (Followers: 10)
Accounting, Accountability & Performance     Full-text available via subscription   (Followers: 17)
ACORN : The J. of Perioperative Nursing in Australia     Full-text available via subscription   (Followers: 17, SJR: 0.198, CiteScore: 0)
Adelaide Law Review     Full-text available via subscription   (Followers: 22, SJR: 0.122, CiteScore: 0)
Advocate: Newsletter of the National Tertiary Education Union     Full-text available via subscription   (Followers: 1)
Agenda: A J. of Policy Analysis and Reform     Full-text available via subscription   (Followers: 1)
Agora     Full-text available via subscription   (Followers: 4)
Agricultural Commodities     Full-text available via subscription   (SJR: 0.123, CiteScore: 0)
Agricultural Science     Full-text available via subscription   (Followers: 2)
AIMA Bulletin     Full-text available via subscription   (Followers: 4)
AJP : The Australian J. of Pharmacy     Full-text available via subscription   (Followers: 10, SJR: 0.142, CiteScore: 0)
Analysis     Full-text available via subscription   (Followers: 3)
Ancient History : Resources for Teachers     Full-text available via subscription   (Followers: 4)
Anglican Historical Society J.     Full-text available via subscription   (Followers: 3)
Annals of the Royal Australasian College of Dental Surgeons     Full-text available via subscription   (Followers: 4)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 3)
Appita J.: J. of the Technical Association of the Australian and New Zealand Pulp and Paper Industry     Full-text available via subscription   (Followers: 14, SJR: 0.168, CiteScore: 0)
AQ - Australian Quarterly     Full-text available via subscription  
Arena J.     Full-text available via subscription   (Followers: 1)
Around the Globe     Full-text available via subscription   (Followers: 1)
Art + Law     Full-text available via subscription   (Followers: 12)
Art Monthly Australia     Full-text available via subscription   (Followers: 10)
Artefact : the journal of the Archaeological and Anthropological Society of Victoria     Full-text available via subscription   (Followers: 3)
Artlink     Full-text available via subscription   (Followers: 5)
Asia Pacific J. of Clinical Nutrition     Full-text available via subscription   (Followers: 10, SJR: 0.697, CiteScore: 2)
Asia Pacific J. of Health Management     Full-text available via subscription   (Followers: 4)
Aurora J.     Full-text available via subscription  
Australasian Biotechnology     Full-text available via subscription   (Followers: 1, SJR: 0.1, CiteScore: 0)
Australasian Catholic Record, The     Full-text available via subscription   (Followers: 5)
Australasian Drama Studies     Full-text available via subscription  
Australasian Epidemiologist     Full-text available via subscription  
Australasian Historical Archaeology     Full-text available via subscription   (Followers: 7, SJR: 0.212, CiteScore: 0)
Australasian J. of Early Childhood     Full-text available via subscription   (Followers: 5, SJR: 0.535, CiteScore: 1)
Australasian J. of Gifted Education     Full-text available via subscription   (Followers: 6, SJR: 0.123, CiteScore: 0)
Australasian J. of Human Security     Full-text available via subscription   (Followers: 1, SJR: 0.144, CiteScore: 0)
Australasian J. of Irish Studies, The     Full-text available via subscription   (Followers: 8)
Australasian J. of Regional Studies, The     Full-text available via subscription   (Followers: 1, SJR: 0.118, CiteScore: 0)
Australasian Law Management J.     Full-text available via subscription   (Followers: 7)
Australasian Leisure Management     Full-text available via subscription   (Followers: 1)
Australasian Musculoskeletal Medicine     Full-text available via subscription   (Followers: 3)
Australasian Music Research     Full-text available via subscription   (Followers: 4)
Australasian Parks and Leisure     Full-text available via subscription   (Followers: 2)
Australasian Plant Conservation: J. of the Australian Network for Plant Conservation     Full-text available via subscription   (Followers: 4)
Australasian Policing     Full-text available via subscription   (Followers: 5)
Australasian Public Libraries and Information Services     Full-text available via subscription   (Followers: 33)
Australasian Review of African Studies, The     Full-text available via subscription   (Followers: 2)
Australian Aboriginal Studies     Full-text available via subscription   (Followers: 10, SJR: 0.13, CiteScore: 0)
Australian Advanced Aesthetics     Full-text available via subscription   (Followers: 4)
Australian Ageing Agenda     Full-text available via subscription   (Followers: 6)
Australian and Aotearoa New Zealand Psychodrama Association J.     Full-text available via subscription  
Australian and New Zealand Continence J.     Full-text available via subscription   (Followers: 3)
Australian and New Zealand Sports Law J.     Full-text available via subscription   (Followers: 8)
Australian Art Education     Full-text available via subscription   (Followers: 8)
Australian Bookseller & Publisher     Full-text available via subscription   (Followers: 1)
Australian Bulletin of Labour     Full-text available via subscription   (Followers: 2)
Australian Canegrower     Full-text available via subscription   (Followers: 2)
Australian Coeliac     Full-text available via subscription   (Followers: 1)
Australian Cottongrower, The     Full-text available via subscription   (Followers: 1)
Australian Educational and Developmental Psychologist, The     Full-text available via subscription   (Followers: 8, SJR: 0.146, CiteScore: 0)
Australian Family Physician     Full-text available via subscription   (Followers: 3, SJR: 0.317, CiteScore: 1)
Australian Field Ornithology     Full-text available via subscription   (Followers: 4, SJR: 0.209, CiteScore: 0)
Australian Forest Grower     Full-text available via subscription   (Followers: 4)
Australian Grain     Full-text available via subscription   (Followers: 2)
Australian Holstein J.     Full-text available via subscription   (Followers: 1)
Australian Humanist, The     Full-text available via subscription   (Followers: 3)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 22)
Australian Intl. Law J.     Full-text available via subscription   (Followers: 23)
Australian J. of Acupuncture and Chinese Medicine     Full-text available via subscription   (Followers: 3, SJR: 0.116, CiteScore: 0)
Australian J. of Adult Learning     Full-text available via subscription   (Followers: 16, SJR: 0.297, CiteScore: 0)
Australian J. of Advanced Nursing     Full-text available via subscription   (Followers: 13, SJR: 0.299, CiteScore: 1)
Australian J. of Asian Law     Full-text available via subscription   (Followers: 4)
Australian J. of Cancer Nursing     Full-text available via subscription   (Followers: 8)
Australian J. of Civil Engineering     Full-text available via subscription   (Followers: 5, SJR: 0.158, CiteScore: 0)
Australian J. of Dyslexia and Learning Difficulties     Full-text available via subscription   (Followers: 8, SJR: 0.1, CiteScore: 0)
Australian J. of Emergency Management     Full-text available via subscription   (Followers: 15, SJR: 0.354, CiteScore: 0)
Australian J. of French Studies     Full-text available via subscription   (Followers: 7, SJR: 0.123, CiteScore: 0)
Australian J. of Herbal Medicine     Full-text available via subscription   (Followers: 3)
Australian J. of Language and Literacy, The     Full-text available via subscription   (Followers: 3, SJR: 0.282, CiteScore: 1)
Australian J. of Legal History     Full-text available via subscription   (Followers: 14)
Australian J. of Mechanical Engineering     Full-text available via subscription   (Followers: 4, SJR: 0.119, CiteScore: 0)
Australian J. of Medical Science     Full-text available via subscription   (Followers: 1)
Australian J. of Multi-Disciplinary Engineering     Full-text available via subscription   (Followers: 2)
Australian J. of Music Education     Full-text available via subscription   (Followers: 5)
Australian J. of Music Therapy     Full-text available via subscription   (Followers: 9, SJR: 0.549, CiteScore: 1)
Australian J. of Parapsychology     Full-text available via subscription   (Followers: 2, SJR: 0.511, CiteScore: 0)
Australian J. of Social Issues     Full-text available via subscription   (Followers: 5, SJR: 0.399, CiteScore: 1)
Australian J. of Structural Engineering     Full-text available via subscription   (Followers: 6, SJR: 0.281, CiteScore: 1)
Australian J. of Water Resources     Full-text available via subscription   (Followers: 5, SJR: 0.156, CiteScore: 0)
Australian J. on Volunteering     Full-text available via subscription   (Followers: 2)
Australian J.ism Review     Full-text available via subscription   (Followers: 8)
Australian Life Scientist     Full-text available via subscription   (Followers: 2)
Australian Literary Studies     Full-text available via subscription   (Followers: 5)
Australian Mathematics Teacher, The     Full-text available via subscription   (Followers: 6)
Australian Nursing J. : ANJ     Full-text available via subscription   (Followers: 6)
Australian Orthoptic J.     Full-text available via subscription  
Australian Primary Mathematics Classroom     Full-text available via subscription   (Followers: 4)
Australian Screen Education Online     Full-text available via subscription   (Followers: 2)
Australian Senior Mathematics J.     Full-text available via subscription   (Followers: 1)
Australian Sugarcane     Full-text available via subscription  
Australian TAFE Teacher     Full-text available via subscription   (Followers: 4)
Australian Tax Forum     Full-text available via subscription   (Followers: 3)
Australian Universities' Review, The     Full-text available via subscription   (Followers: 4)
Australian Voice     Full-text available via subscription   (Followers: 6)
Bar News: The J. of the NSW Bar Association     Full-text available via subscription   (Followers: 6)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
BOCSAR NSW Alcohol Studies Bulletins     Full-text available via subscription   (Followers: 4)
Bookseller + Publisher Magazine     Full-text available via subscription   (Followers: 5)
Breastfeeding Review     Full-text available via subscription   (Followers: 18, SJR: 0.183, CiteScore: 0)
British Review of New Zealand Studies     Full-text available via subscription   (Followers: 4)
Brolga: An Australian J. about Dance     Full-text available via subscription   (Followers: 1)
Cancer Forum     Full-text available via subscription   (SJR: 0.115, CiteScore: 0)
Cardiovascular Medicine in General Practice     Full-text available via subscription   (Followers: 7)
Chain Reaction     Full-text available via subscription  
Childrenz Issues: J. of the Children's Issues Centre     Full-text available via subscription  
Chiropractic J. of Australia     Full-text available via subscription   (SJR: 0.111, CiteScore: 0)
Chisholm Health Ethics Bulletin     Full-text available via subscription   (Followers: 1)
Church Heritage     Full-text available via subscription   (Followers: 4)
Commercial Law Quarterly: The J. of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 5)
Communicable Diseases Intelligence Quarterly Report     Full-text available via subscription   (Followers: 2, SJR: 0.563, CiteScore: 1)
Communication, Politics & Culture     Open Access   (Followers: 13)
Communities, Children and Families Australia     Full-text available via subscription   (Followers: 2)
Connect     Full-text available via subscription   (Followers: 2)
Contemporary PNG Studies     Full-text available via subscription  
Context: J. of Music Research     Full-text available via subscription   (Followers: 8)
Corporate Governance Law Review, The     Full-text available via subscription   (Followers: 7)
Creative Approaches to Research     Full-text available via subscription   (Followers: 13)
Critical Care and Resuscitation     Full-text available via subscription   (Followers: 19, SJR: 1.032, CiteScore: 1)
Cultural Studies Review     Full-text available via subscription   (Followers: 15)
Culture Scope     Full-text available via subscription   (Followers: 4)
Current Issues in Criminal Justice     Full-text available via subscription   (Followers: 11)
Dance Forum     Full-text available via subscription   (Followers: 3)
DANZ Quarterly: New Zealand Dance     Full-text available via subscription   (Followers: 3)
Day Surgery Australia     Full-text available via subscription   (Followers: 2)
Deakin Law Review     Full-text available via subscription   (Followers: 15)
Developing Practice : The Child, Youth and Family Work J.     Full-text available via subscription   (Followers: 19)
Early Days: J. of the Royal Western Australian Historical Society     Full-text available via subscription  
Early Education     Full-text available via subscription   (Followers: 8)
EarthSong J.: Perspectives in Ecology, Spirituality and Education     Full-text available via subscription   (Followers: 1)
East Asian Archives of Psychiatry     Full-text available via subscription   (Followers: 3, SJR: 0.36, CiteScore: 1)
Educare News: The National Newspaper for All Non-government Schools     Full-text available via subscription  
Educating Young Children: Learning and Teaching in the Early Childhood Years     Full-text available via subscription   (Followers: 18)
Education in Rural Australia     Full-text available via subscription   (Followers: 1)
Education, Research and Perspectives     Full-text available via subscription   (Followers: 10)
Educational Research J.     Full-text available via subscription   (Followers: 17)
Electronic J. of Radical Organisation Theory     Full-text available via subscription   (Followers: 3)
Employment Relations Record     Full-text available via subscription   (Followers: 2)
English in Aotearoa     Full-text available via subscription   (Followers: 2)
English in Australia     Full-text available via subscription   (Followers: 2, SJR: 0.18, CiteScore: 0)
Essays in French Literature and Culture     Full-text available via subscription   (Followers: 7)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 5)
Eureka Street     Full-text available via subscription   (Followers: 5)
Extempore     Full-text available via subscription  
Family Matters     Full-text available via subscription   (Followers: 10, SJR: 0.228, CiteScore: 1)
Federal Law Review     Full-text available via subscription   (Followers: 21)
Fijian Studies: A J. of Contemporary Fiji     Full-text available via subscription   (Followers: 1)
Focus on Health Professional Education : A Multi-disciplinary J.     Full-text available via subscription   (Followers: 7)
Food New Zealand     Full-text available via subscription   (Followers: 4)
Fourth World J.     Full-text available via subscription   (Followers: 1)
Frontline     Full-text available via subscription   (Followers: 18)
Future Times     Full-text available via subscription   (Followers: 2)
Gambling Research: J. of the National Association for Gambling Studies (Australia)     Full-text available via subscription   (Followers: 5)
Gay and Lesbian Law J.     Full-text available via subscription   (Followers: 2)
Gender Impact Assessment     Full-text available via subscription   (Followers: 1)
Geographical Education     Full-text available via subscription   (Followers: 2)
Geriatric Medicine in General Practice     Full-text available via subscription   (Followers: 8)
Gestalt J. of Australia and New Zealand     Full-text available via subscription   (Followers: 2, SJR: 0.1, CiteScore: 0)
Globe, The     Full-text available via subscription   (Followers: 3)
Government News     Full-text available via subscription   (Followers: 2)
Great Circle: J. of the Australian Association for Maritime History, The     Full-text available via subscription   (Followers: 7)
Grief Matters : The Australian J. of Grief and Bereavement     Full-text available via subscription   (Followers: 10)
He Puna Korero: J. of Maori and Pacific Development     Full-text available via subscription   (Followers: 4)
Headmark     Full-text available via subscription   (Followers: 2)
Health Inform     Full-text available via subscription  
Health Issues     Full-text available via subscription   (Followers: 2)
Health Promotion J. of Australia : Official J. of Australian Association of Health Promotion Professionals     Full-text available via subscription   (Followers: 8, SJR: 0.531, CiteScore: 1)
Health Voices     Full-text available via subscription  
Heritage Matters : The Magazine for New Zealanders Restoring, Preserving and Enjoying Our Heritage     Full-text available via subscription   (Followers: 2)
High Court Quarterly Review, The     Full-text available via subscription   (Followers: 3)
History of Economics Review     Full-text available via subscription   (Followers: 9)
HIV Australia     Full-text available via subscription   (Followers: 3)
HLA News     Full-text available via subscription   (Followers: 3, SJR: 0.438, CiteScore: 1)
Hong Kong J. of Emergency Medicine     Full-text available via subscription   (Followers: 4, SJR: 0.19, CiteScore: 0)
Idiom     Full-text available via subscription   (Followers: 1)
Impact     Full-text available via subscription   (Followers: 1)
InCite     Full-text available via subscription   (Followers: 17)
Indigenous Law Bulletin     Full-text available via subscription   (Followers: 19)
InPsych : The Bulletin of the Australian Psychological Society Ltd     Full-text available via subscription   (Followers: 2)
Inside Film: If     Full-text available via subscription   (Followers: 7)
Institute of Public Affairs Review: A Quarterly Review of Politics and Public Affairs, The     Full-text available via subscription   (Followers: 11)
Instyle     Full-text available via subscription   (SJR: 0.116, CiteScore: 0)
Intellectual Disability Australasia     Full-text available via subscription   (Followers: 7)
Interaction     Full-text available via subscription   (Followers: 3)
Intl. Employment Relations Review     Full-text available via subscription   (Followers: 2)
Intl. J. of Disability Management Research     Full-text available via subscription   (Followers: 2)
Intl. J. of e-Business Management     Full-text available via subscription  

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Journal Cover
Australian International Law Journal
Number of Followers: 23  
 
  Full-text available via subscription Subscription journal
ISSN (Print) 1325-5029
Published by RMIT Publishing Homepage  [399 journals]
  • Volume 22 Time to put on the 3-D glasses: Is there a need to expand
           JSCOT's mandate to cover 'instruments of less than treaty status''
    • Abstract: Byrnes, Andrew
      Many significant agreements between Australia and other countries are contained in instruments which are neither designated as nor intended to be treaties binding as a matter of international law. While some of these agreements may in fact be treaties, most are arrangements that are binding only as a matter of political or moral obligation, and their efficacy results from the shared interests of the countries which have concluded them. This article addresses the current state of Parliamentary and public access to the texts of formal arrangements between Australia and other countries that are of 'less than treaty status'. It argues that many of these arrangements are of considerable practical and political significance to the relations between Australia and the other countries which are parties to those agreements. At present the publication of such documents is sporadic and unsystematic, and the text of many such instruments is not available to the public on government websites. The article argues that some of the reasons that led to the systematic approach to the publication of treaties and related information and to enhanced Parliamentary consideration of treaties also apply in relation to many of these instruments. The article recommends that a review of the practice of (non-)publication of instruments of less than treaty status be undertaken, with a view to the adoption of a more systematic approach to the collection and publication of such instruments, with a presumption in favour of publication. It also proposes that the conclusion of such instruments should be reported on a regular basis to JSCOT and that the Committee should have the mandate to consider those instruments as it thinks fit.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 Preface
    • Abstract: Ward, Christopher
      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 Excluded from the refugee protection but unreturnable: The
           international human rights protection of the undesired
    • Abstract: Putranto, Christian Donny
      This article attempts to shed a light on the human rights protection of the individuals who are excluded from the refugee protection due to criminal involvements but unreturnable to their countries due to the complementary protection under international human rights law. The non-'refoulement' principle under the refugee regime is only applicable to refugees, allowing countries to expel or deport those who are not refugees. However, the same principle under international human rights law applies to everyone regardless of one's legal or immigration status. Thus, countries face an unusual situation where some individuals are trapped in limbo. This article argues that despite their status, countries must protect the rights applicable to them to avoid their lives being destitute. The main rights argued in this article are the freedom from arbitrary detention, the right to work, and the right to adequate living standards. By protecting these rights, these individuals' lives will not be destitute while waiting for their eventual and humane solutions.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 The U.N. convention on electronic contracting: Back from the
           dead'
    • Abstract: Lambert, JBenjamin
      In 2006 the United Nations General Assembly opened the Convention on the Use of Electronic Communications in International Contracting (ECC/the Convention) for signature. The ECC was created to provide a mainly procedural framework that would allow for the global recognition of international contracts formed using electronic means. The Convention was, perhaps, the final product of many years work in the area which first gained attention in 1996 with the largely successful UNCITRAL Model Law on Electronic Commerce. The Convention was based in large part on Model Law and other influential national laws such as the American Uniform Electronic Transactions Act and the Canadian Uniform Electronic Commerce Act, which were also based on the Model Law, as well as principles of electronic contracting generally accepted in the West. Yet despite the substantially similar, if not virtually identical, language of the ECC and its predecessors in the field, and the fact that many of the drafters of the Model, Canadian, and American laws were also ECC drafters, the Convention has yet to gain wide acceptance.

      However, it is possible that the convention has caught a second wind. While it is true that at the time of writing only eighteen countries have signed the convention, after four years of dormancy two of the required three ratifications were submitted in June and July 2010. Suddenly, and almost from nowhere, the Convention is now on the brink of coming into force - bringing to light the "under-the-radar" influence the ECC has had with developing nations during that time. These developments could have important ramifications, especially in the areas of oil, technology, manufacturing and arbitration, to name a few, as current signatories include Russia, South Korea, China and Singapore.

      Given the history of the ECC and recent developments involving the Convention, this article aims to briefly review the principal similarities and any major differences between the ECC and the current electronic commerce laws of Canada, the United States and the European Union. This review will serve as a basis for a brief argument for the wider adoption of the ECC in the West. The article will then go on to explore how the Convention is influencing the laws of the ASEAN member states and how those states will benefit from adopting the convention as domestic law even if it never gains acceptance in the West.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 Due process and the death penalty in the Asia-Pacific region
    • Abstract: Choudhury, Farzana
      This article examines the application of due process in capital cases in the Asia-Pacific region. In spite of the minimum protections afforded under international law to support due process in capital cases, those standards have been undermined by a number of retentionist countries in the region. Recently, there have been renewed calls for Australia to take a firmer stance against the death penalty in the Asia-Pacific region, particular in neighbouring retentionist countries. Given the continued examples of failure to uphold due process in certain retentionist, Asia-Pacific countries (as evidenced by issues of concern in China, Japan, Singapore and Indonesia explored in this article), it is argued that closer scrutiny of procedural safeguards in capital cases is critical. This article also recommends that lobbying efforts call for enhanced due process in capital cases through regional coalitions, and within countries through internal advocacy efforts.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 Necessity in international law [Book Review]
    • Abstract: Tully, Stephen
      Review(s) of: Necessity in international law, by Jens David Ohlin and Larry May, (Oxford University Press, 2016) ISBN 978-0-19-062293-0, 276 pages.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 The international court of justice [Book Review]
    • Abstract: Tully, Stephen
      Review(s) of: The international court of justice, by Hugh Thirlway, (Oxford University Press, 2016) ISBN 978-0-19-877908-7, 223 pages.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 International court of justice, case of obligations concerning
           negotiations relating to cessation of the nuclear arms race and to nuclear
           disarmament (Marshall islands v united Kingdom, Pakistan and India) (2016)
           
    • Abstract: Tully, Stephen
      In 2014 the Republic of the Marshall Islands (RMI) filed applications against 9 States before the International Court of Justice (the Court or ICJ). No case was entered against China, North Korea, France, Israel, Russia and the United States because none had consented. In October 2016 the Court declared that jurisdiction was lacking in proceedings filed individually against the United Kingdom (UK), Pakistan and India (collectively, the respondents). RMI sought to rely on declarations made under Article 36(2) of the ICJ Statute. The respondents objected that there was no dispute between the parties when RMI's application was filed. The Court by majority agreed.1 It moreover found by majority that the merits could not be considered.2 The litigation raised questions of compliance with the obligation to negotiate under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT),3 to which RMI and the UK were parties, and customary international law. This casenote reviews the majority judgment as well as the declarations and separate and dissenting opinions before highlighting key implications from these cases.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 The ring of fire: Foreign state immunity in firebird global
           master fund II ltd v republic of Nauru
    • Abstract: Gorton, Timothy
      In June 2012, fund manager Firebird Global Master Fund II Ltd ('Firebird') registered a judgment of the Tokyo District Court in the Supreme Court of NSW.1The judgment was against the Republic of Nauru ('Nauru') and obliged Nauru to pay 1,300,000,000, plus interest. Firebird sought to garnish the amounts from Nauru government bank accounts in Australia. For the small Pacific state, it was potentially catastrophic.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 The south china sea arbitration (The republic of the Philippines
           v the People's republic of China)
    • Abstract: Ward, Christopher
      The 'Philippines v China Award' in July 2016 of the Annex VII Arbitral Panel established under the auspices of the Permanent Court of Arbitration will stand as one of the most significant decisions of the law of the sea. The Award determined claims by the Philippines challenging China's assertion of so-called 'historic title', the characterisation of various land features, and the legitimacy of actions taken by China in the disputed areas.The claims of the Philippines were overwhelmingly accepted by the Tribunal.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 Consequences of Kampala: Assessing the impact of an
           international criminal court finding of aggression
    • Abstract: McGinness, Edward
      In 2017, the crime of aggression is due to enter into force under the Rome Statute, giving an international tribunal, the International Criminal Court, the capacity to prosecute the crime for the first time since the end of World War II. The definition of the crime agreed upon at the Kampala Conference requires that the ICC first establish that a state has committed an 'act of aggression'. Therefore, the new jurisdiction of the ICC raises unresolved issues as to the interaction between two different systems of international law: the law of state responsibility and international criminal law. This article considers the implications for state responsibility flowing from a finding by the ICC. Specifically, it argues that such a finding would be coextensive with a breach of the prohibition on aggression under customary law and, thus, would be persuasive in a for a determination of state responsibility.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 22 The operations of the Islamic state and the relevance of
           international humanitarian law
    • Abstract: Bott, Gregory
      A number of scholars have suggested the existence of a predetermined set of laws to which terrorism, terrorist groups, and the members of such groups are to be subjected. Taking a critical approach to the literature, I contend that such an overarching predetermination oversimplifies the phenomenon, often resulting in an inaccurate application of the law. The determination of whether a terrorist group is subject to international humanitarian law, non-international humanitarian law, or either domestic or international criminal law is more complex than is typically suggested in the literature. Rather, as terrorism is a social phenomenon, not only is it difficult to define, the laws of which are to be applied must be determined on a case-by-case basis. In order to demonstrate such complexity, I draw upon a contemporary case study - the conflict against the Islamic State. Drawing on a number of recent activities by the Islamic State, I demonstrate whether such acts can constitute an armed conflict, when such conflicts are of an international nature, what violations of law have been committed, and what rights and obligations members of terrorist groups must be afforded. The results of this analysis demonstrate that no such sweeping predeterminations - as often suggested in the literature - can be made, but rather that 'it depends'.

      PubDate: Wed, 29 Nov 2017 20:27:56 GMT
       
  • Volume 21 Operating international law in a global context: Presentation of
           a three steps method
    • Abstract: Berge, Jean-Sylvestre; Helleringer, Genevieve
      The operation of international law, in the variety of global legal situations, has its own dynamism. It cannot result from the mere application of a method or a legal solution at a given moment, in a predetermined space and on a predetermined level, by a duly identified actor. It must be grasped in one movement. In a single situation, several laws must sometimes be mobilised, alternatively, cumulatively, at the same time or at different moments, in one or several spaces or on one or several levels, by one or by multiple actors. This distinctive dynamic, which the lawyer must be conscious of when passing from one context - national, international or European - to another, has an influence over the law, its uses and, sometimes, its content. This article is a general presentation of a three steps method: comparison, combination and hierarchization of the operations of the law in the national, international and European contexts.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 21 Trade and public health: The WTO, tobacco, alcohol, and diet
           [Book Review]
    • Abstract: Ishikawa, Yoshimichi
      Review(s) of: Trade and public health: The WTO, tobacco, alcohol, and diet, by Benn McGrady, (Cambridge University Press, 2011), ISBN 9781107657564, 340 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 21 Evolutionary trends in maritime piracy: A possible assessment of
           eco-activists' conduct
    • Abstract: Dominelli, Stefano
      Ever since its 'birth', the conduct of piracy has shown a natural tendency to evolve, to change, and - under a legal perspective - to test and challenge traditional legal frameworks. Currently, one of the main issues is the correct legal qualification of 'eco-protesters', who oppose research or exploitation activities to protect the marine environment. Part of the case law has started to assess protesters' violent conducts on the high seas, showing tendencies of piratical qualification. In the present work, it is argued that - as international law stands nowadays - eco-activists cannot be qualified as pirates. Violent actions on the high seas should rather fall within the scope of application of the SUA Convention. This option would respect eco-activists' human rights without impairing states from the possibility to prosecute violent actions on the high seas. However, this emerging trend draws the attention on possible future developments in the field of maritime piracy.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 21 Declining jurisdiction in the Hague's proposed judgments
           convention: Amalgamating the 'more appropriate forum' and the 'clearly
           inappropriate forum' tests to provide the optimal forum non conveniens
           clause
    • Abstract: Cook, Justin Paul
      Judicial cooperative efforts which focus on harmonising jurisdictional rules and the mutual recognition and enforcement of foreign judgments should advance certainty and predictability in international commercial litigation. Critically, the civilian and common law traditions adopt fundamentally different approaches to resolving conflicts of jurisdiction. The civil law system of lis pendens promotes procedural efficiency by applying the first-in-time rule whilst the common law technique for declining jurisdiction is governed by the doctrine of forum non conveniens. Moreover, different forms of this doctrine are applied throughout the common law world. Whilst the majority of common law courts apply the 'most appropriate forum' test, in Australia, a highly criticised variant of that analysis developed - the 'clearly inappropriate forum' test. In recent times, the Hague Conference on Private International Law has rekindled interest in producing a global judgments treaty. This article examines whether inter alia the forum non conveniens provision for declining jurisdiction in the proposed convention stands to benefit from an amalgam of the more appropriate forum and the clearly inappropriate forum tests. It is argued that, on the world stage, the narrow focus of the Australian test could be advantageous in bridging the ideological divide between the concepts of lis pendens and forum non conveniens.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 21 The unknown territories of the national security exception: The
           importance and interpretation of art XXI of the GATT
    • Abstract: Kitharidis, Sophocles
      There has been a lack of proper examination of Article XXI, the national security exception of the GATT 1994, in current World Trade Organisation law discourse. It is only recently that this fundamental area has been subjected to full review. In the negotiations leading up to the formation of the WTO, it was decided by the states parties that the provision should not be separate, but rather placed together with the general exceptions of Article XX. This article will provide a comprehensive analysis of the ambiguous national security exception through an examination of the current discourse and case law. It will first describe the scope and justiciability of Article XX as well as Article XXI in order to demonstrate the foundations of the Articles and their limitations. In doing so, it will assess the use of both exceptions to analyse the invocation of the articles through the example of climate change. It will then discuss the non-controversial aspects of the national security provision in order demonstrate its justiciability and applicability. This article will further analyse the challenge of invoking the national security exception, and in doing so, incorporate a theoretical discussion on the WTO Panel's role in interpreting the national security exception. Finally, this article will provide an analysis on the future of the national security provision, elaborating on the issue of whether states are reluctant to submit Article XXI disputes to the WTO Panel.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 21 Flight MH370: International law and how we use it
    • Abstract: Monks, Shane
      This article arises out of a seminar given to the Queensland chapter of the Australian branch of the International Law Association on 7 August 2014, about the loss of Malaysia Airlines flight MH370. It considers the historical development of the body of international law that underpins international air transport, international law that is relevant to the search for the missing airliner and the investigation of what caused the accident, international law issues applicable if the airliner was harmed deliberately, and the recovery of damages for the losses sustained. It will also suggest some possible future legal developments. The title of this article reflects the fact that the MH370 incident provides a valuable illustration about the complexity and reach of international law, and how it operates as a real and effective legal system that is essential to our everyday lives.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 21 Coming to terms with a new role: The approach of the
           international court of justice to the interpretation of human rights
           treaties
    • Abstract: Gall, Chloe
      Human rights treaties are the principal source of human rights obligations at international law. The process of interpreting and applying these treaties has become an important function of regional human rights courts and bodies, and one that has led to the development of a 'special' approach to treaty interpretation. This article asks the following question: what occurs when a non-human rights body begins to play a role in the adjudication of human rights treaty disputes' This is a reality that the international legal community is now faced with in light of a number of recent cases heard by the International Court of Justice, the highest judicial arbiter of inter-state disputes. This article analyses the recent excursions the International Court of Justice has taken into the realm of human rights treaty interpretation. Ultimately, the author argues that the ICJ should take a teleological approach to interpreting human rights treaties in line with human rights courts and bodies. Such an approach will serve the dual purpose of enabling the ICJ to make significant contributions to the development of international human rights law and enhancing ICJ's own role in adjudicating human rights claims.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 The culture of international arbitration and the evolution of
           contract law [Book Review]
    • Abstract: D'Silva, Magdalene
      Review(s) of: The culture of international arbitration and the evolution of contract law, by Joshua Karton, (Oxford University Press, 2013), ISBN 978-0199658008, 296 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Transnational crime and human rights: Responses to human
           trafficking in the Greater Mekong Subregion [Book Review]
    • Abstract: Berg, Laurie
      Review(s) of: Transnational crime and human rights: Responses to human trafficking in the Greater Mekong Subregion, by Susan Kneebone and Julie Debeljak, (routledge, 2012), ISBN 978-0415594257, 296 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 ICSID case no ARB/10/5: 'Tidewater v Venezuela', decision on
           jurisdiction
    • Abstract: Yilmaz, Anil
      On 8 February 2013, an arbitration tribunal constituted under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States delivered its decision on jurisdiction in a case filed against the Bolivarian Republic of Venezuela ('Venezuela') by eight corporate entities ('Claimants'). The decision focused on whether Venezuela consented to submit disputes with the Claimants to ICSID. The bases of consent invoked by the Claimants were: (a) art 22 of the Venezuelan Law on the Promotion and Protection of Investments ('Investment Law'); and (b) the bilateral investment treaty between Venezuela and Barbados ('Venezuela-Barbados BIT'). Venezuela argued that neither of the instruments invoked by the Claimants could constitute valid consent under the ICSID Convention. In considering Venezuela's objections, the tribunal addressed two main questions. The first question was whether art 22 of the Investment Law constituted a standing offer to arbitrate under the ICSID Convention. The second question was whether insertion of an entity incorporated in Barbados into the upstream ownership structure of the Claimants' investment in Venezuela, allegedly in anticipation of the dispute, constituted abuse of the Venezuela-Barbados BIT.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Minister for Home Affairs of the Commonwealth v Zentai
    • Abstract: O'Brien, Melanie
      Australia has a lacklustre track record in the prosecution of war criminals and genocidaires, despite the existence of legislation enacted in 1945 and more comprehensive laws amending the Criminal Code Act 1995 (Cth) under the International Criminal Court (Consequential Amendments) Act 2002 (Cth). This has been a criticism levelled at the Australian governmental bodies responsible for investigation and prosecution over the past decade. In the 2012 Annual Report of Worldwide Investigation and Prosecution of Nazi War Criminals by the Simon Wiesenthal Center ('SWC'), Australia received a 'failing grade'. This grade was because Australia had the ability to take legal action against Holocaust perpetrators, but had failed to achieve significant positive results during the period under review. In April 2013, the SWC again allocated Australia a failing grade ('F-2'), with the decision discussed in this case note described as the 'most disappointing result in a specific case during the period under review'.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Eweida v United Kingdom
    • Abstract: Biddulph, Michelle; Newman, Dwight
      In January 2013, the European Court of Human Rights released its decision in Eweida v United Kingdom.1 The Court decided on applications in four freedom of religion cases, thus juxtaposing questions of religious clothing and its accommodation with more complex rights conflicts between religious beliefs and provision of services contrary to those beliefs. The Court ended the notion that the 'freedom to resign' resolves the former kind of case, although arguably it may still resolve the latter. Understanding why this is so, the progressive steps the Court has taken, and the questions it has failed to answer, requires some analysis. We commence with the facts, turn to the religious clothing context, then reflect more broadly on conflicts between freedom of religion and other rights, particularly in the context of comparative jurisprudence that the Court failed to examine.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Sitting on solid ground: The international legal basis for
           overseas sittings of the military court of Australia
    • Abstract: Wall, Patrick
      Legislation to establish the Military Court of Australia lapsed when the Commonwealth Parliament was prorogued ahead of the 2013 Australian federal election. Like the legislation that created the Australian Military Court (which the High Court declared unconstitutional in 2009), it purported to allow for court sittings on foreign soil. Before sitting in another country, however, the Military Court of Australia would need to have regard to 'the international legal basis' for its own presence there. This article examines the circumstances in which the proposed Court's power to sit in another country would be exercised in accordance with international law. It argues that an overseas sitting of the Military Court of Australia would be, as a matter of public international law, fundamentally different to an overseas hearing before any of the current mechanisms of Australian military justice. The article concludes that the Military Court of Australia would only have a sound 'international legal basis' for sitting in another country if it had express or implied consent to do so, or if Australia was engaged in a military occupation of the territory on which it sat.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 'Kiobel', the Alien Tort statute and the common law: Human
           rights litigation in this 'present, imperfect world'
    • Abstract: Webb, Owen
      In April 2013, the United States Supreme Court handed down its decision in Kiobel v Royal Dutch Petroleum, a ruling of great significance for those seeking to hold multinational corporations responsible for human rights violations in developing countries. For some time, non-US nationals have brought civil claims against corporations for violations of international law under an antiquated jurisdictional provision known as the 'Alien Tort Statute'. The success or failure of these actions has often turned on the various US District and Circuit courts' interpretations of this provision. Finally, after years of inconsistent application among lower courts, the Supreme Court in Kiobel has ruled that the Alien Tort Statute does not overcome the 'presumption against extraterritoriality', and will therefore not permit actions unless the circumstances of the case sufficiently 'touch and concern' the territorial jurisdiction of the United States. This paper considers the implications of this decision, and argues that certain questions carefully left open by the Court are likely to be answered, in the future, in further constraint of Alien Tort Statute jurisdiction. As a result, human rights plaintiffs are likely to shift their focus towards bringing common law tort claims in alternative forums. This paper explores the difficulties faced by plaintiffs seeking to do so in US state courts, Australia or the UK. If such difficulties can be overcome, however, for example through 'foreign direct liability' litigation, tort law does however provide plaintiffs with a number of advantages over the Alien Tort Statute. Indeed, history suggests that pursuing multinational corporations in common law tort may be more successful than ATS litigation has ever been in obtaining tangible redress for claimants.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 The implications of 'Romak v Uzbekistan' for defining the
           concept of investment
    • Abstract: Musurmanov, Ilyas U
      The definition of 'investment' has become one of the most controversial issues in the determination of jurisdiction on investment arbitration. Several approaches to interpreting the term 'have appeared in international investment arbitration. This article traces recent developments and discusses the case of Romak v Uzbekistan, where the respondent argued that delivery of more than 40 000 tons of cereal did not constitute investment in accordance with the applicable Bilateral Investment Treaty ('BIT'). The tribunal in Romak advanced a new approach to the interpretation of the term 'investment'. This article analyses the implications of the case for BIT-making, legal doctrine, and international investment arbitration. It argues that the approach applied by the tribunal in Romak evinces the likelihood of smoothing differences in various tribunals' interpretation of the term 'investment'.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Amici Curiae in investor-state arbitrations: Two recent
           decisions
    • Abstract: Bastin, Lucas
      In decisions in the joined arbitrations of von Pezold v Zimbabwe and Border Timbers v Zimbabwe and in the Apotex v United States arbitration, investor-state arbitral tribunals rejected applications by non-disputing parties to participate as amici curiae. Some aspects of the reasoning rejecting the requests were entirely orthodox, such as the tribunals' reliance on the lack of assistance that the amici curiae would provide, their lack of an interest in the dispute and their inability to address an issue within the scope of the dispute. However, the decision in von Pezold/Border Timbers v Zimbabwe also used an unorthodox reason for rejecting the amici curiae request, namely that amici curiae must satisfy a criterion of 'apparent independence'. In doing so, the tribunal rejected the amici curiae request on a basis which was both unprecedented in investor-state arbitration and questionable in its approach to textual interpretation and the consequences it generated.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Conceptualising Australian citizenship for children: A human
           rights perspective
    • Abstract: Rubenstein, Kim; Field, Jacqueline
      Australia's first National Children's Commissioner was appointed in 2013. One of the Commissioner's key functions is to examine whether Commonwealth legislation recognises and protects the human rights of children in Australia. A fundamental starting point for this examination is Australia's citizenship law. Australian citizenship is governed by the Australian Citizenship Act 2007 (Cth) ('Act'). In this article, we highlight two key issues for the Commissioner in examining the Act. First, citizenship is a concept that extends beyond the Act. While the Act confers citizenship as a legal status, children's citizenship can also be conceptualised as rights, political engagement and identity. These aspects are reflected by the United Nations Convention on the Rights of the Child ('Convention'). Second, when examined in light of the Convention, the Act is deficient in the way it protects the human rights of children. The Act lacks flexibility for decisionmakers to consider children's best interests and fails to protect their human rights of non-discrimination, participation and identity. These deficiencies form the basis of an argument for reform.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Indefinite security detention and refugee children and families
           in Australia: International human rights law dimensions
    • Abstract: Saul, Ben
      Under Australian law, the children of refugee parents executively assessed as national security risks can be indefinitely held in administrative detention without effective judicial safeguards. This article examines the international human rights law impacts of adverse security assessments affecting refugee parents, children and families in Australian immigration detention centres. It argues that the Australian approach involves arbitrary interference in family life under the International Covenant on Civil and Political Rights ('ICCPR') art 17(1) and a related failure to protect family life under the ICCPR art 23(1); a failure to take into account the best interests of the child under art 3(1) of the Convention on the Rights of the Child ('CRC') and art 24(1) of the ICCPR; and arbitrary detention of children under art 9 of the ICCPR and art 37(b) of the CRC. In doing so it indicates the procedural reforms necessary to bring Australian law and practice into conformity with its international obligations.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Of relative rights and putative children: Rethinking the
           critical framework for the protection of refugee children and youth
    • Abstract: Crock, Mary E
      This article is about a complex policy problem for governments everywhere: the phenomenon of children and young people presenting as forced migrants, either alone or in the company of responsible adults. The special vulnerability of children in situations of displacement is apparent and (typically) is readily acknowledged. Rather than responding directly and simply to the needs of the embodied child, however, governments have found serial justifications for denying protection and for adopting policies that harm, rather than help, the children in question. Using as a case study Australia's recent response to children presenting as unauthorised maritime arrivals ('UMA'), the article explores the discourses that have developed to deny children rights that are enshrined in international law. I argue that these have centred around three disabling ideas. The first is that the rights of children are compromised by their standing relative to the rights and interests of adults. The second is that the rights of refugee children and youth are affected by their status as non-citizens or aliens. This is because rights vested under international law will only have meaning if 'enabled' by domestic law. The third challenge to the notion of rights in refugee children and youth revolves around the perceived imperative that countries adopt measures to deter irregular migration. The idea is that policies must be set so as to deter adults from placing refugee children and youth in situations of peril by sending them alone in search of asylum. The protection of the putative child is invoked in defence of policies that are acutely harmful to embodied children. In Australia's case, examples of such policies are found in the mandatory detention of undocumented refugee children and youth and the decision to deflect UMA children and youth to regional processing centres on Nauru and Papua New Guinea's Manus Island. Without denying the difficulties governments face in these matters, I argue that Australia's laws and policies have now reached a tipping point. The very concept that refugee children and youth might be rights bearers has been put in question.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Comment: The CRPD and children with disabilities
    • Abstract: McCallum, Ron; Martin, Hannah
      This comment considers how international law responds to children with disabilities, particularly children with disabilities in situations of forced migration. We argue that the Convention on the Rights of Persons with Disabilities ('CRPD') revolutionises the way international law responds to people with disabilities, particularly children. This comment recognises the established status of children as rights bearers deserving of special protection under international law and examines how the CRPD interacts with and builds upon two existing human rights treaties. We argue that the CRPD and its expert monitoring committee are uniquely placed to offer a constructive, rights-based framework for the protection of children with disabilities.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Address: Creating new futures for all children: The promise of
           international human rights law
    • Abstract: Lee, Yanghee
      This address focuses on the intersection of a series of difficult issues in the area of human rights: childhood, youth, disability, and situations of forced migration. A brief historical background to the efforts made by the international community in setting norms and standards to create a new future for all children. Two very important international instruments, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities are discussed. References are made to UN Committee on the Rights of the Child's outcome recommendations regarding children and their rights in the context of migration. The address concludes with an introduction to the newly adopted Optional Protocol to the Convention on the Rights of the Child on a communications procedure.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 20 Introduction to a mini symposium: Creating new futures for all:
           International law and the protection of migrant children at risk
    • PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 The multilateralization of international investment law [Book
           Review]
    • Abstract: Brown, Chester
      Review(s) of: The multilateralization of international investment law, by Stephan W Schill, (Cambridge University Press, 2009), ISBN 978-0-521-76236-6, 451 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Necessity and national emergency clauses: Sovereignty in modern
           treaty interpretation [Book Review]
    • Abstract: Heger, Zelie
      Review(s) of: Necessity and national emergency clauses: Sovereignty in modern treaty interpretation, by Diane A Desierto, (Martinus Nijhoff, 2012), ISBN 978-90-04-21852-9, 411 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Hybrid and internationalised criminal tribunals: Selected
           jurisdictional issues [Book Review]
    • Abstract: Mehigan, James
      Review(s) of: Hybrid and internationalised criminal tribunals: Selected jurisdictional issues, by Sarah Williams, (Hart, 2012), ISBN 978-1-84113-672-1, 470 pages

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Momcilovic v the queen (2011) 245 CLR 1
    • Abstract: Tully, Stephen
      In Momcilovic v The Queen,1 the High Court considered several issues of major public importance.2 These included the effect of 'reverse onus' provisions and whether Victorian legislation was inconsistent with Commonwealth law and therefore invalid under s 109 of the Australian Constitution. This case note instead focuses on how key provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter') were construed and whether the operation of that Act altered the orthodox approach to statutory construction.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Al-Skeini v United Kingdom (2011) 53 EHRR 18
    • Abstract: Collins, Pauline
      Al-Skeini v United Kingdom concerned the treatment of Iraqi civilians and detainees by UK soldiers during the occupation phase of the Iraq conflict. The case highlights the impact of human rights law, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms ('ECHR') and Human Rights Act 1998 (UK) ('Human Rights Act'), on the military. The shooting of Iraqi civilians in five of the six matters before the Court was held by three tiers of the UK civil courts to be outside the ECHR's jurisdiction and therefore did not fall under the obligations of the UK in Iraq in relation to actions by its soldiers. The UK courts adopted this approach after interpreting and following the Grand Chamber of the European Court of Human Rights decision in Banković v Belgium.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 SGS societe generale de surveillance SA v the republic of
           Paraguay, decision on jurisdiction, case no arb/07/29, international
           centre for settlement of investment disputes
    • Abstract: Yadava, Raag
      The institution of investment arbitration has transformed the landscape of investment protection. Substantive norms aside, investors' 'ius standi' to directly invoke the arbitration procedure has infused a sense of security in cross-border investment. Free from the political uncertainty of diplomatic protection and (the often inadequate) local remedies, this so-called 'arbitration without privity' mitigates the substantial political risk associated with foreign investment.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Jurisdictional immunities of the state (Germany v Italy; Greece
           intervening) (judgment) (international court of justice, general list no
           143, 3 February 2012)
    • Abstract: Walker, Lee
      On 3 February 2012, the International Court of Justice ('ICJ') adjudged a dispute between the Federal Republic of Germany and the Italian Republic - the Hellenic Republic intervening. The dispute concerned Germany's purported immunity in Italian courts for atrocities committed by German troops during World War II.1 Ultimately, Germany's immunity was upheld, marking a pivotal moment in foreign sovereign immunity and bringing to a head years of conjecture about what may be loosely termed a human rights exception to state immunity. The ruling should prove fundamental to further development in the field. This note first briefly summarises the current state of foreign sovereign immunity. A history of the case follows, outlining the material facts, and setting out pertinent legal issues, arguments made by the parties and an analysis of the ruling.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 China - measures related to exportation of various raw
           materials, report of the appellate body
    • Abstract: Gascoigne, Catherine E
      On 30 January 2012, the Appellate Body of the World Trade Organization ('WTO') published its decision in relation to China - Measures Related to Exportation of Various Raw Materials. The dispute was between China and the United States, Mexico and the European Union ('EU') ('the complainants'). This case note examines the Appellate Body's findings on the applicability of art XX of the General Agreement on Tariffs and Trade 1994 as an exception to para 11.3 of the Accession of the People's Republic of China. Although the appeal also raised issues concerning the Understanding on Rules and Procedures Governing the Settlement of Disputes and the interpretation and application of arts XI(2)(a) and XX(g) of GATT 1994, a discussion of these issues is beyond the scope of this case note.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 July
           2011)
    • Abstract: Whittle, Devon
      On 18 July 2011, the United Nations Human Rights Committee (the 'Committee') published its views in Nystrom v Australia. In Nystrom, the Committee expanded the scope of art 12(4) of the International Covenant on Civil and Political Rights, finding that it could apply to non-citizens where they had sufficient ties to a country. This significantly weakens the nexus previously required by the Committee between art 12(4) and nationality. This case note summarises the findings in Nystrom in relation to art 12(4) and briefly discusses the Committee's reasoning in light of its past views. While the Committee in Nystrom also found violations of arts 17 and 23 of the ICCPR and was asked to consider a number of other alleged rights violations, this note does not consider those aspects of the Committee's reasoning.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Deep seabed mining: Implications of seabed disputes chamber's
           advisory opinion
    • Abstract: Poisel, Tim
      In February 2011, the Seabed Disputes Chamber unanimously adopted an advisory opinion: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area. This opinion is significant as it provides guidance on the governance of activities in the Area and clarifies the obligations of a sponsoring state, and its potential liabilities, in circumstances where damage is caused by the activities of the sponsored entity in the Area. Importantly, the opinion sets the highest standards of due diligence for all sponsoring states, irrespective of whether it is a developed or developing state and its financial capabilities. While not absolutely protecting the Area from the risk of environmental harm, the opinion will ensure that deep seabed mining activities operate within strict limits with the aim of preventing harm to the common heritage of mankind.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 International arbitration in Australia: Selected case notes and
           trends
    • Abstract: Monichino, Albert; Nottage, Luke; Hu, Diana
      This article briefly considers caseload statistics and aggregate trends regarding International Arbitration Act 1974 (Cth) matters heard by Australian courts. It then provides selective case notes on 11 judgments rendered since 2010, querying the reasoning and application of the Act in several cases. In light also of some drafting infelicities in the 2010 amendments, the article concludes that Australia should consider another round of broader statutory reforms. This should be inspired by the legislative activism of major Asia-Pacific venues for international commercial arbitration, especially Hong Kong and Singapore, with similar legislation based on the UNCITRAL Model Law.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Recent judicial aberrations in Australian private international
           law
    • Abstract: Harder, Sirko
      This article discusses three Australian first-instance decisions of 2010 on matters of private international law. The cases are Singh v Singh, where an injunction restraining a person from participating in foreign criminal proceedings was granted; Independent Trustee Services Ltd v Morris, where a foreign judgment was recognised at common law on the ground that the judgment-debtor was a citizen of a foreign country; and Nygh v Kasey, where a marriage celebrated in a foreign country without complying with the form requirements of that country's law was recognised at common law. This article criticises the three decisions with regard to their outcome and the methodology used.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Not yet out of the woods: Australia's attempt to regulate
           illegal timber imports and world trade organization obligations
    • Abstract: Saul, Ben; Stephens, Tim
      The Illegal Logging Prohibition Bill, introduced in the Commonwealth Parliament in 2011, gives effect to a 2010 election commitment of the Gillard government to restrict imports of illegally logged timber products into Australia. This article assesses whether the Bill safely navigates the competing norms and values that the international trade and environmental law regimes embody. It finds that while the Bill pursues legitimate environmental purposes, aspects of it raise potential problems of incompatibility with WTO law because it takes a decentralised national standards approach. The article also considers the main regulatory alternative to the Bill, namely the creation of uniform Australian standards for all timber products (embracing both imports and locally produced timber) which would meet minimum requirements of sustainability, biological diversity and pollution control. It is argued that this encounters its own trade law difficulties. The article concludes by placing the trade law issues in the broader political context of WTO dispute settlement, and contends that the Bill has a reasonable chance of operating successfully and stimulating similar regulatory approaches in other timber-importing jurisdictions.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Lifting the organisational veil: Positive obligations of the
           European union following accession to the European convention on human
           rights
    • Abstract: Stubberfield, Catherine
      This article examines the likely positive obligations of the European Union ('EU') following its approaching accession to the European Convention on Human Rights. By focusing on the Dublin Regulation and recent asylum seeker returns to Greece as breaches of the prohibition on inhuman and degrading treatment, the article demonstrates that in dysfunctional areas of EU regulation, quite concrete changes will be necessary in order to meet the standards required thus far by the approach of the European Court of Human Rights and general principles of international law. This seems all the more probable given the prescriptive nature of the relationship between the EU and member states in the area of immigration. Ultimately, the article argues that current EU law fails to meet the requisite human rights obligations to protect and prevent, investigate, deter and prosecute. In the absence of reforms including a proposed suspension of transfers mechanism, the article concludes that the EU is likely to be condemned by the European Court of Human Rights for failing to meet its obligations under art 3 of the European Convention on Human Rights.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Barriers to universal membership of the world trade organization
    • Abstract: Toohey, Lisa
      This article examines the feasibility of achieving the World Trade Organization's stated aspiration of achieving universal membership. The article first examines the requirements for accession, and argues that the commonly-used definition of universal membership - accession to the WTO by all members of the United Nations - is too narrow having regard to the accession provisions of the relevant WTO Agreements. A broader interpretation of the concept of universal accession reveals the true extent of the 'accession issue' by showing the number of accessions that may be negotiated in future. The article then considers the potential for truly universal membership of the WTO, and the obstacles to that being achieved. This broader potential membership includes a very high proportion of less- and least-developed countries, micro-states, and transitional economies, all of whichThis article examines the feasibility of achieving the World Trade Organization's stated aspiration of achieving universal membership. The article first examines the requirements for accession, and argues that the commonly-used definition of universal membership - accession to the WTO by all members of the United Nations - is too narrow having regard to the accession provisions of the relevant WTO Agreements. A broader interpretation of the concept of universal accession reveals the true extent of the 'accession issue' by showing the number of accessions that may be negotiated in future. The article then considers the potential for truly universal membership of the WTO, and the obstacles to that being achieved. This broader potential membership includes a very high proportion of less- and least-developed countries, micro-states, and transitional economies, all of which face particular accession challenges that are examined in the final part of the article.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Splendid isolation': Australia as a destination for 'libel
           tourism'
    • Abstract: Rolph, David
      'Libel tourism' has been a source of tension between the United States and the United Kingdom. It highlights the difference not only between these countries' defamation laws but also their conflict of laws rules. Legislation to combat the real or perceived problem of 'libel tourism' has been proposed or enacted in the United States and the United Kingdom. This article analyses the phenomenon of 'libel tourism' and seeks to define the concept and to ascertain its incidence. It examines the Ehrenfeld v Bin Mahfouz litigation and the legislative reforms it provoked. It then considers the prospect that Australia will prove an attractive destination for 'libel tourism'.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 Protecting Australian cyberspace: Are our international lawyers
           ready'
    • Abstract: Tully, Stephen
      Cyberspace is an important element of Australia's critical national infrastructure. Recent policy developments within this field seek to maintain economic opportunity and protect national security. This article discusses four contemporary threats posed to the Australian military and civilian electronic information infrastructure: 'cyber war' conducted by hostile states, 'cyber conflicts' by foreign combatants, attacks committed by 'cyberterrorists' and the commission of 'cybercrimes'. This article reviews the existing international legal paradigms relevant to each and identifies the issues raised from a survey of the existing literature. It concludes that each paradigm is presently inadequate for addressing the nature of these threats and calls for further contributions from Australian government, military and international lawyers to articulate a distinctive national perspective on these questions.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 To bind or not to bind: The United Nations declaration on the
           rights of indigenous peoples five years on
    • Abstract: Davis, Megan
      In 2012, the United Nations Declaration on the Rights of Indigenous Peoples ('UNDRIP') celebrates its fifth birthday. Since its adoption by the UN General Assembly in 2007, the UNDRIP has inspired expansive academic commentary. This literature has scrutinised every aspect of the UNDRIP, from questioning the strategy and motives of its Indigenous co-drafters, to its ostensible delimiting of Indigenous peoples' right to self-determination in international law, as well as the controversial unilateral expansion by the UN Permanent Forum on Indigenous Issues of its mandate to be the supervisory mechanism of state's implementation of the UNDRIP. In particular, there is acute interest in the UNDRIP's status in customary international law, no doubt generated by the over-eager scholars who claimed at the outset that some of the rights contained within the Declaration already form part of customary international law. The anxiety over whether aspects of the UNDRIP are binding or not binding is palpable, yet less attention is paid by the purveyors of this interpretation to the limitations of customary international law and the unrealistic expectations such speculation creates in Indigenous communities. Given the scrutiny it has attracted, this article traces some of the key themes emerging from the somewhat discursive multi-disciplinary commentary of the past five years, in order to reflect on the significance of the UNDRIP's fifth anniversary.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 The future of private international law in Australia
    • Abstract: Bell, Andrew
      This is an edited transcript of observations made by Andrew Bell SC in the course of a seminar on 16 May 2011 on 'The Future of Private International Law in Australia'.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 19 The future of private international law in Australia
    • Abstract: Dickinson, Andrew
      In a seminar held at the University of Sydney on 16 May 2011, four speakers were invited to consider 'The Future of Private International Law in Australia' from different perspectives - judge, lawyer in government, practitioner and academic. Unsurprisingly, given the breadth of the topic, the subject matter of the presentations varied widely. Justice Paul Le Gay Brereton of the New South Wales Supreme Court addressed the difficulties inherent in the proof of foreign law, and recent developments in New South Wales practice in this area. Thomas John of the Commonwealth Attorney-General's Department considered Australia's approach to the regulation of private international law issues at an international level. Dr Andrew Bell SC of the New South Wales Bar looked at recurring themes and likely future trends in Australian case law in the area. In the final presentation, based on this paper, the author considered two related topics. First, the development and recognition of a unified body of Australian private international law. Second, the case for reform of the currently diverse regimes regulating the personal jurisdiction of courts in Australia. The author argues that the subject has now developed and matured to a point where the label 'Australian private international law' is justified in two of the three key areas: applicable law and the recognition and enforcement of judgments. He urges reform of federal and state rules governing personal jurisdiction, by a process of harmonisation, in order to complete the last side of the Australian private international law triangle.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Corruption and human rights in India: Comparative perspectives
           on transparency and good governance [Book Review]
    • Abstract: Kumar, Miiko
      Review(s) of: Corruption and human rights in India: Comparative perspectives on transparency and good governance, by C Raj Kumar, (OUP India, 2011), ISBN 978-0-19-807732-9, 212 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 The draft civil code of the people's republic of China: English
           translation [Book Review]
    • Abstract: Bath, Vivienne
      Review(s) of: The draft civil code of the people's republic of China: English translation, by Liang Huixing, (Prepared by the Legislative Research Group of the Chinese Academy of Social Sciences) (Martinus Nijhoff, 2010), ISBN 978-9-00419-042-9, 550 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 The institutionalization of torture by the bush administration
           [Book Review]
    • Abstract: Bones, Kate; Saul, Ben
      Review(s) of: The institutionalization of torture by the bush administration, by M Cherif Bassiouni, (Intersentia, 2010), ISBN 978-94-000-0005-6, 301 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 The international law of the sea [Book Review]
    • Abstract: Serdy, Andrew
      Review(s) of: The international law of the sea, by Donald R Rothwell and Tim Stephens, (Hart, 2010), ISBN 978-1-84113-257-0, 516 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Morrison v National Australia Bank Ltd 561 US (2010)
    • Abstract: Pender, James; Kerridge, Sally
      The United States (US) Supreme Court recently overturned more than 40 years of US Federal Court of Appeal jurisprudence in holding that US anti-fraud provisions do not apply to securities listed on a non-US stock exchange, even if the alleged fraud occurs or has an effect within the US or on US citizens. In determining whether US anti-fraud provisions apply to securities fraud, US courts traditionally applied the 'conduct and effect' test. This test required courts to firstly decide whether the alleged fraudulent conduct had occurred in the US, and secondly, whether it had a substantial effect in the US or upon US citizens.1However, in Morrison v National Australia Bank Ltd, the Supreme Court adopted a new 'transactional' test. Under this test, the Court held that US anti-fraud provisions will only apply to: 1. transactions in securities that either occur in the US; or 2. transactions in securities that are listed on a US stock exchange.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Holder, Attorney General v Humanitarian Law Project 561 US
           (2010): Does training in international humanitarian law and human rights
           law constitute 'material support to terrorism''
    • Abstract: Walther, Pernille; Kessing, Peter Vedel
      Since 11 September 2001, there has been nationally and internationally a continued expansion in the scope of criminal offences related to terrorism. Specific acts of terrorism - ranging from, inter alia, offences against aircrafts to taking of hostages - have been defined and criminalised in 16 specific international conventions against terrorism.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Appellate body report, Australia - measures affecting the
           importation of apples from New Zealand, WTO Doc WT/DS367/AB/R (29 November
           2010)
    • Abstract: Lennings, Nicholas
      The place of agriculture under the World Trade Organization (WTO) and its predecessor, the General Agreement on Tariffs and Trade (GATT), has, for some time, been somewhat vexed. Indeed, the road to the incorporation of agriculture under the WTO's specific jurisdiction was a long one. GATT had limited scope to deal with issues relating to agriculture until the finalisation of the Uruguay Round and the creation of the WTO. Nations were not prepared, and the proliferation of disputes in this area continues to demonstrate a continuing reluctance, to cease subsidising domestic farmers. The Uruguay Round, which resulted in a number of agriculture-specific agreements, after much lobbying by the 'Cairns Group', was finally signed at Marrakesh on 15 April 1994, more than seven years after initial negotiations commenced in September 1986.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Interlocutory decision on the applicable law: Terrorism,
           conspiracy, homicide, perpetration, cumulative charging (United Nations
           special tribunal for Lebanon, appeals chamber, case no STL-11-01/I, 16
           February 2011)
    • Abstract: Bernhaut, Martin
      The mandate of the United Nations (UN) Special Tribunal for Lebanon is to prosecute persons responsible for the attack of 14 February 2005 in Beirut, which resulted in the death of the former Lebanese Prime Minister Rafik Hariri and the death and injury of many more persons, as well as additional attacks connected with that killing. The UN and the Republic of Lebanon first negotiated an agreement on the establishment of a hybrid international and domestic law tribunal pursuant to Security Council Resolution 1664 (2006). Further to Security Council Resolution 1757 (2007), the Statute of the Special Tribunal entered into force on 10 June 2007.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Habib v Commonwealth of Australia [2010] FCAFC 12 (25 February
           2010)
    • Abstract: Nyst, Carly
      On 4 October 2001, three days before the commencement of United States (US) combat operations in Afghanistan, dual Australian-Egyptian citizen Mamdouh Habib was arrested in Pakistan by Pakistani authorities assisted by US officials. For the following 40 months, Mr Habib was detained in Pakistan, Egypt, Afghanistan and Guantanamo Bay. Mr Habib alleges that during this time he was subjected to severe mistreatment, amounting to torture, at the instigation or with the knowledge or assistance of US authorities. Throughout, Mr Habib claims, Australian authorities were implicated in his mistreatment.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Plaintiff M70/2011 v Minister for Immigration and Citizenship;
           Plaintiff M106/2011 v Minister for Immigration and Citizenship [2011] HCA
           32 (31 August 2011)
    • Abstract: Hart, Naomi
      On 25 July 2011, the Australian Government entered into an arrangement ('the Arrangement') with the Government of Malaysia. Under the Arrangement, Australia would transfer to Malaysia 800 asylum seekers who had arrived in Australia without visas. Their claims for refugee status would not be assessed prior to their transfer; rather, their claims would be processed in Malaysia by the United Nations High Commissioner for Refugees (UNHCR). In exchange, Australia committed to resettling 4000 refugees currently residing in Malaysia over four years. The Arrangement provided that all transferees would be treated 'with dignity and respect and in accordance with human rights standards', and that '[s]pecial procedures [would] be developed to deal with the special needs of vulnerable cases including unaccompanied minors'. Transferees found to be refugees would 'be referred to resettlement countries pursuant to the UNHCR's normal processes and criteria', while those assessed as not entitled to refugee status may be forcibly returned to their countries of origin (though Malaysia would provide Australia with the opportunity to consider protection claims under human rights treaties other than the Refugees Convention). The Arrangement represented a 'record of ... intentions and political commitments' but was not legally binding on either party.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 The survival of head of state immunity at the international
           criminal court
    • Abstract: Wardle, Phillip
      The recent cases that have been advanced by the Prosecutor of the International Criminal Court (ICC) against presidents Omar al-Bashir of Sudan, Muammar Gaddafi of Libya and Laurent Gbagbo of Cote d'Ivoire have attracted significant publicity. The first two have arrived at the Court as a result of Referrals from the United Nations Security Council and all represent novel incursions into the otherwise impenetrable immunity that incumbent heads of state have enjoyed under customary international law. This article will analyse the bases upon which a revocation of a head of state's immunity may be accomplished before the ICC, according to the prevailing rules of customary international law and the Rome Statute of the International Criminal Court. It will be argued that in the cases of al-Bashir and Gaddafi, neither the Court nor the Security Council has appropriately abrogated the absolute immunity from prosecution enjoyed by those defendants under customary international law.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Breaking in the 'unruly horse': The status of mandatory rules of
           law as a public policy basis for the non-enforcement of Arbitral awards
    • Abstract: Villiers, Luke
      International arbitration has increasingly emerged as a preferred method of dispute resolution in recent years as it offers parties to a contract the autonomy to choose the law that will govern any dispute arising from that contract. The law selected to govern a dispute arising from the contract may not, however, be the only law that the arbitrator is bound to consider when adjudicating the dispute. Questions remain as to whether an arbitrator is bound to apply the mandatory law of a party to the arbitration agreement where that party's law is not the governing law. If they are, what then is the effect of a failure by the arbitrator to apply such mandatory law on an arbitral award' This second question is the one that this article seeks to explore. In particular, it asks whether a failure to apply a State's mandatory law constitutes a public policy basis for refusing to enforce an award. Using the decision in Transfield v Pacific Hydro Ltd [2006] VSC 175 as a framework for exploring this question, this article considers the concept of 'public policy' and those circumstances in which various national legal systems have upheld a failure to apply a State's mandatory law as a basis for refusing to enforce an arbitral award. It then seeks to distil some common themes from such decisions to consider how the public policy exception may be applied in Australia by our national courts.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Innovative mechanisms for resolving or avoiding inter-state
           trade disputes in an Asia-Pacific regional free trade agreement
    • Abstract: Williams, Brett G
      This article elaborates upon ideas contributed to a symposium considering the possible shape of an Asia Pacific Community, including future trade arrangements within an Asia Pacific Community. It suggests some innovations in dispute settlement that could be considered for inclusion in such arrangements. The author suggests some innovative mechanisms by focussing on the way in which trade agreements and the dispute settlement mechanisms influence the internal political position of governments. The first mechanism would provide for a pre-quantification of the extent of retaliation that would be permitted should a complaint be successful. This mechanism would encourage respondent governments to focus earlier on weighing the potential loss of political support from exporters with any political support from import competing producers. The second mechanism would provide for free publication of an expert economic report on the economic welfare cost to the respondent of maintaining the protectionist measure subject to the complaint. This mechanism could increase the political weight attributed by the respondent government to the overall economic effects of the controversial measure. The paper further suggests that something similar to the second mechanism could be adopted as a separate transparency mechanism unrelated to dispute settlement. Such a mechanism might make it more likely that governments reform protectionist measures so as to avoiding the possibility of any legal dispute ever arising.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Novel treaty-based approaches to resolving international
           investment and tax disputes in the Asia-Pacific region
    • Abstract: Burch, Micah; Nottage, Luke
      Trade and investment treaties have proliferated throughout the Asia-Pacific region. Their dispute resolution mechanisms are important in entrenching market access commitments, especially when providing for direct claims by firms against States. However, the 'Global Financial Crisis' has also heightened calls to balance liberalisation with harmonised regulatory safeguards. The way investment treaties sometimes deal with certain claims over taxes imposed by host States, limiting the scope for investors to proceed with direct arbitration claims, suggests one innovative mechanism for resolving claims about other types of investment disputes. A second possibility is to redesign investment treaties covering such claims - like some contemporary double tax treaties, which have also burgeoned through the Asia-Pacific region based on the Organisation for Economic Co-operation and Development ('OECD') Model Tax Convention. Just as a taxpayer can be given rights under tax treaties to force treaty partner tax authorities to initiate an inter-state arbitration, an investor could be entitled to trigger an inter-state arbitration of other sensitive issues under an investment treaty. Both dispute resolution mechanisms address state sovereignty and public interest access, yet preserve a role for private interests. They represent only some of various possibilities for improving the treaty-based investor-state arbitration system, instead of abandoning it for Australia's future treaties as proposed by the Gillard Government's April 2011 'Trade Policy Statement'.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 Victim participation at the international criminal court and its
           impact on procedural fairness
    • Abstract: McAsey, Bridget
      The victim participation regime in operation at the International Criminal Court marks a departure from the minimal role that victims have played in international criminal law proceedings in the past. This article examines the practice of the International Criminal Court thus far in dealing with victim participation issues, with a view to assessing its impact on the rights of accused and procedural fairness generally. The article outlines the legal basis of the victim participation regime and provides an overview of the International Criminal Court's jurisprudence on victim participation, before discussing specific practical issues, as well as overarching issues. The author concludes that victim participation has a clearly discernible negative impact on procedural fairness, most prominently in its potential to cause delay.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 The nature, status and future of amnesties under international
           criminal law
    • Abstract: Perry, Robin
      The ultimate sovereign prerogative of States to begin and end wars and, in particular, to grant amnesties for crimes committed during those wars, has been significantly eroded by the expanding legal imperative to address crimes whose gravity compels prosecution. As this legal obligation continues to expand, the space for a non-legal accommodation of localised sociopolitical nuances of any given conflict is correspondingly diminished. Nevertheless, a cursory overview of legal and political philosophy challenges the assertion that prosecutions of international crimes are or ever can be exercises of pure, unadulterated legalism, uncontaminated by political influence. We should, on that basis, be willing to accept that there may, in some situations, be legitimate scope for utilising politics to address the perpetration of crimes during conflict beyond the courtroom. Ultimately, then, this article will seek to draw on contemporary legal and philosophical debate to map out the evolving position of international law with respect to amnesties and, on that basis, to identify international criminal law as a form of juridified international politics. This will provide a foundation for justifying recourse to amnesties, albeit in very limited circumstances, and to tentatively outline some practical guidelines for identifying those circumstances.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 From humanitarian discretion to complementary protection -
           reflections on the emergence of human rights-based refugee protection in
           Australia
    • Abstract: McAdam, Jane
      For many years, Australia stood alone among industrialised countries for its failure to provide 'complementary protection' to people who are not refugees, but who are nonetheless at risk of return to serious human rights abuses in their country of origin or former habitual residence. The passage of the Migration Amendment (Complementary Protection) Act 2011 (Cth) on 19 September 2011 heralded a new era in protection in Australia, codifying obligations under international human rights treaties which preclude countries from returning people to a risk of arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. As Australia enters this new protection paradigm, it is useful to reflect upon the way that decision-makers have dealt historically with humanitarian claims falling outside the refugee definition. Legislative precursors relating to protection on humanitarian and compassionate grounds may provide the key to why Parliament stalled for so long on codifying Australia's extended non-refoulement obligations in domestic law. This article pieces together and examines the legislative and jurisprudential development of humanitarian protection in Australia from the 1980s through to the present day, providing a timely contribution to take stock of where we have come from, and where we are going.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 The last frontier of human rights protection: Interrogating
           resistance to regional cooperation in the Asia-Pacific
    • Abstract: Saul, Ben; Mowbray, Jacqueline; Baghoomians, Irene
      Asia and the Pacific are the only regions in the world which are yet to establish cooperative regional mechanisms for the promotion and protection of human rights. This article briefly outlines the existing scope of human rights protections in the region. It then interrogates common explanations for the Asia-Pacific's reluctance to institutionalise regional protection of human rights, including that the region is too diverse for uniform standards; contrarily, that 'Asian values' differ from western 'international human rights standards'; that principles of sovereignty and non-intervention preclude external scrutiny; and that Asians have a cultural preference for conciliation over adjudication, ruling out quasi-judicial methods for protecting human rights. This article draws upon the experiences of establishing regional mechanisms in the Americas, Europe and Africa to demonstrate that claims about the uniqueness of the Asian experience are often exaggerated or inaccurate. Asian exceptionalism on human rights questions is often more fruitfully explained as an expression of strategic policy choices by Asian governments to avoid strengthening human rights protections, rather than by any inherent truths about the unsuitability of rights and institutions to Asian traditions, values, diversity or cultural preferences. This article draws lessons from other regions concerning the prospects for regional and institutional cooperation on human rights in the Asia-Pacific, including as regards the establishment of regional charters, commissions and courts.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 18 The Asian Development Bank and the role of human rights in the
           pursuit of just and sustainable development in the Asia-Pacific region: An
           advocacy role for Australia'
    • Abstract: Byrnes, Andrew
      The Asian Development Bank ('ADB') is an important institutional financer of development in the Asia-Pacific region: its primary mission is reducing poverty in the region by promoting sustainable and inclusive economic growth. ADB-financed activities have the potential to advance the enjoyment of human rights, but may also be open to the accusation that they sometimes facilitate violations of those rights by national governments. This article examines the ADB's approach to the explicit incorporation of international human rights norms into its policies and procedures, noting its general reluctance to embrace such norms. It argues that ADB member states, including Australia, are under international human rights treaty obligations to ensure that their participation in the activities of and their dealings with the ADB do not involve the violation of their human rights treaty obligations. The article discusses the reasons why, nonetheless, there is relatively little interest among ADB members or staff in the explicit incorporation of human rights standards in their work. It puts forward suggestions for further research, including a detailed and systematic review of ADB's record and the potential that explicit use of human rights framework might have for improving the effectiveness of the ADB's development work. Finally, the article argues that, as the ADB is an important development partner for Australia, and one in which Australian influence is significant and to which Australia's contributions are likely to increase in coming years, there is a strong case for Australia doing more now to encourage the explicit integration of human rights standards into the work of the ADB.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 The Gacaca Courts, Post-genocide Justice and Reconciliation in
           Rwanda: Justice without Lawyers [Book Review]
    • Abstract: Ramesh, Nithya; Saul, Ben
      The Phil Clark's book, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, talks about the gacaca trials in different aspects. The history, facts and various researched ideas regarding the courts are discussed in the article. Review(s) of: The Gacaca Courts, Post-genocide Justice and Reconciliation in Rwanda: Justice without Lawyers, by Phil Clark, (Cambridge University Press, Cambridge, 2010) ISBN 9780521193481, 388 pages. Includes footnotes.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Nuclear Law: The Law Applying to Nuclear Installations and
           Radioactive Substances in Its Historic Context [Book Review]
    • Abstract: Stephens, Tim
      Stephen Tromans is a well-known author, who has written the book, Nuclear Law: The Law Applying to Nuclear Installations and Radioactive Substances in its Historic Context. The article presents an analysis of the book, which talks about the numerous national, regional, as well as international regulations related to nuclear facilities and substances. Review(s) of: Nuclear Law: The Law Applying to Nuclear Installations and Radioactive Substances in Its Historic Context, by Stephen Tromans, (Hart Publishing, Oxford, 2nd edition, 2010) ISBN 9781841138572, 610 pages. Includes footnotes.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 International Law on Peacekeeping: A Study of Article 40 of the
           UN Charter [Book Review]
    • Abstract: Lee, Annabel; Saul, Ben
      Review(s) of: International Law on Peacekeeping: A Study of Article 40 of the UN Charter, by Hitoshi Nasu, (Martinus Nijhoff, Leiden, 2009) ISBN 9789004172265, 322 pages.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Law of Armed Conflict: International Humanitarian Law in War
           [Book Review]
    • Abstract: Clarke, Ben
      Law of Armed Conflict: International Humanitarian Law in War is a book, which provides lot of insight in the norms and operations of the International Humanitarian Law (IHL). The article discusses the significance and the various issues and topics of discussion of the book. Review(s) of: Law of Armed Conflict: International Humanitarian Law in War, by Gary D Solis, (Cambridge University Press, 2010) ISBN 9780521870887, 350 pages. Includes footnotes.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 The Humanitarian Face of the International Court of Justice: Its
           Contribution to Interpreting and Developing International Human Rights and
           Humanitarian Law Rules and Principles [Book Review]
    • Abstract: Cernic, Jernej Letnar
      The Humanitarian Face of the International Court of Justice is a famous book written by Gentian Zabri, which is shown to be extremely beneficial in the interpretation of the international human rights and humanitarian laws and principles. The article presents a complete review of the book. Review(s) of: The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles, by Gentian Zyberi, (Utrecht School of Human Rights Research Series, Volume 26, 2008) ISBN 9789050957922, 523 pages. Includes footnotes.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 'Zhang v Zemin' [2010] NSWCA 255 (5 October 2010)
    • Abstract: Mills, Dale
      The background, history, facts and the conclusion of the Zhang v Zheng case are discussed. The case highlights the liability exhibited by a foreign state because of the alleged acts of torture.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 'Zentai v Honourable Brendan O'Connor' (No 3) [2010] FCA 691 (2
           July 2010)
    • Abstract: Tully, Stephen
      Charles Zentai, a Hungarian soldier was accused by accused for killing a Jewish male with two accomplices. The article talks about the background, facts, laws and decisions related to the Zentai v Honourable Brendan O'Connor case.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 'The Queen v Tang' [2008] HCA 39 (28 August 2008)
    • Abstract: Harris, Callista; Yiannikas, Sofia
      The background, facts and the conclusion of the case, The Queen v Tang are analyzed. The case is related to the first convictions that took place in Australia and finally helped in presenting the interpretation and application of the international law in the country.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 'Kaing Guek Eav Alias Duch', Judgment, ECCC, Case No 001/18-07-
           2007/ECCC/TC (26 July 201
    • Abstract: Dubler, Robert
      Duch, also known as Kaing Guek Eav, the former director of Phnom Penh's detention and torture center has been found guilty for the crimes and inhuman activities in Khmer Rouge. The various jurisdictional issues and the final conclusion and decisions of the case are talked about in the article.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 'Prosecutor v Vujadin Popovic et al', Case No IT-05-88-T (15
           October 2009)
    • Abstract: Mitchell, Christopher
      The Prosecutor v Vujadin Popovic et al is one of the largest cases of the International Criminal Tribunal for the former Yugoslavia and is related to the different crime scenes in the United Nations. The article presents the case notes, explaining the background, findings and individual reports of the accused criminals.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Australia - Measures Affecting the 'Importation of Apples from
           New Zealand', WTO Panel Report, WTO Doc. WT/DS367/R (9 August 2010)
    • Abstract: Star, Shaun
      The Australia Apples Case is discussed to explain the various measures that have been implemented by the WTO for protecting the local agriculture of a member state from diseases, while protecting the imports taking place to that country. The panel decision and the various implications of the same on both Australia and New Zealand are analyzed in the article.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Case Concerning Pulp 'Mills on the River Uruguay (Argentina v
           Uruguay)' (Judgment) [2010] ICJ Rep (20 April 2010)
    • Abstract: Anton, Donald K
      Argentina has accused Uruguay of various breaches of the international law by building pulp mills on the River Uruguay at the International Court of Justice (ICJ). The article discusses the background, breaches, issues and finally the conclusion of the dispute.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Accordance with International Law of the Unilateral Declaration
           of Independence in respect of 'Kosovo', ICJ Advisory Opinion of 22 July
           2010, General List No. 141
    • Abstract: Christie, Emily
      The advisory opinion given by the International Court of Justice (ICJ) on the matter of the Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo is discussed. The article presents a complete analysis of the background, judgment and implications of the judgment of the case.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Symposium Paper: Afterthoughts - International Commercial
           Contracts and Arbitration
    • Abstract: Nottage, Luke
      This article mainly responds to Professor Bonell's three proposals (on page 177 of this volume) to expand usage of the UNIDROIT Principles of International Commercial Contracts (UPICC). As UPICC are primarily opt-in rules, they can be more ambitious than the United Nations Sales Convention (CISG). They also needed to be, being designed for all commercial contracts - including many more relational contracts. This imparts a somewhat different 'vibe' to UPICC, creating one impediment to the proposal for a UN Declaration urging interpretation of CISG in light of UPICC. As a formal reasoning based legal system, particularly in contract law, Australia also still struggles with such soft law initiatives. More promising will be law reform clarifying that courts, not just arbitrators in proceedings with the seat in Australia governed by the UNCITRAL Model Law on International Commercial Arbitration, are free to apply 'rules of law' - including UPICC - as the governing law. Elevating UPICC into a Model Law for International Commercial Contracts would also be useful. Australia could then adopt or adapt provisions as the basis for more comprehensive reform of its contract law. This would better mesh with burgeoning relational transactions, and many norms (such as good faith) could also extend to domestic dealings.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Symposium Paper: The UNIDROIT Principles - an Australian
           Perspective
    • Abstract: Finn, Paul
      The UNIDROIT Principles of International Commercial Contracts are analyzed in the context of the Australian law to determine its impact on the Australian domestic contract law. The various major themes revealed by these Principles are also being talked about.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Symposium Paper: Long-term Relational Contracts and the UNIDROIT
           Principles of International Commercial Contracts
    • Abstract: Robertson, Donald
      This article considers how the UNIDROIT Principles of International Commercial Contracts ('UPICC') respond to the typical form of commercial contract - the relational contract. Relational contracts provide a 'framework' for relationships, allowing them to develop over time. The temporal element gives rise to peculiar issues, including: the need to accommodate changed circumstances; whether to keep the contract alive or terminate it in response to changed circumstances; contractual discretions and the role of fault and good faith; the role of contractual mechanisms for dealing with supervening risks. The article considers various of the provisions of the UPICC dealing with these issues and concludes with a consideration of possible new directions, including the proposal for a future edition of the UPICC that certain contracts can be terminated for 'just cause'. As Australian commerce becomes more international in nature, we need a common framework - a 'new law merchant' - by which contractual relations are maintained. The Australian case law on relational contracts is thin. The UPICC will prod Australian courts and practitioners to grapple with these issues. However, that effort might stall if commercial parties believe the rules in the new law merchant are too open-textured, allowing too much judicial intervention in contracting practices.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Symposium Paper: The UNIDROIT Principles of International
           Commercial Contracts - Achievements in Practice and Prospects for the
           Future
    • Abstract: Bonell, Michael Joachim
      After a brief account of what the UNIDROIT Principles have so far achieved in practice, this article sets out some proposals as to how to promote them from their present status as a mere soft law instrument. A first step in that direction would be a formal recommendation by the United Nations Commission on International Trade Law ('UNCITRAL') to use the UNIDROIT Principles as a means of interpreting and supplementing the United Nations Convention of Contracts for the International Sale of Goods ('CISG'). Another even more significant promotion of their legal status would be a formal recognition of the parties' right to choose the Principles as the law governing their contract. A last - and under the circumstances - the most ambitious way of fostering the legal status of the UNIDROIT Principles would be to adopt them in the form of a model law or alternatively to refer to them as the general contract law in the context of a 'Global Commercial Code'.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 EU Financial Reform and New Opportunities for European
           Integration
    • Abstract: Longo, Michael
      To the extent that the European Union (EU) financial system is subject to structural deficiencies and constitutional challenges which render it less than optimal, the Global Financial Crisis (GFC) has brought those deficiencies squarely into view and issued the challenge for institutional reform to overcome them. While the coming into force of the Treaty of Lisbon will potentially smooth the path to further European integration and enable the new President of the EU and EU 'Foreign Minister' to communicate and pursue EU interests more vigorously, there is a need for greater fiscal power to be assigned to the EU level of governance to complement other reforms.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 The Applicability of International Law as Governing Law of State
           Contracts
    • Abstract: Dang, Hop
      Whether international law is applicable to govern state contracts has long been discussed from different perspectives. This article revisits this issue from the perspective of powers of courts and arbitral tribunals in applying international law. To this end, the article examines the choice of laws rules applicable in a number of courts and arbitral tribunals to determine whether they have the power to apply international law to state contracts in three situations: where the parties have chosen international law; where the parties have chosen only a national law; and where the parties have not chosen a law to govern the contract. The article concludes that a national court has no power to apply international law while arbitral tribunals are obliged to apply international law where it has been chosen by the parties. Most arbitral tribunals may also apply international law where the parties have not made a choice of law. However, where the parties have chosen only a national law to govern the contract, most courts and tribunals have no power to apply international law to it, except for special cases where the rules governing the court or the arbitral tribunal allow otherwise. While this article focuses on the applicability of international law, most of the discussions in it will equally apply to other forms of non-national law, in particular the choice of lex mercatoria, which is also found in a number of state contracts.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 International Jurisdiction Agreements and the Recognition and
           Enforcement of Judgments in Australian Litigation: Is There a Need for the
           Hague Convention on Choice of Court Agreements'
    • Abstract: Amin, Rosehana
      One of the difficulties faced by judges and practitioners when dealing with disputes arising from international commercial transactions is in the application and enforcement of a choice of court or foreign jurisdiction clause to determine the relevant court to adjudicate the dispute. This article explores the process undertaken by Australian courts when deciding whether they should exercise jurisdiction. In addition, the legal uncertainty arising from the distinction drawn between exclusive and non-exclusive jurisdiction clauses, and the ambiguous approach employed in the enforcement of a jurisdiction clause is considered. The Hague Conference on Private International Law has developed the Hague Convention on Choice of Courts Agreement 2005 and it is intended to promote the enforceability of exclusive choice of court agreements and establish the international recognition and enforcement of resulting judgments. This article considers whether Australia should, like its American and European counterparts, take steps to sign and ratify the Hague Convention. Further, the article also assesses the impact the Convention will have in resolving jurisdictional issues faced by Australian courts and the recognition and enforcement of a resulting decision. Finally, the article posits that the Hague Convention will clarify the uncertainties facing Australian courts in international jurisdictional disputes.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 A Dog without a Bark: A Critical Assessment of the International
           Law on Language Rights
    • Abstract: Abayasekara, Sadhana
      This article investigates the role of international law in language policy. The post-conflict, multilingual context of Sri Lanka brings out the limitations of international law in achieving linguistic justice. The current language rights regime in international law is piecemeal and tends to cover only minimal 'tolerance' rights. Sri Lanka's official language policy seems to surpass the demands of international law, yet there are significant failures of implementation. The Sri Lankan experience suggests that international law is unable to make a helpful intervention in state language policy while it is focused on encoding a single conception of linguistic justice. International law currently faces the problems of essentialism, universalism, political neutrality and the tension between linguistic diversity and nation-building. Possible alternatives include regional instruments and a case-by-case approach to language policy. International law could provide higher tolerance standards on language rights, but the onus falls on nation-states to implement promotion-oriented rights in the pursuit of linguistic justice.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Playing the Ace': 'Jus Cogens' Crimes and Functional
           Immunity in National Courts
    • Abstract: Zaman, Rebecca
      In Pinochet (No. 3), the UK House of Lords ruled that former Heads of State can be held accountable for the jus cogens crime of torture in foreign domestic courts, notwithstanding their pre-existing functional immunity. Since then, national courts have been seen as an avenue not only for prosecuting alleged torturers but also for seeking compensation for their victims. In a spate of cases before regional and national courts, including the House of Lords, claimants have argued that foreign States and their officials are no longer immune from private suits alleging torture. These arguments have been consistently rejected, with judicial majorities stressing that the longstanding right of State immunity from civil proceedings can only be overridden by positive law or impermissible conflict with a jus cogens norm. This article seeks to demonstrate that the international law principles and methodology the courts applied in deciding the civil claims cases are also applicable to Pinochet (No. 3) and irreconcilable with its outcome. When the way in which legal argument is framed determines the result, the real dispute is revealed to lie between competing methodologies of legal argument and competing concepts of justice and State consent in international law.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 Secondary Forms of Genocide and Command Responsibility under the
           Statutes of the ICTY, ICTR and ICC
    • Abstract: Petrosian, Tahlia
      This article examines the ways in which secondary forms of genocide and command responsibility have been integrated into the statutes of the ICTY, ICTR and ICC. These secondary forms of genocide are namely: conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. The integration of the Genocide Convention into the statutes of the ICTY and ICTR and the overlaps of these provisions with those pertaining to general individual criminal responsibility have given rise to some confusion in the jurisprudence regarding the appropriate application of these provisions. Nonetheless, the decisions of the ad hoc tribunals have overcome the difficulties inherent in their statutes, and, as a result, the case law has contributed significantly to the development of customary international law in relation to both secondary forms of genocide and command responsibility for secondary forms of genocide. These developments, however, are not recognised in the provisions of the Rome Statute. Furthermore, although it may be regarded as an attempt to normalise the crime of genocide in international law, the omission in the Rome Statute of parts of the Genocide Convention leads to substantial and possibly insurmountable inconsistencies between the Rome Statute and customary international law.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 17 'Direct Participation in Hostilities': A Legal and Practical
           Road Test of the International Committee of the Red Cross's Guidance
           through Afghanistan
    • Abstract: van der Toorn, Damien
      The increasing difficulty in distinguishing between peaceful civilians and irregular forces in modern conflicts has necessitated closer legal analysis of the phrase 'direct participation in hostilities' as used in the Geneva Conventions and Additional Protocols. The International Committee of the Red Cross's ('ICRC') 'Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law', published in June 2009, undertakes such an analysis. The Guidance may well have a significant influence on international and national tribunals considering the meaning of direct participation in hostilities, as well as the framing and implementation of rules of engagement by states for current and future operations. This article offers a critique of the Guidance both in terms of its process and nature, as well as its substantive legal analysis of the phrase. It also evaluates whether the ICRC's interpretation strikes a reasonable balance between the ability to achieve legitimate military objectives and the protection of civilians. Finally, it considers whether the interpretation results in a 'level legal playing field' for all parties to a conflict.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 16 The Tokyo International Military Tribunal: A Reappraisal [Book
           Review]
    • Abstract: Hart, Naomi; Saul, Ben
      Review(s) of: The Tokyo International Military Tribunal: A Reappraisal, by Neil Boister and Robert Cryer, (Oxford University Press, Oxford, 2008), ISBN 978-0-19-927852-7, 358 pages. Includes footnotes.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 16 'Kracke v Mental Health Review Board and Ors' [2009] VCAT 646
    • Abstract: Tully, Stephen
      The trial proceedings and decision given by the Victoria Civil and Administrative Tribunal in the 'Kracke v. Mental Health Review Board and Ors' [2009] VCAT 646 case using the 'Charter of Human Rights and Responsibilities Act 2006' are discussed. The Court ruled that the Mental Health Review Board has erred in not reviewing periodically the program of involuntary drug administration to a mentally ill patient Mr. Kracke, but maintained that drug administration to him should be continued even if he preferred its discontinuance as a human rights issue.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
  • Volume 16 'Commission of the European Communities v Sweden' [2009]
           (C-249/06) and 'Commission of the European Communities v Austria' [2009]
           (C-205/06) (European Court of Justice, 3 March 2009)
    • Abstract: Anagnostou, Peter
      Details of two separate judgements delivered by the European Court of Justice (ECJ) on March 3, 2009, in the 'Commission of the European Communities v. Sweden' [2009] (C-249/06) and 'Commission of the European Communities v. Austria' [2009] (C-205/26) cases are presented. The Court ruled that Austria and Sweden had breached obligations under article 307 of the 'Treaty Establishing the European Community' (EC Treaty) by continuing to maintain the bilateral investment treaties (BITs) entered into with third party countries before their accession to the European Union (E.U.), thus creating incompatibilities with E.U. law on capital movements.

      PubDate: Thu, 2 Nov 2017 11:47:35 GMT
       
 
 
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