An analytical study revisiting debate on interpretation of Article 38 of the Statute of International Court of Justice

Article 38(1) of the Statute of International Court of Justice (hereinafter ICJ) is today generally seen as a direction to the significant sources of international law, which the world court must consider in resolving disputes; however, the list is not exhaustive nor encompasses all the formal and material sources of the international legal system. Article 38 of the Statute of ICJ was written ninety years ago in a different world, a question is under debate in many states, whether or not sources mentioned in Article 38 of the statute are compatible with needs of 21st century ? In recent decade, many new actors come on the stage which have transformed international law and now it is not only governs relations among states but also covers many International Organizations. Article 38(2) does refer to the other possible sources but does not define them. Moreover, law is a set of rules that citizens must follow to regulate peace and order in society. These laws are binding on both the individual and the state on a domestic and international level. Do states regard this particular rule as a rule of international law? The modern legal system of states is in the form of a specified and well organized set of rules, regulating affairs of different organs of a state. States also need a body of rules for their intercourse with each other. These sets of rules among states are called “International Law.” This article examines international law, its foundation and sources. It considers whether international conventions and treaties can be the only way states can considerably create international law, or there is a need for clarity about the sources of international law. Article is divided into two parts, the first one deals with sources of international law discussed in Article 38 of the statute of International Court of Justice whereas the second one discusses the material and formal sources of law, which still need reorganization as sources of law.

Improving self organizing capabilities of local communities for sustainable development in decentralized Indonesia : the roles of procedural justice and social learning

The development planning process introduced under Law No. 25/2004 is said to be a better approach to increase public participation in decentralised Indonesia. This Law has introduced planning mechanisms, called Musyawarah Perencanaan Pembangunan (musrenbang), to provide a forum for development planning. In spite of the expressed intention of these mechanisms to improve public participation, some empirical observations have cast doubt on the outcomes. As a result, some local governments have tried to provide alternative mechanisms for participatory local development planning processes. Since planning constitutes one of the most effective ways to improve community empowerment, this paper aims to examine the extent to which the alternative local development planning process in Indonesia provides sufficient opportunities to improve the self organising capabilities of communities to sustain development programs to meet local needs. In so doing, this paper explores the key elements and approaches of the concept of community empowerment and shows how they can be incorporated within planning processes. Based on this, it then examines the problems encountered by musrenbang in increasing community empowerment. Having done this, it is argued that to change current unfavourable outcomes, procedural justice and social learning approaches need to be incorporated as pathways to community empowerment. Lastly the capacity of an alternative local planning process, called Sistem Dukungan (SISDUK), introduced in South Sulawesi, offering scope to incorporate procedural justice and social learning is explored as a means to improve the self organizing capabilities of local communities.

The taxation of international maritime leasing profits : has the commissioners ship come in?

In light of McDermott Industries (AUST) Pty Ltd v Commissioner of Taxation, and Draft Taxation Ruling TR 2006/D8, this article considers the current Australian taxation position of profits arising from the cross-border leasing of vessels in the maritime industry. It focuses on the tax treaties to which Australia is a party, in particular the application of the business profits provisions of those treaties, and the deemed existence of a permanent establishment where substantial equipment, owned by a fiscal non-resident, is used within Australian waters.

The roles of procedural justice and social learning in improving self organizing capabilities of local communities for sustainable development in decentralized Indonesia

The development planning process under Law No. 25/2004 is said to be a new approach to increase public participation in decentralised Indonesia. This Law has introduced planning mechanisms, called Musyawarah Perencanaan Pembangunan (Musrenbang), to provide a forum for development planning. In spite of the expressed intention of these mechanisms to improve public participation, some empirical observations have cast doubt on the outcomes. As a result, some local governments have tried to provide alternative mechanisms to promote for participation in local development planning. Since planning is often said to be one of the most effective ways to improve community empowerment, it is of particular concern, to examine the extent to which the current local development planning processes in Indonesia provide sufficient opportunities to improve the self organising capabilities of communities to sustain development programs to meet local needs. With this objective in mind, this paper examines problems encountered by the new local planning mechanism (Musrenbang) in increasing local community empowerment particularly regarding their self organising capabilities. The concept of community empowerment as a pathway to social justice is explored to identify its key elements and approaches and to show how they can be incorporated within planning processes. Having discussed this, it is then argued that to change current unfavorable outcomes, procedural justice and social learning approaches need to be adopted as pathways to community empowerment. Lastly it is also suggested that an alternative local planning process, called Sistem Dukungan (SISDUK), introduced in South Suluwezi in collaboration with JAICA in 2006 (?) offers scope to incorporate such procedural justice and social learning approaches to improve the self organizing capabilities of local communities.

V: Rewriting and reclaiming history : an analysis of the emergence of restorative justice in western criminal justice systems

During the last three decades, restorative justice has emerged in numerous localities around the world as an accepted approach to responding to crime. This article, which stems from a doctoral study on the history of restorative justice, provides a critical analysis of accepted histories of restorative practices. It revisits the celebrated historical texts of the restorative justice movement, and re-evaluates their contribution to the emergence of restorative justice measures. It traces the emergence of the term 'restorative justice', and reveals that it emerged in much earlier writings than is commonly thought to be the case by scholars in the restorative justice field. It also briefly considers some 'power struggles' in relation to producing an accepted version of the history of restorative justice, and scholars' attempts to 'rewrite history' to align with current views on restorative justice. Finally, this article argues that some histories of restorative justice selectively and inaccurately portray key figures from the history of criminology as restorative justice supporters. This, it is argued, gives restorative justice a false lineage and operates to legitimise the widespread adoption of restorative justice around the globe.

The Healthy Trends of International Relations Research

As the end of the Cold War approached in 1989, Caroline Thomas argued: “It is important that the discipline [International Relations, IR] should address the issue of disease and more broadly, health, not simply to facilitate containment of disease transmission across international borders but also because central notions of justice, equity, efficiency and order are involved” (1989:273).1 Ten years later, Craig Murphy echoed these sentiments. Murphy (2001: 352) proposed that IR had yet to grapple with the political consequences of growing inequality between the world’s rich and poor, and areas such as health—where these inequalities were most stark—should become the field’s core business. How IR’s theories and methods would approach these issues was less clear. Bettcher and Yach (1998) cautioned that IR would be unable to develop progressive research projects that explored global health diplomacy as a global public good without adopting new perspectives and methods. Others warned that the expansion of security studies into areas such as global health would weaken the intellectual coherency of the field (Walt 1991:213). Taking its cue from the recent Ng and Prah Ruger (2011) study, this paper returns to these concerns to briefly explore key trends and potential future concerns of research in IR on health...

A promise and a possibility : the limitations of the traditional criminal justice system as an explanation for the emergence of restorative justice

The claim that restorative justice emerged in response to the failings of the traditional criminal justice system is frequently made and rarely challenged in the restorative justice literature. It is stated unproblematically, as though it is an unassailable fact rather than a powerful truth claim, thereby positioning restorative justice as a natural, progressive and superior model of justice in comparison with the traditional criminal justice system. This truth claim therefore bestows restorative justice with a legitimacy that is difficult to challenge or refute. Drawing on a Foucaultian genealogy of restorative justice, this article seeks to destabilise the truth claim that restorative justice emerged in response to the failings of the criminal justice system. While the shortcomings of the traditional criminal justice system may provide a backdrop to the emergence of restorative justice, this article argues that such a possibility makes restorative justice a possibility rather than an inevitability.

Modes of criminal justice, indigenous youth and social democracy

The political question of how the will of a community is to be democratically formed and adhered to, the question of social democracy, is normatively tied to the mode of criminal justice employed within that democratic public sphere. Liberal, republican, procedural and communitarian forms of democratic will-formation respectively reflect retributive,restorative, procedural and co-operative modes of criminal justice. After first elaborating these links through the critical response of republican and procedural theories of democracy to the liberal practice of democratic will-formation and its retributive mode of justice, our discussion considers the recent practice of restorative and procedural justice with respect to Indigenous youth; and this in the context of a severely diminished role for Indigenous justice agencies in the public sphere. In light of certain shortcomings in both the restorative and procedural modes of justice, and so too with republican and procedural understandings of the democratic public sphere, we turn to a discussion of procedural communitarianism, anchored as it is in Dewey’s notion of social co-operation. From here we attempt a brief formulation of what a socially co-operative mode of justice might consist of; a mode of justice where historically racial and economically coercive injustices are sufficiently recognised.

The High Court of Australia and the Marlboro Man: The Battle Over the Plain Packaging of Tobacco Products

In 2012, the High Court of Australia handed down a landmark decision on the plain packaging of tobacco products. This chapter considers the historic ruling in the case of JT International SA v Commonwealth; British American Tobacco Australasia Ltd v Commonwealth. This chapter explores several themes in the decision. First, it highlights the historical work by the High Court of Australia on the role of health regulation, the use of health warnings, and tobacco control. Second, the chapter considers the High Court of Australia's view that intellectual property law promotes the public interest.Third, it explores the High Court of Australia’s analysis of the constitutional law on acquisition of property on just terms. Finally, this chapter contends that the High Court of Australia's ruling on plain packaging of tobacco products will spark an 'Olive Revolution' — and will encourage superior courts and policy-makers to follow suit.

High body mass index is not a barrier to physical activity: Analysis of international rugby players' anthropometric data

Recent data indicate that levels of overweight and obesity are increasing at an alarming rate throughout the world. At a population level (and commonly to assess individual health risk), the prevalence of overweight and obesity is calculated using cut-offs of the Body Mass Index (BMI) derived from height and weight. Similarly, the BMI is also used to classify individuals and to provide a notional indication of potential health risk. It is likely that epidemiologic surveys that are reliant on BMI as a measure of adiposity will overestimate the number of individuals in the overweight (and slightly obese) categories. This tendency to misclassify individuals may be more pronounced in athletic populations or groups in which the proportion of more active individuals is higher. This differential is most pronounced in sports where it is advantageous to have a high BMI (but not necessarily high fatness). To illustrate this point we calculated the BMIs of international professional rugby players from the four teams involved in the semi-finals of the 2003 Rugby Union World Cup. According to the World Health Organisation (WHO) cut-offs for BMI, approximately 65% of the players were classified as overweight and approximately 25% as obese. These findings demonstrate that a high BMI is commonplace (and a potentially desirable attribute for sport performance) in professional rugby players. An unanswered question is what proportion of the wider population, classified as overweight (or obese) according to the BMI, is misclassified according to both fatness and health risk? It is evident that being overweight should not be an obstacle to a physically active lifestyle. Similarly, a reliance on BMI alone may misclassify a number of individuals who might otherwise have been automatically considered fat and/or unfit.

Review of international procurement procedures

Contractor selection is a crucial element in construction procurement (Drew & Skitmore 1993, p. 363). Contractors are selected through the tender process, which varies according to country, state and contracting organisation and is subject to individual differences. This paper reviews a range of international tender processes, highlighting the ethical features that govern these guidelines. The paper is part of a project to develop ethical guidelines for procurement for major contracting authorities. By reviewing tender guidelines we are able to gain an indication of the type of ethical standards reserved for procurement. The need for good business ethics in the tender process stems from the belief that ‘good ethical practice’ is critical in meeting organisational goals (Vee & Skitmore 2003, p. 125). Hence, an ethical tender process will select ethical contractors who are viewed as beneficial to the contracting authority.

Firm social, cultural and intellectual capital : strategic indicators of international client satisfaction

Despite the increasing significance of the construction industry as an emerging sector of the Australian economy, there is inadequate research performed on construction design firms in terms of theoretical and empirical foundations. Although past research has identified the barriers and success factors for firm market entry, evidence suggests that to date no research has explicitly explored the sustainability of construction design firms in international markets. SMEs and their approach to firm internationalisation differ significantly from large manufacturing firms and a vast majority of construction design firms operate as SMEs. This paper develops a sustainable business model for construction design SMEs, which rely upon the development of clear Client Following (CF) versus Market Seeking (MS) strategies to support internal firm strategic and operational management. The understanding of these strategies is vital as the application of either will shape the design management approach of firms, which would in turn impact on the sustainability of these firms in foreign markets. Long-term sustainability of firms in international markets relies heavily upon client satisfaction. Client and project team participants’ communication during various design processes has often been problematic and the added difficulty of communicating across international boundaries further compounds the problem of capturing and maintaining client’s requirements. Therefore this paper develops a model for economic sustainability of Australian construction design firms working in international markets by exploring factors that affect client satisfaction across international boundaries, through the development of business performance indicators. These include not only the critical financial capital but also other ‘softer’ indicators, namely: social, cultural and intellectual capital. These act as a firm’s measure of success and the acquisition of this type of capital will provide significant advantages to firms’ success, hence sustainability in international markets.

Planning mobile futures : the border artistry of International Baccalaureate Diploma choosers

This paper reports on a study of students choosing the International Baccalaureate Diploma (IBD) over state-based curricula in Australian schools. The IBD was initially designed as a matriculation certificate to facilitate international mobility. While first envisaged as a lifestyle agenda for cultural elites, such mobility is now widespread with more people living ‘beyond the nation’ through choice or circumstance. Beck (2007) and others highlight how the capacity to cross national borders offers a competitive edge with which to strategically pursue economic and cultural capital. Beck’s ‘border artistes’ are those who use national borders to their individual advantage through reflexive strategy. The study explored the rationales and strategy behind the choice of the IBD curriculum expressed by students in a focus group interview and an online survey. This paper reports on their imagined transnational routes and mobile orientations, and how a localised curriculum limits their imagined mobile futures.

A comparison of international occupational therapy competencies : implications for Australian standards in the new millennium

Background/aim: A timely evaluation of the Australian Competency Standards for Entry-Level Occupational Therapists© (1994) was conducted. This thorough investigation comprised a literature review exploring the concept of competence and the applications of competency standards; systematic benchmarking of the Australian Occupational Therapy Competency Standards (OT AUSTRALIA, 1994) against other national and international competency standards and other affiliated documents, from occupational therapy and other cognate disciplines; and extensive nationwide consultation with the professional community. This paper explores and examines the similarities and disparities between occupational therapy competency standards documents available in English from Australia and other countries.----- Methods: An online search for national occupational therapy competency standards located 10 documents, including the Australian competencies.----- Results: Four 'frameworks' were created to categorise the documents according to their conceptual underpinnings: Technical-Prescriptive, Enabling, Educational and Meta-Cognitive. Other characteristics that appeared to impact the design, content and implementation of competency standards, including definitions of key concepts, authorship, national and cultural priorities, scope of services, intended use and review mechanisms, were revealed.----- Conclusion: The proposed 'frameworks' and identification of influential characteristics provided a 'lens' through which to understand and evaluate competency standards. While consistent application of and attention to some of these characteristics appear to consolidate and affirm the authority of competency standards, it is suggested that the national context should be a critical determinant of the design and content of the final document. The Australian Occupational Therapy Competency Standards (OT AUSTRALIA, 1994) are critiqued accordingly, and preliminary recommendations for revision are proposed.