Queensland Environmental Practice Reporter 17(77) (2011/2012) Editorial

This issue begins with a paper by QUT masters student, Jenny Kortlaender, which considers the effectiveness of the United Nations Convention on Biological Diversity in addressing global biodiversity decline. This is followed by a paper by Fiona Leddy which critically analyses international shipping in Australian waters and the approach taken by Australia laws in addressing the risks posed by ship-based oil pollution. The third paper in this issue is by Adjunct Professor Hugh Lavery, Gina Lee and Carolyn S. Sandercoe. This paper considers the ecological principles to be followed in the sustainable design of large-scale marina developments. This paper highlights the differences between the practice of landscape ecology and the design of ecological landscapes. Finally, this issue includes a summary of relevant cases from the Queensland Planning and Environment Court and Court of Appeal by Michael Walton and Ben Job.

Points of convergence and divergence : normative, institutional and operational relationships between R2P and POC

As an international norm, the Responsibility to Protect (R2P) has gained substantial influence and institutional presence—and created no small controversy—in the ten years since its first conceptualisation. Conversely, the Protection of Civilians in Armed Conflict (PoC) has a longer pedigree and enjoys a less contested reputation. Yet UN Security Council action in Libya in 2011 has thrown into sharp relief the relationship between the two. UN Security Council Resolutions 1970 and 1973 follow exactly the process envisaged by R2P in response to imminent atrocity crimes, yet the operative paragraphs of the resolutions themselves invoke only PoC. This article argues that, while the agendas of PoC and R2P converge with respect to Security Council action in cases like Libya, outside this narrow context it is important to keep the two norms distinct. Peacekeepers, humanitarian actors, international lawyers, individual states and regional organisations are required to act differently with respect to the separate agendas and contexts covered by R2P and PoC. While overlap between the two does occur in highly visible cases like Libya, neither R2P nor PoC collapses normatively, institutionally or operationally into the other.

Capacity-building workshops on the responsibility to protect (R2P) and the protection of civilians (POC) in armed conflict - Summary Report

In June 2011, a research project team from the Institute for Ethics, Governance and Law (IEGL), Queensland University of Technology, the United Nations University, and the Australian Government’s Asia Pacific Civil-Military Centre of Excellence (APCMCOE) held three Capacity-Building Workshops (the Workshops) on the Responsibility to Protect (R2P) and the Protection of Civilians (POC) in Armed Conflict in Manila, Kuala Lumpur, and Jakarta. The research project is funded by the Australian Responsibility to Protect Fund, with support from APCMCOE. Developments in Libya and Cote d’Ivoire and the actions of the United Nations Security Council have given new significance to the relationship between R2P and POC, providing impetus to the relevance and application of the POC principle recognised in numerous Security Council resolutions, and the R2P principle, which was recognised by the United Nations General Assembly in 2005 and, now, by the Security Council. The Workshops considered the relationship between R2P and POC. The project team presented the preliminary findings of their study and sought contributions and feedback from Workshop participants. Prior to the Workshops, members of the project team undertook interviews with UN offices and agencies, international organisations (IOs) and non-government organisations (NGOs) in Geneva and New York as part of the process of mapping the relationship between R2P and POC. Initial findings were considered at an Academic-Practitioner Workshop held at the University of Sydney in November 2010. In addition to an extensive literature review and a series of academic publications, the project team is preparing a practical guidance text (the Guide) on the relationship between R2P and POC to assist the United Nations, governments, regional bodies, IOs and NGOs in considering and applying appropriate protection strategies. It is intended that the Guide be presented to the United Nations Secretariat in New York in early 2012. The primary aim of the Workshops was to test the project’s initial findings among an audience of diplomats, military, police, civilian policy-makers, practitioners, researchers and experts from within the region. Through dialogue and discussion, the project team gathered feedback – comments, questions, critique and suggestions – to help shape the development of practical guidance about when, how and by whom R2P and POC might be implemented.

An attack on Iran: the legal basis, or lack thereof

Talk of a possible Israeli strike on Iran’s nuclear facilities has re-ignited debate over the right of self-defence under international law. Some academics, including Anthony D'Amato and Alan Dershowitz, have claimed that an attack on Iran would be a permissible act of self-defence. Others, such as Kevin Jon Heller, argue that such action would be a clear breach of international law. So, who is correct? Would military action against Iran be legal or illegal?

China and the "Responsibility to Protect" : the implications of the Libyan intervention

The emerging principle of a “responsibility to protect” (R2P) presents a direct challenge to China’s traditional emphasis on the twin principles of non-intervention in the domestic affairs of other states and non-use of military force. This paper considers the evolution of China’s relationship with R2P over the past ten years. In particular, it examines how China engaged with R2P during the recent Libyan crisis, and considers what impact this conflict may have first, on Chinese attitudes to R2P, and second, on the future development and implementation of the doctrine itself. This paper argues that China’s decision to allow the passage of Security Council resolution 1973, authorising force in Libya, was shaped by an unusual set of political and factual circumstances, and should not be viewed as evidence of a dramatic shift in Chinese attitudes towards R2P. More broadly, controversy over the scope of NATO’s military action in Libya has raised questions about R2P’s legitimacy, which have contributed to a lack of timely international action in Syria. In the short term at least, this post-Libya backlash against R2P is likely to constrain the Security Council’s ability to respond decisively to other civilian protection situations.

From Absence to Presence, from Silence to Voice: Victims in Transitional Justice Since the Nuremberg Trials

As much as victims have been absent in traditional and national criminal justice for a long time, they were invisible in transitional and international criminal justice after World War II. The Nuremberg Trials were dominated by the perpetrators, and documents were mainly used instead of victim testimony. Contemporaries shared the perspective that transitional justice, both international and national procedures should channel revenge by the victims and their families into the more peaceful venues of courts and legal procedures. Since then, victims have gained an ever more important role in transitional, post-conflict and international criminal justice. Non-judicial tribunals, Truth and Reconciliation Commissions, and international criminal courts and tribunals are relying on the testimony of victims and thus provide a prominent role for victims who often take centre stage in such procedures and trials. International criminal law and the human rights regime have provided victims with several routes to make themselves heard and fight against impunity. This paper tracks the road from absence to presence, and from invisibility to the visibility of victims during the second half of the last and the beginning of the present century. It shows in which ways their presence has shaped and changed transitional and international justice, and in particular how their absence or presence is linked to amnesties.

The geostationary orbit : a critical legal geography of space’s most valuable real estate

This chapter attends to the legal and political geographies of one of Earth's most important, valuable, and pressured spaces: the geostationary orbit. Since the first, NASA, satellite entered it in 1964, this small, defined band of Outer Space, 35,786km from the Earth's surface, and only 30km wide, has become a highly charged legal and geopolitical environment, yet it remains a space which is curiously unheard of outside of specialist circles. For the thousands of satellites which now underpin the Earth's communication, media, and data industries and flows, the geostationary orbit is the prime position in Space. The geostationary orbit only has the physical capacity to hold approximately 1500 satellites; in 1997 there were approximately 1000. It is no overstatement to assert that media, communication, and data industries would not be what they are today if it was not for the geostationary orbit. This chapter provides a critical legal geography of the geostationary orbit, charting the topography of the debates and struggles to define and manage this highly-important space. Drawing on key legal documents such as the Outer Space Treaty and the Moon Treaty, the chapter addresses fundamental questions about the legal geography of the orbit, questions which are of growing importance as the orbit’s available satellite spaces diminish and the orbit comes under increasing pressure. Who owns the geostationary orbit? Who, and whose rules, govern what may or may not (literally) take place within it? Who decides which satellites can occupy the orbit? Is the geostationary orbit the sovereign property of the equatorial states it supertends, as these states argued in the 1970s? Or is it a part of the res communis, or common property of humanity, which currently legally characterises Outer Space? As challenges to the existing legal spatiality of the orbit from launch states, companies, and potential launch states, it is particularly critical that the current spatiality of the orbit is understood and considered. One of the busiest areas of Outer Space’s spatiality is international territorial law. Mentions of Space law tend to evoke incredulity and ‘little green men’ jokes, but as Space becomes busier and busier, international Space law is growing in complexity and importance. The chapter draws on two key fields of research: cultural geography, and critical legal geography. The chapter is framed by the cultural geographical concept of ‘spatiality’, a term which signals the multiple and dynamic nature of geographical space. As spatial theorists such as Henri Lefebvre assert, a space is never simply physical; rather, any space is always a jostling composite of material, imagined, and practiced geographies (Lefebvre 1991). The ways in which a culture perceives, represents, and legislates that space are as constitutive of its identity--its spatiality--as the physical topography of the ground itself. The second field in which this chapter is situated—critical legal geography—derives from cultural geography’s focus on the cultural construction of spatiality. In his Law, Space and the Geographies of Power (1994), Nicholas Blomley asserts that analyses of territorial law largely neglect the spatial dimension of their investigations; rather than seeing the law as a force that produces specific kinds of spaces, they tend to position space as a neutral, universally-legible entity which is neatly governed by the equally neutral 'external variable' of territorial law (28). 'In the hegemonic conception of the law,' Pue similarly argues, 'the entire world is transmuted into one vast isotropic surface' (1990: 568) on which law simply acts. But as the emerging field of critical legal geography demonstrates, law is not a neutral organiser of space, but is instead a powerful cultural technology of spatial production. Or as Delaney states, legal debates are “episodes in the social production of space” (2001, p. 494). International territorial law, in other words, makes space, and does not simply govern it. Drawing on these tenets of the field of critical legal geography, as well as on Lefebvrian concept of multipartite spatiality, this chapter does two things. First, it extends the field of critical legal geography into Space, a domain with which the field has yet to substantially engage. Second, it demonstrates that the legal spatiality of the geostationary orbit is both complex and contested, and argues that it is crucial that we understand this dynamic legal space on which the Earth’s communications systems rely.

Cross-border insolvency and legal transnationalisation

The last twenty years have seen an explosion of approaches for dealing with an inevitable consequence of globalised markets, that of cross-border insolvencies. This article places phenomena such as the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-border Insolvency and Cross-border Insolvency Agreements (also known as Protocols) within the context of developing laws on international commercial transactions. First it briefly describes the evolution of the international commercial law (sometimes known as the law merchant) to provide a context to understanding the international commercial responses to the problems created by cross-border insolvencies. Next, it outlines the range of approaches being adopted by States and multilateral bodies in recent decades to resolve cross-border insolvency issues. Finally it draws some preliminary conclusions on the potential implication of this transnationalisation process and broader international commercial law perspective, in particular on the capacity of Cross-Border Insolvency Agreements to address cross-border insolvency issues.

The WTO, the national security exception and climate change

Article XX has been a valuable instrument to justify exceptions from the anti-discrimination provisions of the GATT 1994. In general, this Article is considered by experts to be the most likely defence for any climate change mitigation measure in breach GATT 1994 obligations. That assumption is not in dispute here; rather, this article considers the requirements of the Article XX exceptions, but also explores the conditions of the National Security exception contained in Article XXI. Although it is possible that this exception could be used for climate change mitigation measures, this paper argues that it is unlikely that the National Security exception could be legitimately applied in these circumstances without member agreement to the contrary.

Freshwater, habitats and ecosystems

While the Ramsar Convention for the Protection of Wetlands of International Importance was the first habitat-based treaty, much of the recent focus of international attention in the area of freshwater has been on the regulation of watercourses. Attention is only beginning to be given to the interconnectedness of freshwater, habitats and ecosystems. This chapter explores and analyses the context, structure and substantive rules for the couservation and managemet of freshwater, habitats and ecosystems across the complex range of multilateral environmental agreements.

Cross-border insolvency

Panellist commentary on delivered conference papers on the topic of Cross-border Insolvency.