Commentary on papers by Professor Fletcher and Mr Martin

In light of the time available today, I will limit my comments to addressing that aspect of Professor Fletcher’s paper in which he refers to the 2012 report he co-authored with Professor Wessels of the Netherlands for the American Law Institute (ALI) and the International Insolvency Institute (III) on Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases. I will comment on the potential benefits for Australian courts as well as insolvency administrators and their advisers in referring to the ALI-III Report - in light of Australia’s adoption of the UNCITRAL Model Law. In so doing, I would like to acknowledge the support of the Australian Academy of Law, under the leadership of The Hon Dr Kevin Lindgren for the research project underpinning these comments, as well as to acknowledge the contributions of my colleagues Associate Professor Sheryl Jackson and Mark Wellard.

Genetic technologies and the regulation of reproductive decision-making in Australia

This article provides a critical analysis of the current Australian regulatory landscape at the interface between genetics and reproductive decision- making. The authors argue that a comparative analysis with other countries and international law and a contextual examination of the way law regulates concepts such as disease and health, abnormality and normality is necessary before we can develop appropriate policy and legislative responses in this area. Specific genetic testing technologies are considered including prenatal genetic testing, preimplantation genetic diagnosis and inheritable genetic modification. An increasing number of members of the Australian community are using genetic testing technologies when they decide to have a baby. The authors argue that as concepts of disease and health vary among members of the community and the potential to test for traits other than illness increases, a new tension arises between an ethic of individual choice and a role for government in regulating reproductive decision-making.

Duty in the time of epidemics : what China and Zimbabwe teach us

In November 2002, a man with ‘atypical pneumonia’ treated in Foshan hospital, Guangdong Province, in the People's Republic of China, was the first known case of Severe Acute Respiratory Syndrome (SARS). However, it was not until April 2003 that the Chinese government admitted to the full scale of ‘atypical pneumonia’ cases infected with SARS, two months after the disease had rapidly spread across the world with initial infections in Hong Kong and Vietnam sourced to Guangdong. In 2008, Zimbabwe experienced one of the biggest outbreaks of cholera ever recorded. By February 2009, the disease had spread across all of Zimbabwe's 10 provinces and to neighbouring countries—Botswana, South Africa, Zambia and Mozambique—causing thousands of infections amongst their populations. This article seeks to examine what duties the Chinese and Zimbabwe states had to protect their citizens and the international community from these outbreaks. The article refers to the findings of the International Law Commission's study into the role of states and international organisations in protecting persons in the event of a disaster to consider whether there is an international duty to protect persons from epidemics. The article concludes that both cases reveal a growing concept of protection that entails an international duty to assist individuals when an affected state proves unwilling or unable to assist its own population in the event of a disease outbreak.

Natural disasters and the responsibility to protect

The International Law Commission (ILC) study on the protection of persons in the event of disasters has been ongoing since 2006. During this period, there has been continuous debate in the literature and in consultations with States as to whether the study should explore the Responsibility to Protect (R2P) persons in the event of natural disasters. In this article, the rationale for this continuing argument is explored considering that the ILC has repeatedly stated since 2008 that the study’s topic – assistance in the event of natural disasters – has no legal relationship with the R2P principle. In the final section it is proposed that the real knowledge gap in the ILC discussion and study is the positive affirmation of the rights of those most affected by natural disasters – women.

Introduction

"The Responsibility to Protect (R2P) is a major new international principle, adopted unanimously in 2005 by Heads of State and Government. Whilst it is broadly acknowledged that the principle has an important and intimate relationship with international law, especially the law relating to sovereignty, peace and security, human rights and armed conflict, there has yet to be a volume dedicated to this question. The Responsibility to Protect and International Law fills that gap by bringing together leading scholars from North America, Europe and Australia to examine R2P’s legal content. The Responsibility to Protect and International Law focuses on questions relating to R2P’s legal quality, its relationship with sovereignty, and the question of whether the norm establishes legal obligations. It also aims to introduce readers to different legal perspectives, including feminism, and pressing practical questions such as how the law might be used to prevent genocide and mass atrocities, and punish the perpetrators."--publisher website

Conclusion

"The Responsibility to Protect (R2P) is a major new international principle, adopted unanimously in 2005 by Heads of State and Government. Whilst it is broadly acknowledged that the principle has an important and intimate relationship with international law, especially the law relating to sovereignty, peace and security, human rights and armed conflict, there has yet to be a volume dedicated to this question. The Responsibility to Protect and International Law fills that gap by bringing together leading scholars from North America, Europe and Australia to examine R2P’s legal content."--publisher website

In conversation with the Honourable Ian Callinan AC

When, in 1977, the Australian electorate provided a double majority to effect a change of section 72 of the Commonwealth Constitution requiring judges of the High Court of Australia to retire at the age of 70 years old, I doubt we understood the continuing capacity of these esteemed members of the judiciary. For the opportunity to sit and talk with Ian Callinan AC who, in compliance with that amendment, retired from the High Court in September 2007, I needed to wait until he returned from The Hague where he was sitting as a Judge ad hoc on the International Court of Justice. Although a native of Casino, New South Wales, Mr Callinan is regarded as a Queenslander. Indeed, he grew up in Brisbane, finished high school at Brisbane Grammar and graduated in law at The University of Queensland. Appointed in 1978 as a Queen’s Counsel, Mr Callinan enjoyed this period of his legal career and we discussed an aspect of the Christopher Skase case, which reinforced my belief that Mr Callinan is an incredibly skilful advocate. On 14 September 1998, ABC Four Corners broadcasted the views of some prominent Australians on the appointment of Mr Callinan to the High Court. In assessing the type of person Mr Callinan is, Tony Morris QC said: “Ian Callinan isn't a coward”, while former Commonwealth Attorney-General, Michael Lavarch, said: “He was regarded as an absolutely outstanding criminal lawyer within the Queensland legal profession, I mean really a top-notch advocate”. I was not interested in raising any of the controversial issues that Mr Callinan has encountered as an advocate in high profile matters. I wanted to know how he felt about his time on the High Court, what his thoughts are on the operation of the High Court, the IP cases he decided, the real life issues that he feels impact on counsel who are appearing before the High Court and the people he regarded as role models. During our conversation, Mr Callinan laughed often and when he did his eyes lit up, revealing his passion for life. He is an incredibly genuine Australian who loved his time as a barrister, enjoyed his role on the High Court, enjoys his current job as mediator, loves writing novels, has a great desire for continual improvement in the quality of legal education and legal advocacy and sees a need for change in IP law. When I asked: “So, what might the future hold for you?”, he laughed and said: “Well, at my age I don’t have a long horizon time”. I said: “Just enjoy the journey?”, to which Mr Callinan responded: “Exactly”.

Creating an enabling legal framework fro REDD+ investments in Kenya

Reducing Emissions from Deforestation and Forest Degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries (REDD+) has emerged out of the United Nations Framework Convention on Climate Change (UNFCCC)/Kyoto Protocol negotiations. It is intended to be a mechanism to channel funding (from both public and private sources) for reducing emissions from the forest sector. It is an international climate change policy that relies on national implementation. In order to attract and manage REDD+ investments (both public and private), countries need to decide on their approach to REDD+ implementation through a series of policy choices, and then implement those policy choices through strong legal frameworks. An important question for REDD+ host countries to consider, therefore, is how to develop robust legal structures to facilitate REDD+ implementation. These legal frameworks could be based on existing laws, and/or require new law making.

The Marrakesh Treaty could bring the world’s books to the blind

An estimated 285 million people worldwide are visually impaired. Some 90% of those live in developing nations, where less than 1% of the world’s books are available in a form they can read. In developed countries, the situation is only marginally better: only around 7% of the world’s books are accessible to print-disabled people. The right to read is part of our basic human rights. Access to the written word is crucial to allow people to fully participate in society. It’s important for education, political involvement, success in the workplace, scientific progress and, not least, creative play and leisure. Equal access to books and other cultural goods is also required by international law. The technology now exists to deliver books in accessible electronic forms to people much more cheaply than printing and shipping bulky braille copies or books on tape. Electronic books can be read with screen readers and refreshable braille devices, or printed into large print or braille if needed. Now that we have this technology, what’s been referred to as the global “book famine” is a preventable tragedy.

Is Australia ready for biosimilars?

The biosimilars market is potentially the single fastest growing pharmaceutical sector with an estimated worth of US$67bn in global sales by 2020. This market generally refers to larger molecule, biological, protein-based pharmaceuticals which have lost its patent. This has stimulated the emergence of non-conventional pharmaceutical investors such as Fujifilm and Samsung as well as host countries such as Brazil, Mexico, China, India, South Korea, Turkey and Russia, which view biosimilars as a key macroeconomic driver of growth. Internationally, the European Medicines Agency has led the regulation of the quality, safety and efficacy of biosimilars; however, many countries have developed their own biosimilar regulatory frameworks. Despite the similarity of these with European guidelines, differences do exist across jurisdictions and have implications for cross-jurisdictional registration and regulation. The consideration of biosimilar regulation, however, demands attention beyond quality, safety and efficacy. The potential implications of extended patent protection, international trade and globalisation require a congruent policy approach to their regulation. Notwithstanding the fact that Australia is a relatively small pharmaceutical market and that there are only 14 biosimilar products currently approved for use, Australia’s geographical proximity to pharm-emerging countries and its trade relation with the major pharmaceutical markets have positioned Australia in a unique position to influence international development and regulation of biosimilars. Australia’s National Medicines Policy (2000) potentially provides the foundation for a partnership approach to biosimilar regulation, minimise duplication of regulatory efforts while at the same time fostering a viable pharmaceutical industry.

The 1989 Comprehensive Plan of Action (CPA) and refugee policy in Southeast Asia : twenty years forward what has changed?

In 2012, the only South East Asian countries that have ratified the 1951 Convention relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (hereafter referred to as the 1951 Convention and 1967 Protocol) is Philippines (signed 1954), Cambodia (signed 1995) and Timor Leste (signed 2001). Countries such as Indonesia, Malaysia and Thailand have annual asylum seeking populations from Myanmar, South Asia and Middle East, that are estimated to be at 15 000-20 000 per country (UNHCR 2012). The lack of a permanent and formal asylum processing process in these countries means that that asylum-seeking populations in the region are reliant on the local offices of the United Nations High Commission for Refugees based in the region to process their claims. These offices rely upon the good will of these governments to have a presence near detection camps and in capital cities to process claims of those who manage to reach the UNHCR representative office. The only burden sharing mechanism within the region primarily exists under the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (the Bali Process), introduced in 2002. The Bali Process refers to an informal cooperative agreement amongst the states from the Asia-Pacific region, with Australia and Indonesia as the co-chairs, which discusses its namesake: primarily anti-people smuggling activities and migration protocols. There is no provision within this process to discuss the development of national asylum seeking legislation, processes for domestic processing of asylum claims or burden sharing in contrast to other regions such as Africa and South America (i.e. 2009 African Union Convention for the Protection and Assistance of the Internally Displaced, 1969 African Union Convention Governing the Specific Aspects of Refugee Problems in Africa and 1984 Cartagena Declaration on Refugees [Americas]) (PEF 2010: 19).

Security and the War on Terror

The terrorist attacks of 11 September 2001 marked a turning point in international politics, representing a new type of threat that could not easily be anticipated or prevented through state-based structures of security alone. Opening up interdisciplinary conversations between strategic, economic, ethical and legal approaches to global terrorism, this edited book recognises a fundamental issue: while major crises initially tend to reinforce old thinking and behavioural patterns, they also allow societies to challenge and overcome entrenched habits, thereby creating the foundations for a new and perhaps more peaceful future. This volume addresses the issues that are at stake in this dual process of political closure, and therefore rethinks how states can respond to terrorist threats. The contributors range from leading conceptual theorists to policy-oriented analysts, from senior academics to junior researchers. The book explores how terrorism has had a profound impact on how security is being understood and implemented, and uses a range of hitherto neglected sources of insight, such as those between political, economic, legal and ethical factors, to examine the nature and meaning of security in a rapidly changing world.

National security and pandemics

Pandemics are for the most part disease outbreaks that become widespread as a result of the spread of human-to-human infection. Beyond the debilitating, sometimes fatal, consequences for those directly affected, pandemics have a range of negative social, economic and political consequences. These tend to be greater where the pandemic is a novel pathogen, has a high mortality and/or hospitalization rate and is easily spread. According to Lee Jong-wook, former Director-General of the World Health Organization (WHO), pandemics do not respect international borders. Therefore, they have the potential to weaken many societies, political systems and economies simultaneously.

Protect or deter? : the expert panel on asylum seekers in Australia

In June 2012 Prime Minister Gillard appointed an Expert Panel on Asylum Seekers to provide advice on policy options 'to prevent asylum seekers rising their lives on dangerous boat journeys to Australia'. This article examines the establishment of that Committee against the backdrop of an increasing number of boat arrivals, of deaths at sea and the failure of Government policy responses to prevent them. It examines the recommendations of the Expert Panel and considers the punitive outcome of some of these recommendations including the 'no advantage' test. It evaluates Kevin Rudd's Regional Resettlement Arrangement with Papua New Guinea and concludes that Australian and regional initiatives need to focus on protection of asylum seekers, not deterrence or avoidance of international obligations

The BRICS and R2P : contestation, re-interpretation and norm entrepreneurship

The intra-state humanitarian crises in Libya and Syria have led to renewed debate over the content and implementation of pillar three of the responsibility to protect (R2P). This paper examines the BRICS’ (Brazil, Russia, India, China, South Africa) current perspectives on R2P and their recent efforts to shape the concept’s evolution. While Brazil’s “Responsibility while Protecting” (RwP) proposal has been widely discussed, the central focus here is on the lesser-known, semi-official Chinese idea of “Responsible Protection” (RP). Like RwP, RP proposes decision-making criteria and accountability mechanisms for UN-authorised military intervention under R2P’s third pillar. This paper argues that although RP draws heavily on previous R2P proposals such as the original 2001 ICISS report and Brazil’s RwP, by amalgamating and re-packaging these earlier ideas in a more restrictive form the Chinese initiative represents a new and distinctive interpretation of R2P. However, as it currently stands, some aspects of RP appear to be framed too strictly to provide workable guidelines for determining the permissibility of R2P military intervention, and would, therefore, benefit from clarification and refinement. Of broader significance, China’s RP and Brazil’s RwP initiatives point to the growing willingness of rising, non-Western powers to articulate and promote their own normative preferences on sovereignty, intervention and global governance. This development has potential implications both for R2P’s evolution and for the structure of the international system.