Legal ethics in a post-Westphalian world : building the international rule of law and otehr tasks

The emergence of strong sovereign states after the Treaty of Westphalia turned two of the most cosmopolitan professions (law and arms) into two of the least cosmopolitan. Sovereign states determined the content of the law within their borders – including which, if any, ecclesiastical law was to be applied; what form of economic regulation was adopted; and what, if any, international law applied. Similarly, states sought to ensure that all military force was at their disposal in national armies. The erosion of sovereignty in a post-Westphalian world may significantly reverse these processes. The erosion of sovereignty is likely to have profound consequences for the legal profession and the ethics of how, and for what ends, it is practised. Lawyers have played a major role in the civilization of sovereign states through the articulation and institutionalisation of key governance values – starting with the rule of law. An increasingly global profession must take on similar tasks. The same could be said of the military. This essay will review the concept of an international rule of law and its relationship to domestic conceptions and outline the task of building the international rule of law and the role that lawyers can and should play in it.

Managing Wetlands Sustainably as Ecosystems: The Contribution of the Law (Part 2)

In this Part 2 attention is turned towards the legal arrangements in nation states for managing wetlands. These national arrangements have effect within the international arrangements already mentioned and any regional arrangements that are relevant. However, each national system is a reflection of its own historical, cultural, political and constitutional background. It is the purpose of this Part 2 to review and assess the national approaches to wetlands management. This involves an analysis of a range of instruments. These are: constitutional rules; strategic rules; regulatory rules; and management rules. Each of these sets of rules performs different functions, assumes different forms and is differentially capable of enforcement.

Professions without borders : global ethics and the international rule of law

The emergence of strong sovereign states after the Treaty of Westphalia turned two of the most cosmopolitan professions (law and arms) into two of the least cosmopolitan. Sovereign states determined the content of the law within their borders – including which, if any, ecclesiastical law was to be applied; what form of economic regulation was adopted; and what, if any, international law applied. Similarly, states sought to ensure that all military force was at their disposal in national armies. The erosion of sovereignty in a post-Westphalian world may significantly reverse these processes. The erosion of sovereignty is likely to have profound consequences for the legal profession and the ethics of how, and for what ends, it is practised. Lawyers have played a major role in the civilization of sovereign states through the articulation and institutionalisation of key governance values – starting with the rule of law. An increasingly global profession must take on similar tasks. The same could be said of the military. This essay will review the concept of an international rule of law and its relationship to domestic conceptions and outline the task of building the international rule of law and the role that lawyers can and should play in it.

Parliament, political ethics and national integrity systems

Papers on Parliament No. 55 February 2011 Charles Sampford "Parliament, Political Ethics and National Integrity Systems*" Prev | Contents |

From national integrity systems to global integrity systems

The primary focus of corruption studies and anti-corruption activism has been corruption within sovereign states. However, over the last twenty years ‘globalization’, the flow of money, goods, people and ideas across borders, has threatened to overwhelm the system of sovereign states. Much activity has moved outside the control of nation states at the same time as nation states have ‘deregulated’ and in so doing have transferred power from those exercising governmental power at the nominal behest of the majority of its citizens to those with greater wealth and/or greater knowledge in markets in which knowledge is typically asymmetric. It is now recognized that many governance problems have arisen because of globalisation and can only be addressed by global solutions. It must also be recognized that governance problems at the national level contribute to governance problems and the global level and vice versa. Nevertheless, many of the lessons learned in combating corruption at the national level are relevant to a globalized world – in particular, the need for ethics and leadership in addition to legal and institutional reform; the need to integrate these measures into integrity systems; and the awareness of corruption systems. These are applied to areas of concern within sustainable globalisation raised by the conference – including peace and security, extractive industries, climate change and sustainable banking.

An assessment of Georgia's National Integrity System : the GNISA project

Georgia’s ‘National Integrity Systems’ are the institutions, laws, procedures, practices and attitudes that encourage and support integrity in the exercise of power in modern Georgian society. Integrity systems function to ensure that power is exercised in a manner that is true to the values, purposes and duties for which that power is entrusted to, or held by, institutions and individual office-holders. This report presents the results of the Open Society Institute / Open Society – Georgia Foundation funded project Georgian National Integrity Systems Assessment (GNISA), conducted in 2005–2006 by Caucasus Institute for Peace, Democracy and Development, Transparency International Georgia, Georgian Young Lawyers Association, in close cooperation with Griffith University Institute for Ethics, Governance and Law (Australia), and Tiri Group (UK), into how different elements of integrity systems interact, which combinations of institutions and reforms make for a strong integrity system, and how Georgia’s integrity systems should evolve to ensure coherence, not chaos in the way public integrity is maintained. Nevertheless all participants of the research may not share some conclusions given in the GNISA report.

From Greek temple to bird's nest : mapping, assessing and understanding national integrity systems

In this paper, I would like to outline the approach we have taken to mapping and assessing integrity systems and how this has led us to see integrity systems in a new light. Indeed, it has led us to a new visual metaphor for integrity systems – a bird’s nest rather than a Greek temple. This was the result of a pair of major research projects completed in partnership with Transparency International (TI). One worked on refining and extending the measurement of corruption. This, the second, looked at what was then the emerging institutional means for reducing corruption – ‘national integrity systems’

Drug law enforcement : a review of the evaluation literature

This article describes the results of a systematic review of drug law enforcement evaluations. The authors describe the search procedures and document the results in five main categories: international/national interventions (e.g., interdiction and drug seizure), reactive/ directed interventions (e.g., crackdowns, raids, buy-busts, saturation patrol, etc.), proactive/ partnership interventions (e.g., third-party policing, problem-oriented policing, community policing, drug nuisance abatement, etc.), individualized interventions (e.g., arrest referral and diversion), or interventions that used a combination of reactive/directed and proactive/ partnership strategies. Results indicate that proactive interventions involving partnerships between the police and third parties and/or community entities appear to be more effective at reducing both drug and nondrug problems in drug problem places than are reactive/ directed approaches. But the general quality of research in drug law enforcement is poor, the range of interventions that have been evaluated is limited, and more high-quality research is needed across a greater variety of drug interventions.

Is there a physicality requirement at Common Law? : a survey of the Pre-NRDC cases discussing ‘Manufacture’

One of the fundamental issues that remains unresolved in patent law today, both in Australia and in other jurisdictions, is whether an invention must produce a physical effect or cause a physical transformation of matter to be patentable, or whether it is sufficient that an invention involves a specific practical application of an idea or principle to achieve a useful result. In short, the question is whether Australian patent law contains a physicality requirement. Despite being recently considered by the Federal Court, this is arguably an issue that has yet to be satisfactorily resolved in Australia. In its 2006 decision in Grant v Commissioner of Patents, the Full Court of the Federal Court of Australia found that the patentable subject matter standard is rooted in the physical, when it held that an invention must involve a physical effect or transformation to be patent eligible. That decision, however, has been the subject of scrutiny in the academic literature. This article seeks to add to the existing literature written in response to the Grant decision by examining in detail the key common law cases decided prior to the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, which is the undisputed authoritative statement of principle in regards to the patentable subject matter standard in Australia. This article, in conjunction with others written by the author, questions the Federal Court’s assertion in Grant that the physicality requirement it established is consistent with existing law.

The borders that law sets on entertainment

It is natural for those involved in entertainment to focus on the art. However, like any activity in even a free society, those involved in entertainment industries must operate within borders set by the law. This article examines the main areas of law that impact entertainment in an Australian context. It contrasts the position in relation to freedom of expression in Australia with that in the United States, which also promotes freedom of expression in a free society. It then briefly canvases the main limits on entertainment productions under Australian law.

International law and the regulation of violence : shifting perceptions of the legitimacy of the jus ad bellum?

International law’s capacity to influence state behaviour by regulating recourse to violence has been a longstanding source of debate among international lawyers and political scientists. On the one hand, sceptics assert that frequent violations of the prohibition on the use of force have rendered article 2(4) of the UN Charter redundant. They contend that national self-interest, rather than international law, is the key determinant of state behaviour regarding the use of force. On the other hand, defenders of article 2(4) argue first, that most states comply with the Charter framework, and second, that state rhetoric continues to acknowledge the existence of the jus ad bellum. In particular, the fact that violators go to considerable lengths to offer legal or factual justifications for their conduct – typically by relying on the right of self-defence – is advanced as evidence that the prohibition on the use of force retains legitimacy in the eyes of states. This paper identifies two potentially significant features of state practice since 2006 which may signal a shift in states’ perceptions of the normative authority of article 2(4). The first aspect is the recent failure by several states to offer explicit legal justifications for their use or force, or to report action taken in self-defence to the Security Council in accordance with Article 51. Four incidents linked to the global “war on terror” are examined here: Israeli airstrikes in Syria in 2007 and in Sudan in 2009, Turkey’s 2006-2008 incursions into northern Iraq, and Ethiopia’s 2006 intervention in Somalia. The second, more troubling feature is the international community’s apparent lack of concern over the legality of these incidents. Each use of force is difficult to reconcile with the strict requirements of the jus ad bellum; yet none attracted genuine legal scrutiny or debate among other states. While it is too early to conclude that these relatively minor incidents presage long term shifts in state practice, viewed together the two developments identified here suggest a possible downgrading of the role of international law in discussions over the use of force, at least in conflicts linked to the “war on terror”. This, in turn, may represent a declining perception of the normative authority of the jus ad bellum, and a concomitant admission of the limits of international law in regulating violence.

The future of the internet economy : addressing challenges facing the implementation of the Australian national broadband network

Innovation is vital for the future of Australia.s internet economy. Innovations rely on businesses. ability to innovate. Businesses. ability to innovate relies on their employees. The more these individual end users engage in the internet economy, the better businesses. engagement will be. The less these individual end users engage, the less likely a business is to engage and innovate. This means, for the internet economy to function at its fullest potential, it is essential that individual Australians have the capacity to engage with it and participate in it. The Australian federal government is working to facilitate the internet economy through policies, legislation and practices that implement high-speed broadband. The National Broadband Network will be a vital tool for Australia.s internet economy. Its .chief importance¡® is that it will provide faster internet access speeds that will facilitate access to internet services and content. However, an appropriate infrastructure and internet speed is only part of the picture. As the Organisation for Economic Co-operation and Development identified, appropriate government policies are also needed to ensure that vital services are more accessible by consumers. The thesis identifies essential theories and principles underpinning the internet economy and from which the concept of connectedness is developed. Connectedness is defined as the ability of end users to connect with internet content and services, other individuals and organisations, and government. That is, their ability to operate in the internet economy. The NBN will be vital in ensuring connectedness into the future. What is not currently addressed by existing access regimes is how to facilitate end user access capacity and participation. The thesis concludes by making recommendations to the federal government as to what the governing principles of the Australian internet economy should include in order to enable individual end user access capacity.

The role of property law in environmental management

Market-based environmental regulation is becoming increasingly common within international and national frameworks. In order for market-based regimes to attract sufficient levels of stakeholder engagement, participants within such schemes require an incentive to participate and furthermore need to feel a sense of security about investing in such processes. A sense of security is associated with property-based interests. This article explores the property-related issues connected with the operation of environmental markets. Relevant property-related considerations include examining the significant role that market-based regulation is playing in connection with the environment; examining the links between property rights and markets; exploring the legal definition of property; analysing the rights and powers associated with environmental interests in land; advancing theory on the need for landholder responsibilities in relation to land and examining the legal mechanisms used to recognise environmental property rights, including the registration thereof.