Shifting global power and shifting state power

The adoption of the Declaration on the Rights of Indigenous Peoples (DRIP) by the United Nations General Assembly in September 2007 has been heralded by many as a major breakthrough in the promotion of Indigenous rights under international law. Many however are sceptical as to whether DRIP actually promotes Indigenous rights or rather limits them in ways that serve the interests of nation states thereby diminishing the universality of human rights with respect to Indigenous peoples. This paper will examine how shifts in global power from the United States to the BRIC nations (Brazil, Russia, India and China) are likely to impact on the realisation of the right of self determination for Indigenous peoples. It will start by outlining the right of self determination as articulated in the Declaration, and in particular how the United States and its allies - the CANZUS group (Canada, Australia, New Zealand and United States) - were influential in shaping its form and content. The paper will then assess the extent to which the right to self determination is realised in Australia, the United States and the BRJC nations to provide an indication of the likely future direction of recognition and realisation of Indigenous rights at a global level.

Flag state responsibility for maritime terrorism

Modern international shipping is largely a flag state-based system. Only the flag state has complete authority over the vessels that fly its flag, and as a result, other states’ jurisdiction over these vessels is very limited. Against this backdrop, this article examines the flag state’s responsibility for maritime terrorism, a major security issue and vulnerability in the global supply chain. It is not an exaggeration that the global community’s repeated statements regarding the illegality of terrorism have created a customary international law obligation for states to take all possible steps for the prevention of terrorism. This article argues that providing flags to suspicious entities in an obscure registration system is not compatible with this obligation.

State responsibility for maritime terrorism

Maritime terrorism is one of the main maritime security issues in the contemporary world. The threat of maritime terrorism is more apparent than ever in the post-September 11 era. Although maritime terrorism is an old issue, the disastrous events of 11 September 2001 brought this issue again onto the global agenda. This incident brought to the forefront the longstanding concerns that terrorists could severely disrupt the global maritime supply chain by using shipping containers or vessels to attack major business centres, port facilities and offshore installations. A number of international criminal law studies have been conducted to identify international legal challenges in maritime security. Some of these works have critically examined the international legal framework for maritime security and identified the lacunas in the existing system. Some of these writings have also identified that emerging maritime terrorism issues are prompting States to introduce some stringent measures. Although the international legal regime related to maritime terrorism is a well-researched area, very little research work has explored the legal issues related to State responsibility for maritime terrorism. This article argues that, although the United Nations Convention on the Law of the Sea (UNCLOS) provisions related to maritime piracy may not be applicable for some dimensions of maritime violence, different provisions of UNCLOS may relevant in identifying State responsibility for maritime terrorism.

Climate change and IMO technical and operational measures for reduction of emissions of greenhouse gas from ships

According to a study conducted by the International Maritime organisation (IMO) shipping sector is responsible for 3.3% of the global Greenhouse Gas (GHG) emissions. The 1997 Kyoto Protocol calls upon states to pursue limitation or reduction of emissions of GHG from marine bunker fuels working through the IMO. In 2011, 14 years after the adoption of the Kyoto Protocol, the Marine Environment Protection Committee (MEPC) of the IMO has adopted mandatory energy efficiency measures for international shipping which can be treated as the first ever mandatory global GHG reduction instrument for an international industry. The MEPC approved an amendment of Annex VI of the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) to introduce a mandatory Energy Efficiency Design Index (EEDI) for new ships and the Ship Energy Efficiency Management Plan (SEEMP) for all ships. Considering the growth projections of human population and world trade the technical and operational measures may not be able to reduce the amount of GHG emissions from international shipping in a satisfactory level. Therefore, the IMO is considering to introduce market-based mechanisms that may serve two purposes including providing a fiscal incentive for the maritime industry to invest in more energy efficient manner and off-setting of growing ship emissions. Some leading developing countries already voiced their serious reservations on the newly adopted IMO regulations stating that by imposing the same obligation on all countries, irrespective of their economic status, this amendment has rejected the Principle of Common but Differentiated Responsibility (the CBDR Principle), which has always been the cornerstone of international climate change law discourses. They also claimed that negotiation for a market based mechanism should not be continued without a clear commitment from the developed counters for promotion of technical co-operation and transfer of technology relating to the improvement of energy efficiency of ships. Against this backdrop, this article explores the challenges for the developing counters in the implementation of already adopted technical and operational measures.

IMO technical and operational measures for reduction of emissions of greenhouse gas from ships : perspectives of Asian countries

International shipping is responsible for about 2.7% of the global emissions of CO2. In the absence of proper action, emissions from the maritime sector may grow by 150% to 250% by 2050, in comparison with the level of emissions in 2007. Against this backdrop, the International Maritime Organisation has introduced a mandatory Energy Efficiency Design Index (EEDI) for new ships and the Ship Energy Efficiency Management Plan (SEEMP) for all ships. Some Asian countries have voiced serious reservations about the newly adopted IMO regulations. They have suggested that imposing the same obligations on all countries, irrespective of their economic status, is a serious departure from the Principle of Common but Differentiated Responsibility, which has always been the cornerstone of international climate change law discourse. Against this backdrop, this article presents a brief overview of the technical and operational measures from the perspective of Asian countries.

Designing REDD+ to be just : considerations for a legally binding instrument

The international climate regime is in the process of negotiating a legally binding instrument concerning Reducing Emissions from Deforestation and Degradation (REDD+). The paper starts by exploring the complex web of decisions and advices that currently regulate REDD+ initiatives within the international climate regime. This is followed by an analysis of justice issues raised by non-state actors in the REDD+ international negotiations. The paper concludes by building on this analysis to identify some relevant considerations when seeking to design a just and legally binding REDD+ instrument. These considerations include: the impact of market- versus fund-based investment channels, the importance of defining a clear objective; the inclusion and role of international principles such as sovereignty, preventative action, common but differentiated responsibility, sustainable development, and Free, Prior, and Informed Consent; the appropriate design of REDD+ safeguards and the inclusion of grievance mechanisms within the instrument which provide guidance on resolving disputes associated with REDD+ investment.

Shifting Powers : Protection of Refugees and Displaced Persons in the Asia Pacific Region

The United Nations High Commissioner for Refugees' (UNHCR) 2011 statistics on refugee populations residing by region are a stark reminder of the challenge facing states and civil society in the Asia Pacific. In 2011, Africa hosted 2,149,000 refugees; the Americas, Europe, and Middle East and North Africa hosted 513 ,500, 1,605,500 and 1,889,900 respectively, while the Asia Pacific hosted a staggering 3,793,900. The fact that 35 per cent of the world's refugees reside in the Asia Pacific, coupled with the fact that 84 per cent of refugees displaced in Asia remain in the region,raises the questions why so few countries in the region are signatories to the Convention relating to the Status of Refugees ('Refugee Convention') or cognate rights instruments and why no formally binding regional agreement exists for the equitable sharing of responsibilities for refugees...

The role of common but differentiated responsibility in the 2020 climate regime

The principle of common but differentiated responsibility (CBDR) will play a role in the 2020 Climate Regime. This Article starts by examining differential treatment within the international legal order, finding that it is ethically and practically difficult to implement an international climate instrument based on formal equality. There is evidence of state parties accepting differential responsibilities in a number of areas within the international legal order and the embedding of CBDR in the United Nations Framework Convention on Climate Change (UNFCCC), means that that differential commitments will lie at the heart of the 2020 climate regime. The UNFCCC applies the implementation method of differentiation, while the Kyoto Protocol applies both the obligation and implementation method of differentiation. It is suggested that the implementation model will be the differentiation model retained in the 2020 climate agreement. The Parties’ submissions under the Durban Platform are considered in order to gain an understanding of their positions on CBDR. While there are areas of contention including the role of principles in shaping obligations and the ongoing legal status of Annex I and Non-Annex I distinction, there is broad consensus among the parties in favour of differentiation by implementation with developed and major economies undertaking Quantified Emission Limitation and Reduction Objectives (economy wide targets) and developing countries that are not major economies undertaking sectoral targets.

Mandatory sentencing : a criminological perspective

This paper will give a ‘criminological perspective’ on mandatory sentencing. It will however largely avoid the issues of the effect of mandatory sentencing provisions on the judicial process and judicial independence, as this has already been covered by Sir Anthony Mason. It will also avoid the legal issues concerning the constitutional, human rights and international law aspects of mandatory sentencing which will be covered by later speakers. The aim will be to give a brief overview of research which evaluates the effects of mandatory sentencing provisions in terms of the available evidence of whether they meet their stated aims of deterrence, selective incapacitation and the reduction of crime rates. This will be done in two parts, first in relation to the more extensive experiment in mandatory sentencing in the USA which has provided some of the impetus and metaphors ("three strikes") for recent Australian developments; and second the recent mandatory sentencing provisions in Western Australia (WA) and the Northern Territory (NT). Evidence from both the US and WA (NT is hard to assess because of the lack of proper monitoring and criminal statistics) indicates that mandatory sentencing does not produce the effects of deterrence, selective incapacitation and crime reduction which are its stated justifications and does produce a range of damaging side effects in terms of distortion of the judicial process, wildly disproportionate sentencing, additional financial and social cost and deepening social exclusion of individuals and particular communities. So what is left are the less acknowledged underpinnings of mandatory sentencing in the form of the symbolic politics of law and order, the politics of social exclusion and a displacement of racial anxieties and hostilities onto the terrain of the legal. In fashioning this necessarily brief overview a number of sources have been heavily drawn upon, in particular the excellent work by Neil Morgan from UWA (Morgan, 1995;1999; 2000); Dianne Johnson and George Zdenkowski in their detailed report to the Senate Inquiry (2000); and a number of articles appearing in 1999 in an excellent special issue of the UNSW Law Journal, all of which are highly recommended for further reading.

Responsibility to protect and women, peace and security : aligning the protection agendas

In Responsibility to Protect and Women, Peace and Security: Aligning the Protection Agendas, editors Davies, Nwokora, Stamnes and Teitt address the intersections of the Responsibility to Protect (R2P) principle and the Women, Peace, and Security (WPS) agenda. Widespread or systematic sexual or gender-based violence is a war crime, a crime against humanity and an act of genocide, all of which are clearly addressed in the R2P principle. The protection of those at risk of widespread sexual violence is therefore not only relative to the Women, Peace and Security (WPS) agenda, but a fundamental sovereign obligation for all states as part of their commitment to R2P. Contributions from policy-makers and academics consider both the merits and the utility of aligning the protection agendas of R2P and WPS. Ultimately, a number of actionable recommendations are made concerning a unification of the agendas to best support the global empowerment of women and prevention of mass atrocities.

Protecting the Displaced : Deepening the Responsibility to Protect

This edited collection has sought contributions from some of the foremost scholars of refugee and Internally Displaced Persons (IDP) studies to engage with the conceptual and practical difficulties entailed in realising how the Responsibility to Protect (R2P) can be fulfilled by states and the international community to protect vulnerable persons. Contributors to this book were given one theme: to consider, based on their experience and knowledge, how R2P may be aligned with the protection of the displaced. Contributions explore the history and progress so far in aligning R2P with refugee and IDP protection, as well as examining the conceptual and practical issues that arise when attempting to expand R2P from words into deeds.