Libya and the international community’s 'responsibility to protect'

The Libyan regime’s attacks on its own civilian population are a test case for the international community’s commitment to the notion of a “responsibility to protect” (R2P). The UN Security Council’s statement on 22 February 2011 explicitly invoked this concept by calling on “the Government of Libya to meet its responsibility to protect its population”. Yet, with Muammar Gaddafi encouraging further violence against protesters and threatening to fight “until the last drop of blood” it seems unlikely that the Security Council’s warning will be heeded. Greater pressure from the international community will be needed to bring an end to the atrocities in Libya. The international response to the Libyan crisis represents an opportunity to translate the theory of R2P into practice.

Failed states and the rule of law

The last decade has seen an emerging consensus that the rule of law is critical in both domestic and international affairs. ‘Failed’ states generate important issues for both the rule of law and, importantly, for their intersection or interaction. A ‘failed’ state almost inevitably involves a breakdown of the domestic rule of law. When international intervention occurs, it raises concerns over substantive issues. Among these is the application of international law and international norms, including among other, the conventions and treaties, the responsibility to protect and protection of civilians. Where international missions seek to assist the people of ‘failed’ states in rebuilding their nations, establishing the rule of law is often the primary or initial pursuit. Any such international assistance/intervention is more effective if it is clearly subject to the rule of law and provides an exemplar/demonstration of how power should be exercised

Incorporating international environmental legal principles into future climate change instruments

The article explores the role of international environmental legal principles and their role in future climate change instruments. The five international environmental legal principles explored in this context are: inter and intergenerational equity, the precautionary principle, common but differentiated responsibility, the polluter pays and principle and the principles of responsibility and prevention. Principles are used within regulatory frameworks to guide the interpretation and implementation of the obligations specified within the instrument. It is found that these principles provide a useful basis for the development of international adaptation and mitigation measures that are equitable and ethical in nature. This article argues that these principles must be drafted more strategically into international climate change instruments allowing them to serve as a foundational basis upon which more stringent and equitable binding duties and rights can be derived from. This article makes some recommendations as to the type of obligations that these principles could be used to inform in future climate instruments.

Book review : Olivier Corten, The Law Against War

Olivier Corten’s The Law Against War is a comprehensive, meticulously-researched study of contemporary international law governing the use of armed force in international relations. As a translated and updated version of a 2008 book published in French, it offers valuable insights into the positivist methodology that underpins much of the European scholarship of international law. Corten undertakes a rigorous analysis of state practice from 1945 onwards, with a view to clarifying the current meaning and scope of international law’s prohibition on the use of force. His central argument is that the majority of states remain attached to a strict interpretation of this rule. For Corten, state practice indicates that the doctrines of anticipatory self-defence, pre-emptive force and humanitarian intervention have no basis in contemporary international law. His overall position accords with a traditional, restrictive view of the circumstances in which states are permitted to use force...

The International regulation of persons displaced by climate change

It is certain that there will be changes in environmental conditions across the globe as a result of climate change. Such changes will require the building of biological, human and infrastructure resilience. In some instances the building of such resilience will be insufficient to deal with extreme changes in environmental conditions and legal frameworks will be required to provide recognition and support for people dislocated because of environmental change. Such dislocation may occur internally within the country of original origin or externally into another State’s territory. International and national legal frameworks do not currently recognise or assist people displaced as a result of environmental factors including displacement occurring as a result of climate change. Legal frameworks developed to deal with this issue will need to consider the legal rights of those people displaced and the legal responsibilities of those countries required to respond to such displacement. The objective of this article is to identify the most suitable international institution to host a program addressing climate displacement. There are a number of areas of international law that are relevant to climate displacement, including refugee law, human rights law and international environmental law. These regimes, however, were not designed to protect people relocating as a result of environmental change. As such, while they indirectly may be of relevance to climate displacement, they currently do nothing to directly address this complex issue. In order to determine the most appropriate institution to address and regulate climate displacement, it is imperative to consider issues of governance. This paper seeks to examine this issue and determine whether it is preferable to place climate displacement programs into existing international legal frameworks or whether it is necessary to regulate this area in an entirely new institution specifically designed to deal with the complex and cross-cutting issues surrounding the topic. Commentators in this area have proposed three different regulatory models for addressing climate displacement. These models include: (a) Expand the definition of refugee under the Refugee Convention to encompass persons displaced by climate change; (b) Implement a new stand alone Climate Displacement Convention; and (c) Implement a Climate Displacement Protocol to the UNFCCC. This article will examine each of these proposed models against a number of criteria to determine the model that is most likely to address the needs and requirements of people displaced by climate change. It will also identify the model that is likely to be most politically acceptable and realistic for those countries likely to attract responsibilities by its implementation. In order to assess whether the rights and needs of the people to be displaced are to be met, theories of procedural, distributive and remedial justice will be used to consider the equity of the proposed schemes. In order to consider the most politically palatable and realistic scheme, reference will be made to previous state practice and compliance with existing obligations in the area. It is suggested that the criteria identified by this article should underpin any future climate displacement instrument.

The legal nature of justice in REDD+

Formation of Reduced Emissions from Deforestation and Degradation (REDD+) policy within the international climate regime has raised a number of discussions about ‘justice’. REDD+ aims to provide an incentive for developing countries to preserve or increase the amount of carbon stored in their forested areas. Governance of REDD+ is multi-layered: at the international level, a guiding framework must be determined; at the national level, strong legal frameworks are a pre-requisite to ensure both public and private investor confidence and at the sub-national level, forest-dependent peoples need to agree to participate as stewards of forest carbon project areas. At the international level the overall objective of REDD+ is yet to be determined, with competing mitigation, biological and justice agendas. Existing international law pertaining to the environment (international environmental principles and law, IEL) and human rights (international human rights law, IHRL) should inform the development of international and national REDD+ policy especially in relation to ensuring the environmental integrity of projects and participation and benefit-sharing rights for forest dependent communities. National laws applicable to REDD+ must accommodate the needs of all stakeholders and articulate boundaries which define their interactions, paying particular attention to ensuring that vulnerable groups are protected. This paper i) examines justice theories and IEL and IHRL to inform our understanding of what ‘justice’ means in the context of REDD+, and ii) applies international law to create a reference tool for policy-makers dealing with the complex sub-debates within this emerging climate policy. We achieve this by: 1) Briefly outlining theories of justice (for example – perspectives offered by anthropogenic and ecocentric approaches, and views from ‘green economics’). 2) Commenting on what ‘climate justice’ means in the context of REDD+. 3) Outlining a selection of IEL and IHRL principles and laws to inform our understanding of ‘justice’ in this policy realm (for example – common but differentiated responsibilities, the precautionary principle, sovereignty and prevention drawn from the principles of IEL, the UNFCCC and CBD as relevant conventions of international environmental law; and UNDRIP and the Declaration on the Right to Development as applicable international human rights instruments) 4) Noting how this informs what ‘justice’ is for different REDD+ stakeholders 5) Considering how current law-making (at both the international and national levels) reflects these principles and rules drawn from international law 6) Presenting how international law can inform policy-making by providing a reference tool of applicable international law and how it could be applied to different issues linked to REDD+. As such, this paper will help scholars and policy-makers to understand how international law can assist us to both conceptualise and embody ‘justice’ within frameworks for REDD+ at both the international and national levels.

The Rise of the BASIC Group Within the International Climate Regime : The Challenge of Ensuring Equitable Mitigation Obligations

The chapter examines the current emission reduction obligations within the climate regime. It looks at the formation and rise of the BASIC negotiation group within the international climate COP negotiations and examines the role that BASIC nations are now playing shaping international mitigation policy.

The international regulation of persons displaced by climate change

It is certain that there will be changes in environmental conditions across the globe as a result of climate change. Such changes will require the building of biological, human and infrastructure resilience. In some instances, the building of such resilience will be insufficient to deal with extreme changes in environmental conditions and legal frameworks will be required to provide recognition and support for people relocating as a result of environmental change. International legal frameworks do not currently recognise or assist people displaced as a result of environmental factors. The objective of this chapter is to examine the areas of international law relevant to displacement arising from environmental factors, consider some of the proposed climate displacement instruments and suggest the most suitable international institution to host a program addressing climate displacement. In order to determine the most appropriate institution to address and regulate climate displacement, it is imperative to consider issues of governance. This paper seeks to examine this issue and determine whether it is preferable to place climate displacement programs into existing international legal frameworks, or whether it is necessary to regulate this area in an entirely new institution specifically designed to deal with the complex and cross-cutting issues surrounding the topic...

Litigating law of the sea disputes using the UNCLOS Dispute Settlement System

The interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS) may be the source of many disputes. UNCLOS introduced an à la carte menu for dispute settlement with a number of options for international dispute resolution, including a compulsory procedure entailing binding decisions. While drafting this ambitious and complex system of dispute settlement, the drafters had to negotiate many delicate compromises to secure a system for the uniform interpretation of the Convention. The aim of this paper r is to explore why litigation using the UNCLOS dispute settlement system is, or is not, a preferred mode of settlement for law of the sea disputes.

What further benefit, if any, might Australia get from the ALI-III Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases?

In 2006, the American Law Institute (ALI) and the International Insolvency Institute (III) established a Transnational Insolvency Project and appointed Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (Netherlands) as Joint Reporters. The objective was to investigate whether the essential provisions of the ALI Principles of Cooperation among the NAFTA Countries (ALI-NAFTA Principles) and the annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases (ALI-NAFTA Guidelines) may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. In 2012, Professor Fletcher and Professor Wessels presented the report Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“ALI-III Report”) to the Annual Meetings of the American Law Institute and the International Insolvency Institute. In 2013, the Australian Academy of Law (AAL) provided support to the authors to undertake research on the possible benefits for Australia of courts and insolvency administrators of referring to the ALI-III Report when addressing international insolvency cases. This AAL project was at the request of the Council of Chief Justices of Australia and New Zealand. This research Report compares the Global Principles for Cooperation in International Insolvency Cases with the Cross-border Insolvency Act 2008 and the UNCITRAL Model Law as it has been adopted and has force of law in Australia. Further, it examines the Global Guidelines for Court-to-Court Communications in International Insolvency Cases in light of Australian cross-border insolvency and procedural law. Finally, it makes brief reference to and commentary on the Global Rules on Conflict–of-Laws Matters in International Insolvency Cases annexed to the ALI-III Report from the perspective of Australian choice of law rules.

Trade, travel and disease : the role of law in pandemic preparedness

In 2009 the world experienced an influenza pandemic caused by the H1N1 virus. While the pandemic was milder then expected, it nonetheless provided the world with an opportunity to do real-time testing of pandemic preparedness. This paper examines the threats to human health posed by infectious diseases and the challenges for the global community in development of effective surveillance systems for emerging infectious diseases. In 2005 a new revised version of the International Health Regulations (IHR) was adopted. The requirements of the IHR (2005) are outlined and considered in light of the constraints facing resource-poor countries. Finally, the paper addresses the role of domestic law-making in supporting public health preparedness and articulates a number of ethical principles that should be considered when developing new public health laws.