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Publisher: RMIT Publishing   (Total: 403 journals)

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Showing 1 - 200 of 403 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: 13)
Aboriginal Child at School     Full-text available via subscription   (Followers: 4)
About Performance     Full-text available via subscription   (Followers: 10)
Access     Full-text available via subscription   (Followers: 26)
ACCESS: Critical Perspectives on Communication, Cultural & Policy Studies     Full-text available via subscription   (Followers: 11)
Accounting, Accountability & Performance     Full-text available via subscription   (Followers: 14)
ACORN : The J. of Perioperative Nursing in Australia     Full-text available via subscription   (Followers: 18, SJR: 0.103, h-index: 4)
Adelaide Law Review     Full-text available via subscription   (Followers: 20)
Advocate: Newsletter of the National Tertiary Education Union     Full-text available via subscription   (Followers: 2)
Agenda: A J. of Policy Analysis and Reform     Full-text available via subscription   (Followers: 1)
Agora     Full-text available via subscription   (Followers: 3)
Agricultural Commodities     Full-text available via subscription   (SJR: 0.102, h-index: 8)
Agricultural Science     Full-text available via subscription   (Followers: 5)
AIMA Bulletin     Full-text available via subscription   (Followers: 4)
AJP : The Australian J. of Pharmacy     Full-text available via subscription   (Followers: 9, SJR: 0.102, h-index: 5)
AlterNative: An Intl. J. of Indigenous Peoples     Full-text available via subscription   (Followers: 8)
Analysis     Full-text available via subscription   (Followers: 4)
Ancient History : Resources for Teachers     Full-text available via subscription   (Followers: 1)
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, SJR: 0.101, h-index: 11)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 4)
Appita J.: J. of the Technical Association of the Australian and New Zealand Pulp and Paper Industry     Full-text available via subscription   (Followers: 8, SJR: 0.18, h-index: 27)
AQ - Australian Quarterly     Full-text available via subscription   (Followers: 1)
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: 11)
Art Monthly Australia     Full-text available via subscription   (Followers: 8)
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: 0.672, h-index: 51)
Asia Pacific J. of Health Management     Full-text available via subscription   (Followers: 2)
Aurora J.     Full-text available via subscription  
Australasian Biotechnology     Full-text available via subscription   (Followers: 1, SJR: 0.1, h-index: 8)
Australasian Catholic Record, The     Full-text available via subscription   (Followers: 7)
Australasian Drama Studies     Full-text available via subscription   (SJR: 0.101, h-index: 2)
Australasian Epidemiologist     Full-text available via subscription  
Australasian Historical Archaeology     Full-text available via subscription   (Followers: 7)
Australasian J. of Early Childhood     Full-text available via subscription   (Followers: 4, SJR: 0.174, h-index: 1)
Australasian J. of Gifted Education     Full-text available via subscription   (Followers: 4, SJR: 0.115, h-index: 3)
Australasian J. of Human Security, The     Full-text available via subscription   (Followers: 3)
Australasian J. of Irish Studies, The     Full-text available via subscription   (Followers: 9)
Australasian J. of Regional Studies, The     Full-text available via subscription   (Followers: 2)
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: 2)
Australasian Music Research     Full-text available via subscription   (Followers: 3)
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: 38)
Australasian Review of African Studies, The     Full-text available via subscription   (Followers: 2)
Australian Aboriginal Studies     Full-text available via subscription   (Followers: 9, SJR: 0.109, h-index: 6)
Australian Advanced Aesthetics     Full-text available via subscription   (Followers: 4)
Australian Ageing Agenda     Full-text available via subscription   (Followers: 5)
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 Archaeology     Full-text available via subscription   (Followers: 12, SJR: 0.491, h-index: 15)
Australian Art Education     Full-text available via subscription   (Followers: 6)
Australian Bookseller & Publisher     Full-text available via subscription   (Followers: 1)
Australian Bulletin of Labour     Full-text available via subscription   (Followers: 4)
Australian Canegrower     Full-text available via subscription   (Followers: 2)
Australian Coeliac     Full-text available via subscription   (Followers: 2)
Australian Cottongrower, The     Full-text available via subscription   (Followers: 1)
Australian Educational and Developmental Psychologist, The     Full-text available via subscription   (Followers: 6, SJR: 0.143, h-index: 4)
Australian Family Physician     Full-text available via subscription   (Followers: 3, SJR: 0.364, h-index: 31)
Australian Field Ornithology     Full-text available via subscription   (Followers: 3, SJR: 0.141, h-index: 6)
Australian Forest Grower     Full-text available via subscription   (Followers: 3)
Australian Forestry     Full-text available via subscription   (Followers: 2, SJR: 0.252, h-index: 24)
Australian Grain     Full-text available via subscription   (Followers: 3)
Australian Holstein J.     Full-text available via subscription   (Followers: 1)
Australian Humanist, The     Full-text available via subscription   (Followers: 4)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 17)
Australian Intl. Law J.     Full-text available via subscription   (Followers: 26)
Australian J. of Acupuncture and Chinese Medicine     Full-text available via subscription   (Followers: 3, SJR: 0.106, h-index: 3)
Australian J. of Adult Learning     Full-text available via subscription   (Followers: 12, SJR: 0.159, h-index: 7)
Australian J. of Advanced Nursing     Full-text available via subscription   (Followers: 11, SJR: 0.225, h-index: 26)
Australian J. of Asian Law     Full-text available via subscription   (Followers: 5)
Australian J. of Cancer Nursing     Full-text available via subscription   (Followers: 10)
Australian J. of Civil Engineering     Full-text available via subscription   (Followers: 4, SJR: 0.17, h-index: 3)
Australian J. of Dyslexia and Learning Difficulties     Full-text available via subscription   (Followers: 8)
Australian J. of Emergency Management     Full-text available via subscription   (Followers: 6, SJR: 0.401, h-index: 18)
Australian J. of French Studies     Full-text available via subscription   (Followers: 6, SJR: 0.1, h-index: 5)
Australian J. of Herbal Medicine     Full-text available via subscription   (Followers: 3, SJR: 0.109, h-index: 7)
Australian J. of Language and Literacy, The     Full-text available via subscription   (Followers: 3, SJR: 0.399, h-index: 9)
Australian J. of Legal History     Full-text available via subscription   (Followers: 18)
Australian J. of Mechanical Engineering     Full-text available via subscription   (Followers: 3, SJR: 0.129, h-index: 4)
Australian J. of Medical Science     Full-text available via subscription   (Followers: 1, SJR: 0.122, h-index: 5)
Australian J. of Multi-Disciplinary Engineering     Full-text available via subscription   (Followers: 2)
Australian J. of Music Education     Full-text available via subscription   (Followers: 3)
Australian J. of Music Therapy     Full-text available via subscription   (Followers: 5)
Australian J. of Parapsychology     Full-text available via subscription   (Followers: 1)
Australian J. of Social Issues     Full-text available via subscription   (Followers: 6, SJR: 0.178, h-index: 20)
Australian J. of Structural Engineering     Full-text available via subscription   (Followers: 6, SJR: 0.296, h-index: 8)
Australian J. of Water Resources     Full-text available via subscription   (Followers: 6, SJR: 0.226, h-index: 9)
Australian J. on Volunteering     Full-text available via subscription   (Followers: 1)
Australian J.ism Review     Full-text available via subscription   (Followers: 7)
Australian Life Scientist     Full-text available via subscription   (Followers: 2, SJR: 0.1, h-index: 2)
Australian Literary Studies     Full-text available via subscription   (Followers: 5, SJR: 0.1, h-index: 6)
Australian Mathematics Teacher, The     Full-text available via subscription   (Followers: 7)
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: 2)
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: 2)
Australian Tax Forum     Full-text available via subscription   (Followers: 2)
Australian Universities' Review, The     Full-text available via subscription   (Followers: 3)
Australian Voice     Full-text available via subscription   (Followers: 4)
Bar News: The J. of the NSW Bar Association     Full-text available via subscription   (Followers: 5)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
BOCSAR NSW Alcohol Studies Bulletins     Full-text available via subscription   (Followers: 5)
Bookseller + Publisher Magazine     Full-text available via subscription   (Followers: 5)
Breastfeeding Review     Full-text available via subscription   (Followers: 16, SJR: 0.31, h-index: 19)
British Review of New Zealand Studies     Full-text available via subscription   (Followers: 3)
Brolga: An Australian J. about Dance     Full-text available via subscription   (Followers: 1)
Cancer Forum     Full-text available via subscription   (SJR: 0.143, h-index: 10)
Cardiovascular Medicine in General Practice     Full-text available via subscription   (Followers: 6)
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: 0.107, h-index: 3)
Chisholm Health Ethics Bulletin     Full-text available via subscription   (Followers: 1)
Church Heritage     Full-text available via subscription   (Followers: 8)
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: 0.567, h-index: 27)
Communication, Politics & Culture     Open Access   (Followers: 12)
Communities, Children and Families Australia     Full-text available via subscription   (Followers: 1)
Connect     Full-text available via subscription  
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: 11)
Critical Care and Resuscitation     Full-text available via subscription   (Followers: 15, SJR: 1.737, h-index: 24)
Cultural Studies Review     Full-text available via subscription   (Followers: 14)
Culture Scope     Full-text available via subscription   (Followers: 2)
Current Issues in Criminal Justice     Full-text available via subscription   (Followers: 8)
Dance Forum     Full-text available via subscription   (Followers: 2)
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: 14)
Developing Practice : The Child, Youth and Family Work J.     Full-text available via subscription   (Followers: 20)
Early Days: J. of the Royal Western Australian Historical Society     Full-text available via subscription  
Early Education     Full-text available via subscription   (Followers: 9)
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: 2, SJR: 0.331, h-index: 7)
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: 14)
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: 15)
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: 1)
English in Australia     Full-text available via subscription   (Followers: 2, SJR: 0.19, h-index: 6)
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: 4)
Eureka Street     Full-text available via subscription   (Followers: 4)
Extempore     Full-text available via subscription  
Family Matters     Full-text available via subscription   (Followers: 13, SJR: 0.259, h-index: 8)
Federal Law Review     Full-text available via subscription   (Followers: 22)
Fijian Studies: A J. of Contemporary Fiji     Full-text available via subscription  
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  
Frontline     Full-text available via subscription   (Followers: 19)
Future Times     Full-text available via subscription   (Followers: 1)
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  
Geographical Education     Full-text available via subscription   (Followers: 3)
Geriatric Medicine in General Practice     Full-text available via subscription   (Followers: 7)
Gestalt J. of Australia and New Zealand     Full-text available via subscription   (Followers: 2)
Globe, The     Full-text available via subscription   (Followers: 4)
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: 8)
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  
Headmark     Full-text available via subscription   (Followers: 1)
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: 10, SJR: 0.606, h-index: 19)
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: 3)
High Court Quarterly Review, The     Full-text available via subscription   (Followers: 3)
History of Economics Review     Full-text available via subscription   (Followers: 10)
HIV Australia     Full-text available via subscription   (Followers: 3)
HLA News     Full-text available via subscription   (Followers: 6)
Hong Kong J. of Emergency Medicine     Full-text available via subscription   (Followers: 2, SJR: 0.173, h-index: 7)
Idiom     Full-text available via subscription   (Followers: 1)
Impact     Full-text available via subscription   (Followers: 1)
InCite     Full-text available via subscription   (Followers: 24)
Indigenous Law Bulletin     Full-text available via subscription   (Followers: 14)
InPsych : The Bulletin of the Australian Psychological Society Ltd     Full-text available via subscription   (Followers: 3)
Inside Film: If     Full-text available via subscription   (Followers: 8)
Institute of Public Affairs Review: A Quarterly Review of Politics and Public Affairs, The     Full-text available via subscription   (Followers: 12)
Instyle     Full-text available via subscription   (Followers: 1)
Intellectual Disability Australasia     Full-text available via subscription   (Followers: 7)
Interaction     Full-text available via subscription   (Followers: 3)

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Journal Cover Australian International Law Journal
  [26 followers]  Follow
    
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   ISSN (Print) 1325-5029
   Published by RMIT Publishing Homepage  [403 journals]
  • 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 27 May 2013 08:27:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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: Mon, 18 Jun 2012 09:40:05 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.

      PubDate: Fri, 13 May 2011 10:26:02 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.

      PubDate: Fri, 13 May 2011 10:26:02 GMT
       
  • Volume 17 International Law on Peacekeeping: A Study of Article 40 of the
           UN Charter [Book Review]
    • Abstract: Lee, Annabel; Saul, Ben
      PubDate: Fri, 13 May 2011 10:26:02 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.

      PubDate: Fri, 13 May 2011 10:26:02 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.

      PubDate: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 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: Fri, 13 May 2011 10:26:02 GMT
       
  • Volume 16 The Tokyo International Military Tribunal: A Reappraisal [Book
           Review]
    • Abstract: Hart, Naomi; Saul, Ben
      PubDate: Tue, 1 Feb 2011 11:14:12 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: Tue, 1 Feb 2011 11:14:12 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: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 'Zhang v Zemin' (2008) 251 ALR 707
    • Abstract: Wardle, Phillip
      The trial proceedings and decision of the NSW Supreme Court on a civil case 'Zhang v. Zemin' (2008) 251 ALR 707 to hear charges of torture and other human rights abuses raised by a member of the Falun Gong movement against officials in the People's Republic of China such as former Chinese President Jiang Zemin is discussed. The Court ruled that all the defendants are entitled to complete immunity from the civil jurisdiction of Australian courts as per s 40 of the 'Foreign States Immunities Act 1985' (FISA), and hence cannot be tried extra-territorially as an exception in a civil claim in Australia.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 Gherebi v Obama 609 F Supp 2d 43 (2009)
    • Abstract: Smith, Amelia
      Details of the Court judgement given in the 'Gherebi v. Obama' 609 F Supp 2d 43 (2009) case on the legality of he detention of terrorist suspects and the scope of the authorisation of the American President in the matter as per the 'Authorisation for Use of Military Force Against Terrorists' (AUMF) bill are presented. It is stated that the Court relied on certain international humanitarian laws such as the 'Third Geneva Convention' and 'Fourth Geneva Convention' and not others, thereby leaving the questions unresolved.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 Prosecutor v Boskoski: (ICTY, Trial Chamber, Case No IT-04-82-T,
           10 July 2008)
    • Abstract: Poisel, Timothy J
      The judgement given by Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia (ICTY) on July 10, 2008, in the case of 'Prosecutor v. Ljube Boskoski and Johan Tarculovski' (ICTY, Trial Chamber, Case No. IT-04-82-T, 10 July 2008) is discussed. The proceedings applied the 'Tadic' threshold test to examine the presence of an 'internal armed conflict' and the Chamber ruled that Ljube Boskoski, the Minister of Interior of FYROM (Yugoslav Republic of Macedonia), whose police and armed forces allegedly attacked and murdered unarmed ethnic Albanians, was not criminally responsible for the act.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 Prosecutor v Karadzic (ICTY, Case No IT-95-5/18): The
           Indictment, English Language and Holbrooke Agreement Decisions
    • Abstract: Ventura, Manuel
      The decisions handed down by the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber in the final pre-trial Indictment of Radovan Karadzic, the highest military and political authority of the Bosnian Serbs during the 1992-95 Bosnian conflicts, in the 'Prosecutor v. Karadzic' (ICTY, Case No. IT-95-5/18) case, are discussed. The Appeals Chamber has decided on two specific appeals that Radovan is adequately proficient in the English language to be provided with documents in the language, and that the alleged secret Holbrooke Agreement between him and United States diplomat Richard Holbrooke is not worthy of perusal as immunity is not desirable for those involved in war crimes.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 The Permanent Court of Arbitration and the Sudanese Peace
           Process: Legal Issues from the 'Abyei' Arbitration in Reviewing the
           Mandate of an Ad Hoc Body
    • Abstract: McKay, Jennifer
      The legal functions of the 2008 'Abyei Arbitration' Tribunal in reviewing the mandate of the Abyei Boundaries Commission (ABC) and ABC Experts, two ad hoc bodies formed in 2005 to decide on Abyei land boundary demarcations following a referral to the Permanent Court of Arbitration (PCA) during the Sudan Peace Process, are discussed. The Tribunal ruled that ABC Experts exceeded its mandate in drawing boundary lines for the Abyei region without providing adequate reasons or documentation for the process.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 The Charter of Rights Debate: A Battle of the Models
    • Abstract: Kolodizner, Irina
      Since the Hon Robert McClelland launched the National Human Rights Consultation on 10 December 2008, policy and legislative circles have been abuzz with talk of shoring up Australia's commitment to the protection of human rights and the potential enactment of a Charter of Rights. This article seeks to contribute to the debate by comparing the two dominant models of statutory Charter mechanism that have been on the policy table: the dialogue model, which parallels statutory models adopted in the UK as well as domestically in Victoria and the ACT; and the model based on the Canadian Bill of Rights, proffered by the Hon Michael McHugh AC QC. Ultimately, utilising the issue of asylum seekers as a case in point, it is concluded that while the dialogue model carries greater conceptual weight, the model proffered by the Hon Michael McHugh is a more practical model of redress for individual human rights grievances.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 At the Fault-lines of Armed Conflict: The 2006 Israel-Hezbollah
           Conflict and the Framework of International Humanitarian Law
    • Abstract: Yuile, Andrew
      The laws of armed conflict, or international humanitarian law (IHL), divide armed conflict into two categories, international and non-international, with far fewer rules applicable to the latter. The conflicts of today, however, increasingly blur the lines between the two, often involving non-State parties with military capabilities on a par with States, and wreaking the same destruction as conflicts between States. One such example was the conflict in 2006 between Israel and Hezbollah. This article examines whether the conflict in Lebanon was international or non-international, and asks which laws applied to that conflict. The article argues that the 2006 conflict was non-international, and concludes that only the bare minimum treaty protection, as well as relevant customary laws, applied. In doing so, the article explores the legal problems created by modern conflicts with powerful non-State actors like Hezbollah. It argues for an expansion in the application of the laws applicable to international armed conflict in order to fill the lacuna, and calls for an independent international body to make determinations on the classification of conflicts until the gap between the rules of international and non-international armed conflict can be closed.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 Targeting the 'Terrorist Enemy': The Boundaries of an Armed
           Conflict Against Transnational Terrorists
    • Abstract: Thynne, Kelisiana
      Following the terrorist attacks of 11 September 2001, the US declared Al-Qaeda and its associates as 'the terrorist enemy'. Under the previous and current Administrations, the US's security strategies have focused on combating this 'terrorist enemy' in various ways including the so-called 'war on terror' or 'war with Al-Qaeda': an armed conflict against transnational terrorists to which international humanitarian law ('IHL') supposedly applies. This article considers the notion of targeting transnational terrorists under IHL. The article addresses the issue of whether an armed conflict against terrorists exists and what sort of armed conflict it may be. It then examines whether terrorists are legitimate targets in and outside an armed conflict, drawing on the recent 'Interpretive Guidance on Direct Participation in Hostilities' by the International Committee of the Red Cross. The article concludes that terrorist attacks in general do not give rise to armed conflict; that there is no legitimate war against transnational terrorists; and, therefore, that military targeting of such transnational terrorists can only occur in limited circumstances.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 Responding to Attacks by Non-state Actors: The Attribution
           Requirement of Self-defence
    • Abstract: Michael, Brent
      There is controversy about whether and in what circumstances a State may act in self-defence in response to armed attacks carried out by non-State actors. Through an examination of State practice and ICJ decisions, this article examines the requirement that an armed attack must be attributable to the State against which self-defence is exercised. The author argues that there is confusion in the way in which the topic has been dealt with, and seeks to clarify some important conceptual issues. Ultimately, it is argued that the previously accepted 'effective control' attribution threshold permitting self-defence has been altered by the military response in the wake of the 11 September 2001 terrorist attacks, to a test of 'sanctuary and support'.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 Intervening Interests: Humanitarian and Pro-democratic
           Intervention in the Asia-Pacific
    • Abstract: Lancaster, Robert
      Whilst the Asia-Pacific has been the arena of two significant military operations since 1999, the academic discussion surrounding humanitarian and pro-democratic intervention has tended to focus on the paradigm cases in Africa and Europe. Focusing particularly on the concept of the Responsibility to Protect ('R2P'), as well as the criteria elaborated by the International Commission on Intervention and State Sovereignty (ICISS), this article seeks to illuminate the debate in the Asia-Pacific regional context. Concentrating on the interventions in East Timor and Solomon Islands, it examines the Howard Government's approach to legal and procedural questions of intervention, with a view to determining the impact on the evolving normative framework for intervention. Specifically, it will highlight the way in which consent has emerged as a fundamental prerequisite to intervention, a requirement that can easily come to undermine effective international responses and foment prevarication as humanitarian disasters unfold. The Rudd Government appears more committed to the emerging R2P doctrine, but the question remains whether the international community is committed to the full practical implications of the R2P - under what circumstances it will, in practice, be willing to respond militarily to a humanitarian crisis without the consent of the State concerned.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 Wearing his Jacket: A Feminist Analysis of the Serious Crimes
           Process in Timor-Leste
    • Abstract: Rimmer, Susan Harris
      This article aims to examine the gender jurisprudence of the serious crimes process in Timor-Leste. It focuses on whether the cases arising from the process delivered 'justice' for women and did justice to the experience of women in armed conflict. The article asks what 'justice judgments' the Timorese community have made about the trials; that is, whether the Special Panel's processes were accepted and understood in the general population. This examination sheds some light on the benefits, if any, that the existing framework of international law has provided for women engaged with transitional justice processes. This is judged by reference to the participation of women in the system and to any new international criminal jurisprudence, as well as by whether the process fairly represented the experience of women during the occupation and whether it added any material benefit to their lives in the independence period.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
  • Volume 16 The Australian Trials of Class B and C Japanese War Crime
           Suspects, 1945-51
    • Abstract: Okada, Emmi
      This article examines the legal issues arising from the Australian trials of Class B and C Japanese war crime suspects that took place between 1945 and 1951, with a view to discerning the various considerations at play in the question of 'victors' justice'. It begins by canvassing the background of the Australian trials, and then turns to consider the procedural and substantive legal issues that surfaced. It is shown that, in many respects, the Australian trials did not meet the international standards of justice that we have become accustomed to today - mainly due to the inadequacies of the war crimes legislation in place at the time. Nevertheless, it is concluded that the 'victors' justice' question unhelpfully frames these inadequacies as ones motivated by revenge, which does not accord with the conduct, for the most part, of the officers of the military tribunal, and the manner in which they interpreted and applied the war crimes legislation and legal precedent. Instead, this article argues in favour of a more beneficial approach to drawing upon the experiences of the Australian trials, one that goes beyond the confines of the assumptions inherent in the question of 'victors' justice'.

      PubDate: Tue, 1 Feb 2011 11:14:12 GMT
       
 
 
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