Western Sahara : international law, justice and natural resources

As the Spanish were preparing to leave colonized Western Sahara in 1975, Morocco invaded, sparking a war with the Western Saharan Polisario Front. About 70% of Western Sahara was occupied by Morocco, which stations up to 140,000 soldiers in the territory, primarily along a 1700 kilometre long sand berm that is protected by one of the world’s largest fields of landmines. In 1991, Morocco and the Polisario Front agreed to a truce ahead of a referendum on Western Sahara’s future. However, Morocco has since refused to allow the referendum to take place, and has begun the extensive exploitation of Western Sahara’s non-renewable natural resources. This has both highlighted the plight of the Saharawi people who live in refugee camps in Algeria and in occupied Western Sahara, and pushed the Polisario Front back to a position where it is openly canvassing for a return to war.

International commercial law : principles and practices

International Commercial Law: Principles and practices considers the multifaceted nature of international commercial law and explains the rules, principles, policies and practices that comprise this area of law and the wide-ranging influences that shape it

The book provides an extensive analysis of the wider policy, moral, economic and political considerations underpinning international commercial law.
- It analyses and evaluates existing standards and practices, and suggests proposals for reform.
- It encourages readers to make informed judgments regarding the interpretation of relevant legal standards and to make predictions about how the law is likely to develop.

International human rights law: all show, no go

This article examines the following issues: (i) If international human rights  instruments are so worthwhile, why are much of the world’s people still living in conditions of destitution? and (ii) what can be done to make international law the best it can be at improving the living standards of the human species?

In search of coherent jurisprudence for international criminal law : correlating universal human responsibilities with universal human rights

I. The Evolution of International Criminal Law International criminal justice concerns breaches of international rules entailing the personal criminal liability of individuals (as opposed to the State for which the individuals may act as agents or organs), and presently includes acts such as genocide, torture, crimes against humanity, aggression and terrorism. ... A rule stating: any act of armed conflict which directly causes the death of a civilian is a war crime unless it can be shown that the military advantage gained by the attack outweighs the harm. ... Thus, so far as international criminal law is concerned any act during armed conflict which results in the death or injury to a person who does not pose a direct threat to the life of the accused should be a war crime. ... Pursuant to the Rome Statute and as a matter of customary international law torture is a war crime when performed in the context of an armed conflict, and a crime against humanity when it is part of systematic criminal conduct. ... Torture can also constitute an individual international crime, even where it does not satisfy the criteria of a war crime or crime against humanity. ...

The creation of international commercial law: Sovereignty felled?

The creation of international commercial law presents an interesting paradox for proponents of sovereignty in international law. Indeed, it could be argued that the creation of international commercial law is the vanishing point of sovereignty in that nation states are becoming increasingly less important in the creation of international commercial law with the growth of regional organizations, non-state actors, and international arbitration. This is spurred on by the march of globalization and the consequent need for international commercial law. The term "harmonization" will be used as a surrogate to discuss the creation of international commercial law, as it is the primary means by which international commercial law is created. This article seeks to chart this trend and show that nation states are being marginalized and will become significantly less relevant as more and more international legal instruments are created. In Part II, I paint the landscape against which the process is evolving; in Part III, I will demonstrate the growing role of regional endeavors at harmonization; and in Part IV, I will attempt to draw broad themes that establish that nation states will increasingly have a secondary role in the creation of international commercial law.

A demandeur-centric theory of regime design in transnational commercial law

Recent scholarship on international agreement design has almost exclusively focused on the public international law area. The literature on regime design in the area of international private law lacks a solid theoretical foundation. Academic writing on public international law's state-centric approach is only amenable to crude transplantation and poses several puzzles in the international private law context. Resolving these puzzles is important because of the proliferation of transnational commercial agreements in areas that were traditionally the province of domestic law. This paper attempts to provide a starting point to address the theoretical vacuum. Part I argues that functionalist, liberal, and realist theories cannot fully explain transnational commercial law agreement design. Part II puts forth a demandeur-centric approach with the aid of examples that span the spectrum from hard law to soft law. Part III concludes that agreement design in transnational commercial law is premised on demandeur preferences and relative power.

Cross-border insolvency law and multinational enterprise groups: judicial Innovation as an international solution

The Article argues that courts confronting the effects of multinational enterprise insolvency must undertake a pragmatic incursion into the separate entity doctrine. This argument is premised on gaps in the current Model Law which confers significant discretion on the courts. Our research shows that courts have fashioned innovative solutions to fill the gaps and thatgreater recognition of the legitimacy of these judicial incursions into the separate entity doctrine would facilitate the reduction of transaction costs in the case of multinational group insolvencies. We identify criteriawhereby a court would be able to determine that the inherentseparateness of the corporate structure should be disregarded andthe group regarded as one.

The status of child offenders under international criminal justice: lessons from Sierra Leone

This article analyses the status of child offenders under international criminal justice. International criminal proceedings, especially those in the African continent, have recently highlighted the significance of children and young people as perpetrators of genocide, crimes against humanity and war crimes. It has been suggested by one commentator that there exist international prohibitions on the prosecution of children for international crimes. It will be argued here that this claim is not substantiated in respect either of customary or treaty-based international obligations.

Emergence of the individual as an international juristic entity: enforcement of International Human Rights

In this article it is contended that state practice, as evidenced in the  declarations of the judiciary and the many treaties and conventions  guaranteeing human rights, reveals a consensus of opinion acknowledging the individual to be an international juristic entity. So extensive is this practice that it could be seen as marking the emergence of a new customary international norm; or at least a general principle of international law, yet to crystallise into a custom; acknowledging the individual as the beneficiary of international rights. This is important for individuals and minority groups because if they possess international rights independently of the State, enforcement of their rights will no longer depend on the interests of the State. Where the State is often the offender of human rights, international law will not effectively confer any real rights unless the individual is so recognised as an international juristic entity.

Holding the purse strings : the continuing evolution of human rights law and the potential liability of the finance industry for human rights abuses

While the responsibility of States and, in more recent times, corporations, has been thoroughly discussed in relation to human right~, a new stage of evolution may be emerging in relation to the liability of the financial backers of an enterprise that is accused of human rights abuses. This article considers the basis in international law for such emerging liability and examines some of the legal avenues used in recent domestic litigation against financial institutions. The article concludes by examining some of the relevant instruments of 'soft' international law and notes that although there is little in the way of concrete legislation or judicial precedent that would hold financial institutions responsible for the actions of those they invest in, the potential for the law to evolve in that direction is clear.

Refugee law: the irrelevance of the framers` intentions

The Convention relating to the Status of Refugees 1951 ("the Convention") is over fifty years old. It is the most comprehensive legally binding international standard for the treatment of refugees.' The Convention governs the rights of refugees and the obligations of ratifying State parties towards refugees. The key aspect of the Convention is article 1A(2), which sets out the Convention definition of a refugee. It provides that a refugee is a person who: Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.2 At the international law level the definition has remained (effectively)3 unchanged during this period. However, there has been a considerable amount of uncertainty at the domestic level concerning the precise meaning that should be given to important aspects of the definition, such as "particular social group" and "persecution". Given that the Convention is the principal international instrument dealing with the rights of refugees (since it was ratified by Denmark in 1952, 140 states have acceded to the Convention)4 and the importance of the interests and indeterminate nature of several aspects of the definition of refugee, the interpretive approach adopted in relation to the Convention is of considerable importance.

Into the protecting arms: the League of Nations and the extension of international assistance to unprotected persons in the Middle East and Europe, 1926 - 1928

The refugee dilemma in Europe in the years between the two world wars had a number of aspects: humanitarian, political, and diplomatic. It raised questions of migration, questions of international law, and questions of the fate of hundreds of thousands of individuals. Refugees were visible from the very last days of the war and remained a matter of serious international concern even beyond the outbreak of war again in September 1939. The refugee dilemma in Europe was, firstly, a humanitarian crisis because the size of the refugee population was without precedent. It was also a political problem because national governments had to contend with questions about the refugees' legal status and their legitimacy under national and international law, as well as balance humanitarian concerns with national political interests. The humanitarian and political aspects together created a crisis for the international community newly united in the League of Nations. One of its first great acts-to take these refugees into its protective care-was not even prescribed for it in its Covenant. But the refugee crisis facing Europe was so great that member states were united in the belief that the League had been established precisely to undertake a task of this kind.

Does Australia's treatment of non-citizens accord with its international human rights obligations? with specific reference to the treatment of on-shore refugees

The son of immigrants, I was motivated to write a paper addressing the issues of alienation and discrimination which confronts non-citizens upon arriving in Australia. Apart from descendants of Australia's indigenous population, the common bond shared by all citizens and permanent residents of Australia is that they are either themselves immigrants or are descended from immigrants. In this paper I will look at whether Australia's law and practice meets its international human rights treaty and convention obligations vis-a-vis non-citizens. To investigate this issue I trace the history of immigration to Australia and look at the political policies which influenced the treatment of non-citizens from 1788 to present times. In 1958 when my parents stepped upon Australian soil as displaced persons, Australia was a very different place from Australia in the 1990s. At that time Australia was still firmly under the influence of the 'White Australia Policy' which openly encouraged discrimination against non-anglo saxons. Since those times Australia has advanced to become one of the most culturally diverse nations in the world where multiculturalism is encouraged and a non-discriminatory immigration program is supported by both Australia's major political parties. However, notwithstanding the great social advances made in Australia in recent decades the traditional legal sources of law, namely, judicial pronouncements, statutes and the Commonwealth Constitution have not kept pace and it is my submission that Australia's body of law inadequately protects the rights of non-citizens when compared to Australia's international human rights convention and treaty obligations. This paper will consider these major sources of law and will investigate how they have been used in the context of the protection of the rights of non-citizens. It will be asserted that the weaknesses exposed in the Australian legal system can be improved by the adoption of a Bill of Rights1 which encompasses Australia's international human rights treaty and convention obligations. It is envisaged that a Bill of Rights would provide a framework applicable at the State, Territory and Federal levels within which issues pertaining to non-citizens could be resolved. The direction of this thesis owes much to the writings, advice and supervision of Dr. Imtiaz Omar who was always available to discuss the progress of this work. Dr. Omar is a passionate advocate of human rights and has been a tremendous inspiration to me throughout my writing. I owe a debt of thanks to the partners of Coulter Burke who with good nature ignored the sprawl of books and papers on the boardroom table, often for days at a time, thus enabling me to return to my writing from time to time as my inspirational juices ebbed and waned. Thanks also go to my typists Julie Pante, Vesna Dudas and Irene Padula who worked after hours and on weekends always without complaint, on the various versions of this thesis. My final acknowledgement goes to my wife Paula who during the years that I was working on this thesis encouraged me during my darker moments and listened to all my frustrations yet never doubted that I would one day complete the task successfully. I wish to thank her wholeheartedly for her motivation and belief in my abilities. The law relied upon in the thesis is as at the 30th June, 1998. Bill or Charter of Rights 'are taken to be enactments which systematically declare certain fundamental rights and freedoms and require that they be respected'. See Evans, G. 'Prospect and Problems for an Australian Bill of Rights' (1970) 3 Australian Year Book of International Law 1 at 16. Some such notable exception is the New Zealand Bill of Rights Act 1990, contained in an ordinary statute.