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.

The passage of authority: imagining the political transformation of Australia’s Christmas Island, from sovereignty to governance

In 2012, Australia’s Christmas Island is best known as an island of immigration detention, a key component of Australia’s growing offshore border security apparatus, where interdicted boat arrivals seeking asylum are detained and processed. This article offers one account of how the Island came to be what it is, by providing two snapshots of the operable set of power relations on Christmas Island, then and now: ‘Island in the Sun’, and ‘Tropics of Governance’. Side by side, their stark contrast reveals the passage of authority through time and place, from the embodied, unified voice of the sovereignty of the British Empire to the palliative communication and bureaucratic sincerity that characterise governance. By disclosing shifting patterns of emergence and decay and showing border security’s intimate relation to governance, this article seeks to offer a deepened understanding of the current detention situation in its immanence. What can now be seen as Christmas Island’s past follies also reveals the restless work of successive political imaginations, the shifting ways and means by which an island can be translated into a solution to a political problem, and how successive solutions tend toward wreck and ruin.

The embrace of border security: maritime jurisdiction, national sovereignty, and the geopolitics of operation sovereign borders

Border security has become one of the key means by which the sovereignty and security of powerful nation-states is projected. This paper offers a set of observations of the Australian Commonwealth’s descriptions and instructions for its embrace of border security. Border security is legible here as a geopolitics that transforms the rights and responsibilities of maritime jurisdictions into a space of security that projects national sovereignty through the interdiction of boat arrivals. Its intensification as Operation Sovereign Borders is read as a further variation within national sovereignty, one that elevates the decisionist prerogative into total deterrence. Operation Sovereign Borders pushes the limits of sovereignty’s existence in the state toward a total domination of space, perception and human life in Australia’s maritime jurisdictions, in the name of the nation. This necessitates the development, defence and reinforcement of a regionally engaged materiality that is embodied, extended, enacted, and distributed. The intended effect of this coordinated effort is to secure the nation’s sovereignty as a unity, but the broader effect has been to devalue offshore life to secure onshore interests, in a way that now necessitates indefinite offshore detention.

Administering the global trap : the role of educational leaders

This article begins with an analysis of Martin and Schumann’s thesis that globalization is (a) enhancing the power of corporations and undermining the sovereignty of nation states and (b) in the process consuming social capital at an alarming rate, thus producing a loss of social cohesion. Globalization is then discussed in terms of the transformations of technology, finance, production and culture, and Gray’s account of differing relationships between markets and cultures in differing forms of capitalism is introduced. The Third Way is then analysed as a specific attempt to resolve cultural contradictions and its limitations are set out. As a possible way forward Amartya Sen’s account of ‘development as freedom’ is outlined and the implications for the role of educational leaders are discussed.

What is 'political communication'? The rationale and scope of the implied freedom of political communication

The aim of this article is to identify what counts as ‘political communication’ for the purposes of the implied constitutional freedom of political communication. This is done for two reasons. The first is to delimit the scope of the implied freedom. The second is to clarify whether racial vilification is ‘political communication’, which is the initial step that must be taken in order to assess the constitutionality or otherwise of current Australian racial vilification laws. It is, however, necessary and desirable to establish a sound theoretical basis for the implied freedom before these questions can be properly considered. To this end, it is argued that a minimalist model of judicially-protected popular sovereignty underpins the implied freedom and is the rationale that must guide its interpretation and application. The analysis undertaken demonstrates that a generous zone of ‘political communication’ must attract constitutional protection and that racial vilification will in certain circumstances amount to ‘political communication’.

Coastal state fisheries management : a review of Australian enforcement action in the Heard and McDonald Islands Australian Fishing Zone

In 1953 the Heard and McDonald Islands Act, which formalised the transfer of sovereignty over the two named sub-Antarctic islands from the United Kingdom, was passed by the Australian Government. For the ensuing 40 years, Australian management of the Islands was uneventful. The first subAntarctic scientific station was established at Atlas Cove, on Heard Island, in December 1947 following the initial indication by Britain of a willingness to transfer rights to the Islands. In 1987 the Islands, together with their 12 mile territorial sea, were proclaimed a wilderness reserve with a number of activities including fishing and mining prohibited. The same area was included on the WorId Heritage List in 1997. In 1979 a 200 nautical mile Australian Fishing Zone (AFZ) was proclaimed around all Australian territories. In 1994 new terminology was embraced and the Exclusive Economic Zone was declared.

Feudal tenure and native title: revising an enduring fiction

This article argues that the feudal doctrine of tenure continues to endure as the foundation for Australian land law despite its obvious social and historical irrelevance. The doctrine of tenure is a derivation of feudal history. The article examines some of its historical foundations with the aim of highlighting the disparity between the fiction of this inherited form and the reality of a colonial Australian landscape. Particular attention is given to the fact that Australian feudal tenure was always a passive framework. It was disconnected with the landscape and therefore incapable of responding to the needs of colonial expansion. This resulted in a clear disparity between feudal form and the reality of a land system populated by statutory grants. The article argues that feudal tenure was never truly devised as a responsive land system but rather, adopted as a sovereignty device. In this sense, legal history was utilised with the aim of promoting imperial objectives within colonial Australia. Tenure was equated with absolute Crown ownership over all Australian territory despite the fact that this was inconsistent with the orthodox tenets of feudal tenure.
The article argues that the consequence of adopting feudal tenure and absolute Crown ownership has been the estrangement of indigenous rights, title and culture. The creation and legitimisation of a land framework with a fundamentally Eurocentric perspective completely destroyed indigenous interests during the settlement and colonial era. It created an imperial ideology where colonists silently accepted the denial of indigenous identity. The decision of the Mabo High Court to reassess this historical perspective and accept the validity of proven native title claims clearly disturbed tenurial assumptions. However, the High Courts' reification of the feudal form created a fundamental paradox: indigenous title was accepted as a proprietary right within a framework incapable of and unequipped to recognise the fundamentally different cultural perspectives of customary ownership. The article argues that native title cannot evolve within a common law framework that regards ownership as a derivation of the English Crown. It is suggested that ultimately, a pluralist property culture, where indigenous and non-indigenous title exist as equalised entities, can only be properly nurtured with the full and absolute abolition of the feudal doctrine of tenure.

Sources of doubt, sources of duty: HLA Hart on international law

In many ways HLA Hart’s critical analysis of the concept of law, with its repudiation of simple command theories of legal obligation, is at the same time a critique of the notion of state sovereignty. It is therefore an adumbration, if no more, of a radical reconceptualisation of international law, one which redefines the distinction between municipal and in-ternational jurisdiction. This paper is an exploration of what Hart could or ‘should’ have said about international law, based as much as possible on what he did say about international law and law in general. After some introductory comments it outlines Hart’s general analysis of law, with particular reference to the relevance for our understanding of international law.

Teaching Chinese, teaching in Chinese, and teaching the Chinese

This article examines specific issues encountered in various areas of Chinese teaching in Australia. These issues are linked to the spheres of language planning as acquisition and as recovery and language planning as retention (Lo Bianco, 10.1007/s10993-006-9042-3). Specifically relevant to Chinese in Australia is its current prominence in formally declared national language policy, its changing status over time and its similarities and differences with Chinese in the United States (Wang, 10.1007/s10993-006-9043-2). The internationalization of education, and its commodification, has in recent years led to a major expansion in the range of offerings in Chinese in Australia, now catering to growing, and in some institutions to numerically dominant, groupings of native speakers with radically different language and academic needs from the traditional clientele of tertiary and school Chinese programs.

China's aircraft carrier ambitions

Focuses on the intent of the Chinese government to acquire an aircraft carrier force as part of its ambition to achieve high seas naval capability. Possibility of buying a light aircraft carrier from a European builder; Concerns over the possibility to operate aircraft carrier battle groups; Protection of sovereignty and maritime resources.

Normative regionalism in East Asia

Normative regionalism has been largely overlooked and ignored; and
normative questions concerning regionalization are deemed unimportant,
idealist and irrelevant to Asia. This is mainly due to the domination of
realism, pragmatism and functional approaches, thus inhibiting the substantial
progress of regionalism in East Asia. It is time that scholars and
policy-makers take normative orders of regionalism seriously.
This chapter examines the state of normative regionalism and its impact
in East Asia through an overview of the historical evolution of the
concept of regionalism, the meanings of and variations in Asian regionalism,
and the impact of all these on regional cooperation in East Asia.
It examines the old pan-Asianism, the advocacy of "re-Asianization" in
Japan, Mahathir's idea of neo-Asianism in Malaysia and the ideas of
regionalism developed in Korea and China. This examination provides the
basis for a discussion of the normative order of East Asian regionalism
by addressing a set of questions concerning national sovereignty, nationalism,
democracy and regional identities.
In particular, this chapter will examine how Asian nationalist and statist
normative thinking influences various ideas of regionalism and constrains
the development of genuine regionalism in East Asia.

Australian dental policy reform and the use of dental therapists and hygienists

Oral diseases including dental caries and periodontal disease are among the most prevalent and costly diseases in Australia today. Around 5.4% of Australia’s health dollar is spent on dental services totalling around $2.6 billion, 84% of which are delivered through the private sector (AIHW 2001). The other 16% is spent providing public sector services in varied and inadequate ways. While disease rates among school children have declined significantly in the past 20 years the gains made among children are not flowing on to adult dentitions and our aging population will place increasing demands on an inadequate system into the future (AHMAC 2001). Around 50% of adults do not received regular care and this has implications for widening health inequalities as the greatest burden falls on lower income groups (AIHW DSRU 2001). The National Competition Policy agenda has initiated, Australia-wide, reviews of dental legislation applying to delivery of services by dentists, dental specialists, dental therapists and hygienists and dental technicians and prosthetists. The review of the Victorian Dentists Act 1972, was completed first in 1999, followed by the other Australian states with Queensland, the ACT and the Northern Territory still developing legislation. One of the objectives of the new Victorian Act is to ‘…promote access to dental care’. This study has grown out of the need to know more about how dental therapists and hygienists might be utilised to achieve this and the legislative frameworks that could enable such roles. This study used qualitative methods to explore dental health policy making associated with strategies that may increase access to dental care using dental therapists and hygienists. The study used a multiple case study design to critically examine the dental policy development process around the Review of the Dentists Act 1972 in Victoria; to assess legislative and regulatory dental policy reforms in other states in Australia and to conduct a comparative analysis of dental health policy as it relates to dental auxiliary practice internationally. Data collection has involved (I) semi-structured interviews with key participants and stakeholders in the policy development processes in Victoria, interstate and overseas, and (ii) analysis of documentary data sources. The study has taken a grounded theory approach whereby theoretical issues that emerged from the Victorian case study were further developed and challenged in the subsequent interstate and international case studies. A component of this study has required the development of indicators in regulatory models for dental hygienists and therapists that will increase access to dental care for the community. These indicators have been used to analyse regulation reform and the likely impacts in each setting. Despite evidence of need, evidence of the effectiveness and efficiency of dental therapists and hygienists, and the National Competition Policy agenda of increasing efficiency, the legislation reviews have mostly produces only minor changes. Results show that almost all Australian states have regulated dental therapists and hygienists in more prescriptive ways than they do dentists. The study has found that dental policy making is still dominated by the views of private practice dentists under elitist models that largely protect dentist authority, autonomy and sovereignty. The influence of dentist professional dominance has meant that governments have been reluctant to make sweeping changes. The study has demonstrated alternative models of regulation for dental therapists and hygienists, which would allow wider utilisation of their skills, more effective use of public sector funding, increased access to services and a grater focus on preventive care. In the light of theses outcomes, there is a need to continue to advocate for changes that will increase the public health focus of oral health care.

Masculinity and femininity in "The Mabinogion"

This thesis is submitted within the discipline of Women's Studies. It attempts to assess the life of women in a tribal society at the brink of dissolution. Wales at the eve of and during the first century of the Norman occupation is representative of such a society and historians admit that what little we know of its social conditions can be gleaned from the pages of the narrative prose collection The Mabinogion. Consequently this study uses an interdisciplinary approach. Eight stories from The Mabinogion collection have been studied: The Four Branches, comprising Pwyll Prince of Dyfed, Branwen Daughter of Llyr, Manawydan Son of Llyr and Math Son of Mathonwwy; the story of Culhwch and Olwen and the Three Romances, comprising The Lady of the Fountain, Peredur Son of Efrawg and Gereint Son of Erbin. The Four Branches are a fourfold narrative held together by the figure of Sovereignty (formerly the Celtic goddess of the land), her chosen consort and her son. The protagonists are now represented as superhuman men and women and encoded in their lifestories are the rules for gender-related 'right' behaviour of princes and their spouses. The Three Romances still show the same constellation, but the figures of Sovereignty and her consort have been replaced by the Knight and his Lady with considerable loss of behavioural certainty for both genders. The romances are also indicative of growing economic insecurity. Culhwch and Olwen has been included for contrast and for its richness in folkloric motifs. Apart from studying the gender-roles in leading families at the time, the thesis advances the theory that The Four Branches may have been the work of a Welsh noblewoman - a theory based on the inherent knowledge of Welsh pre-Christian dynastic traditions, legal and political practices and the realities of women's lives at the time. The study also shows that the status of women and their legal rights in pre-Norman Wales were much more restricted and cannot generally be compared with that of women in England or Ireland.

Australia and East Timor : elitism, pragmatism and the national interest

For over two decades the issue of East Timor's right to self-determination has been a ‘prickly’ issue in Australian foreign policy. The invasion by Indonesian forces in 1975 was expected, as Australian policy-makers had been well informed of the events leading up to the punitive action being taken. Indeed, prior discussions involving the future of the territory were held between the Australian Prime Minister and the Indonesian President in 1974. In response to the events unfolding in the territory the Australian Labor Government at the time was presented with two policy options for dealing with the issue. The Department of Defence recommended the recognition of an independent East Timor; whereas the Department of Foreign Affairs proposed that Australia disengage itself as far as possible from the issue. The decision had ramifications for future policy considerations especially with changes in government. With the Department of Foreign Affairs option being the prevailing policy what were the essential ingredients that give explanation for the government's choice? It is important to note the existence of the continuity and cyclical nature of attitudes by Labor governments toward Indonesia before and after the invasion. To do so requires an analysis of the influence ‘Doc’ Evatt had in shaping any possible Labor tradition in foreign policy articulation. The support given by Evatt for the decolonisation of the Netherlands East Indies (Indonesia) gave rise to the development of a special relationship-so defined. Evidence of the effect Evatt had on future Labor governments may be found in the opinions of Gough Whitlam. In 1975 when he was Prime Minister, Whitlam felt the East Timor issue was merely the finalisation of Indonesia's decolonisation honouring Evatt's long held anti-colonialist tradition existing in the Australian Labor Party. The early predisposition toward Indonesia's cohesiveness surfaced again in the Hawke and Keating Labor governments of later years. It did not vary a great deal with changes in government The on-going commitment to preserving and strengthening the bilateral relationship meant Indonesia's territorial integrity became the focus of the Australian political elites’ regional foreign policy determinations. The actions taken by policy-makers served to promote the desire for a stable region ahead of independence claims of the East Timorese. From a realist perspective, the security dilemma for Australian policy-makers was how to best promote regional order and stability in the South East Asian region. The desire for regional cohesiveness and stability continues to drive Australian political elites to promote policies that gives a priority to the territorial integrity of regional states. Indonesia, in spite of its diversity, was only ever thought of as a cohesive unitary state and changes to its construct have rarely been countenanced. Australia's political elite justifications for this stance vacillate between strategic and economic considerations, ideological (anti-colonialism) to one of being a pragmatic response to international politics. The political elite argues the projection of power into the region is in Australia’s national interest. The policies from one government to the next necessarily see the national interest as being an apparent fixed feature of foreign policy. The persistent fear of invasion from the north traditionally motivated Australia's political elite to adopt a strategic realist policy that sought to ‘shore up’ the stability, strength and unity of Indonesia. The national interest was deemed to be at risk if support for East Timorese independence was given. The national interest though can involve more than just the security issue, and the political elite when dealing with East Timor assumed that they were acting in the common good. Questions that need to be addressed include determining what is the national interest in this context? What is the effect of a government invoking the national interest in debates over issues in foreign policy? And, who should participate in the debate? In an effort to answer these questions an analysis of how the ex-foreign affairs mandarin Richard Woolcott defines the national interest becomes crucial. Clearly, conflict in East Timor did have implications for the national interest. The invasion of East Timor by Indonesia had the potential to damage the relationship, but equally communist successes in 1975 in Indo-China raised Australia's regional security concerns. During the Cold War, the linking of communism to nationalism was driving the decision-making processes of the Australian policy-makers striving to come to grips with the strategic realities of a changing region. Because of this, did the constraints of world politics dominated by Cold War realities combined with domestic political disruption have anything to do with Australia's response? Certainly, Australia itself was experiencing a constitutional crisis in late 1975. The Senate had blocked supply and the Labor Government did not have the funds to govern. The Governor-General by dismissing the Labor Government finally resolved the impasse. What were the reactions of the two men charged with the responsibility of forming the caretaker government toward Indonesia's military action? And, could the crisis have prevented the Australian government from making a different response to the invasion? Importantly, and in terms of economic security, did the knowledge of oil and gas deposits thought to exist in the Timor Sea influence Australia's foreign policy? The search for oil and gas requires a stable political environment in which to operate. Therefore for exploration to continue in the Timor Sea Australia must have had a preferred political option and thoughts of with whom they preferred to negotiate. What was the extent of each government's cooperation and intervention in the oil and gas industry and could any involvement have influenced the Australian political elites’ attitude toward the prospect of an independent East Timor? Australia's subsequent de jure recognition that East Timor was part of Indonesia paved the way for the Timor Gap (Zone of Cooperation) Treaty signing in 1989. The signing underpinned Australia's acceptance of Indonesian sovereignty over East Timor. The outcome of the analysis of the issues that shaped Australia's foreign policy toward East Timor showed that the political elite became locked into an integration model, which was defended by successive governments. Moreover, they formed an almost reflexive defence of Indonesia both at the domestic and international level.

Rewriting Australian planning from the margins

If planning is the conscious formulation of a preferred.future and deliberate actions to realise that future in the landscape, then Indigenous Australians have long been involved in planning settlements and regions. Yet such actions - pre and post-contact - are absent from the history of Australian planning, as evidenced by some major texts on the subject. That also passes without serious comment in the planning literature and contemporary practice are the theoretical implications of admitting key aspects of recent Indigenous history - such as prior occupancy, ongoing sovereignty, resistance strategies, ghettoisation and Native Title. There are, therefore, significant gaps in the history and theory of Australian planning which impact negatively on its current teaching and practice. The consequences of such omissions range.from incomplete histories to ongoing injustices in Australian planning practice. My larger research project will collate these absences before reworking the history of Australian planning from the perspective of those systematically excluded from it -women, migrants from racially marked non-white backgrounds and Indigenous Australians. This paper will consider only a small part of this larger project. It will first examine some of the key texts which construct the history of Australian planning before examining one place - Lake Condah in Western Victoria - as one site of permanent settlement by the Gundijmara people who lived in stone houses arrayed in villages around an engineered sophisticated fish farming enterprise. Here then is but one example - admittedly subject to contestation over its scale, anthropological and archaeological fundamentals - which challenges the view of indigenous Australians as not only nomadic and "primitive" but also as legitimately placed outside the history of Australian planning. I will conclude by speculating on what this example might mean to any reworking of that history.