The BRICS and the responsibility to protect : lessons from the Libyan and Syrian crises

The emerging ‘responsibility to protect’ (R2P) principle presents a significant challenge to the BRICS (Brazil, Russia, India, China and South Africa) states’ traditional emphasis on a strict Westphalian understanding of state sovereignty and non-interference in domestic affairs. Despite formally endorsing R2P at the 2005 World Summit, each of the BRICS has, to varying degrees, retained misgivings about coercive measures under the doctrine’s third pillar. This paper examines how these rising powers engaged with R2P during the 2011–2012 Libyan and Syrian civilian protection crises. The central finding is that although all five states expressed similar concerns over NATO’s military campaign in Libya, they have been unable to maintain a common BRICS position on R2P in Syria. Instead, the BRICS have splintered into two sub-groups. The first, consisting of Russia and China, remains steadfastly opposed to any coercive measures against Syria. The second, comprising the democratic IBSA states (India, Brazil and South Africa) has displayed softer, more flexible stances towards proposed civilian protection measures in Syria, although these three states also remain cautious about the implementation of R2P’s coercive dimension. This paper identifies a number of factors which help to explain this split, arguing that the failure to maintain a cohesive BRICS position on R2P is unsurprising given the many internal differences and diverging national interests between the BRICS members. Overall, the BRICS’ ongoing resistance to intervention is unlikely to disappear quickly, indicating that further attempts to operationalize R2P’s third pillar may prove difficult.

The responsibility to protect and the Arab Spring : Libya as the exception, Syria as the norm?

On March 17 2011 the UN Security Council passed resolution 1973 authorising the use of force for civilian protection purposes in Libya.1 This resolution was hailed by many supporters of the responsibility to protect (R2P) as a crucial step towards the consolidation of the concept’s normative standing.2 Gareth Evans described the intervention as ‘a textbook case of the R2P norm working exactly as it was supposed to’.3 For Lloyd Axworthy the Libya episode signalled a move towards a ‘more humane world’.4 UN Secretary-General Ban Ki-Moon declared that it ‘affirms, clearly and unequivocally, the international community’s determination to fulfil its responsibility to protect civilians from violence perpetrated by their own government.’5 At first glance, the Security Council’s rapid, decisive response to escalating violence in Libya might well have suggested a new willingness on the part of the international community to take collective action to avert intra-state humanitarian crises. However, a closer examination of the text of resolution 1973 and statements by Security Council member states reveals a less than complete endorsement of R2P. Disagreements between states over the scope of the mandate for the use of force in Libya quickly emerged. Long-standing fears among Russia, China and other non-Western states that R2P could be used as a pretext for regime change returned to the fore as the legality and legitimacy of NATO’s military action were called into question. This post-Libya backlash against R2P has been a central factor in the international community’s subsequent inability to agree on effective civilian protection measures in Syria. Much of the optimism that surrounded R2P in the immediate aftermath of resolution 1973 has given way to a sober realization that achieving international consensus on civilian protection measures will rarely be straightforward.

The Rise of the BASIC Group Within the International Climate Regime : The Challenge of Ensuring Equitable Mitigation Obligations

The chapter examines the current emission reduction obligations within the climate regime. It looks at the formation and rise of the BASIC negotiation group within the international climate COP negotiations and examines the role that BASIC nations are now playing shaping international mitigation policy.

The international regulation of persons displaced by climate change

It is certain that there will be changes in environmental conditions across the globe as a result of climate change. Such changes will require the building of biological, human and infrastructure resilience. In some instances, the building of such resilience will be insufficient to deal with extreme changes in environmental conditions and legal frameworks will be required to provide recognition and support for people relocating as a result of environmental change. International legal frameworks do not currently recognise or assist people displaced as a result of environmental factors. The objective of this chapter is to examine the areas of international law relevant to displacement arising from environmental factors, consider some of the proposed climate displacement instruments and suggest the most suitable international institution to host a program addressing climate displacement. In order to determine the most appropriate institution to address and regulate climate displacement, it is imperative to consider issues of governance. This paper seeks to examine this issue and determine whether it is preferable to place climate displacement programs into existing international legal frameworks, or whether it is necessary to regulate this area in an entirely new institution specifically designed to deal with the complex and cross-cutting issues surrounding the topic...

Litigating law of the sea disputes using the UNCLOS Dispute Settlement System

The interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS) may be the source of many disputes. UNCLOS introduced an à la carte menu for dispute settlement with a number of options for international dispute resolution, including a compulsory procedure entailing binding decisions. While drafting this ambitious and complex system of dispute settlement, the drafters had to negotiate many delicate compromises to secure a system for the uniform interpretation of the Convention. The aim of this paper r is to explore why litigation using the UNCLOS dispute settlement system is, or is not, a preferred mode of settlement for law of the sea disputes.

What further benefit, if any, might Australia get from the ALI-III Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases?

In 2006, the American Law Institute (ALI) and the International Insolvency Institute (III) established a Transnational Insolvency Project and appointed Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (Netherlands) as Joint Reporters. The objective was to investigate whether the essential provisions of the ALI Principles of Cooperation among the NAFTA Countries (ALI-NAFTA Principles) and the annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases (ALI-NAFTA Guidelines) may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. In 2012, Professor Fletcher and Professor Wessels presented the report Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“ALI-III Report”) to the Annual Meetings of the American Law Institute and the International Insolvency Institute. In 2013, the Australian Academy of Law (AAL) provided support to the authors to undertake research on the possible benefits for Australia of courts and insolvency administrators of referring to the ALI-III Report when addressing international insolvency cases. This AAL project was at the request of the Council of Chief Justices of Australia and New Zealand. This research Report compares the Global Principles for Cooperation in International Insolvency Cases with the Cross-border Insolvency Act 2008 and the UNCITRAL Model Law as it has been adopted and has force of law in Australia. Further, it examines the Global Guidelines for Court-to-Court Communications in International Insolvency Cases in light of Australian cross-border insolvency and procedural law. Finally, it makes brief reference to and commentary on the Global Rules on Conflict–of-Laws Matters in International Insolvency Cases annexed to the ALI-III Report from the perspective of Australian choice of law rules.

Is there an international duty to protect persons in the event of an epidemic?

In 2006, the International Law Commission began a study into the role of states and international organizations in protecting persons in the event of a disaster. Special Rapporteur Mr. Eduardo Valencia-Ospina was appointed to head the study, and in 2011 the findings of the study will be presented to the United Nations General Assembly. Of interest to this paper has been the inclusion of “epidemics” under the natural disaster category in all of the reports detailing the Commission’s program of work on the protection of persons. This paper seeks to examine the legal and political ramifications involved in including “epidemic” into the concept of protection by exploring where sovereign responsibility for epidemic control begins and ends, particularly in light of the revisions to the International Health Regulations by the World Health Assembly in 2005. The paper will first analyze the findings already presented by the Special Rapporteur, examining the existing “responsibilities” of both states and international organizations. Then, the paper will consider to what extent the concept of protection entails the duty to assist individuals when an affected state proves unwilling or unable to assist their own population in the event of a disease outbreak. In an attempt to answer this question, the third part of the paper will examine the recent cholera outbreak in Zimbabwe.

Vulnerability : an issue for law and policy in pandemic planning?

The 2009 H!Nl 'swine flu' pandemic was the first influenza pandemic of the twenty-first centmy. Unlike the first influenza pandemic of the twentieth century, the so-called 'Spanish flu' which killed millions of people worldwide, the 2009 pandemic was relatively mild. While the mildness of the 2009 pandemic meant that the 'Yorld was spared from the impact of a high-mortality event that would cause widespread social and economic disruption, the 2009 pandemic did provide an opportunity to road-test pandemic readiness. In other work we have assessed Australia's pandemic plans and emergency management legislation, finding that both provide flexible and adaptive forms of regulation that are capable of adapting to the scale and severity of a pandemic or other public health emergency. 1 In this chapter we consider whether pandemic planning adequately addresses the needs of vulnerable individuals and groups, both within countries and between them. Central to this is the question of whether vulnerability is itself a useful concept for both law and policy, and if so, the implications of expressly incorporating the concept of vulnerability into pandemic planning.

The BRICS and R2P : contestation, re-interpretation and norm entrepreneurship

The intra-state humanitarian crises in Libya and Syria have led to renewed debate over the content and implementation of pillar three of the responsibility to protect (R2P). This paper examines the BRICS’ (Brazil, Russia, India, China, South Africa) current perspectives on R2P and their recent efforts to shape the concept’s evolution. While Brazil’s “Responsibility while Protecting” (RwP) proposal has been widely discussed, the central focus here is on the lesser-known, semi-official Chinese idea of “Responsible Protection” (RP). Like RwP, RP proposes decision-making criteria and accountability mechanisms for UN-authorised military intervention under R2P’s third pillar. This paper argues that although RP draws heavily on previous R2P proposals such as the original 2001 ICISS report and Brazil’s RwP, by amalgamating and re-packaging these earlier ideas in a more restrictive form the Chinese initiative represents a new and distinctive interpretation of R2P. However, as it currently stands, some aspects of RP appear to be framed too strictly to provide workable guidelines for determining the permissibility of R2P military intervention, and would, therefore, benefit from clarification and refinement. Of broader significance, China’s RP and Brazil’s RwP initiatives point to the growing willingness of rising, non-Western powers to articulate and promote their own normative preferences on sovereignty, intervention and global governance. This development has potential implications both for R2P’s evolution and for the structure of the international system.

Proposed MBMs for reduction of greenhouse gas emissions from international shipping and the WTO rules

The international shipping sector is a major contributor to global greenhouse gas (GHG) emissions. The International Maritime Organisation (IMO) has adopted some technical and operational measures to reduce GHG emissions from international shipping. However, these measures may not be enough to reduce the amount of GHG emissions from international shipping to an acceptable level. Therefore, the IMO Member States are currently considering a number of proposals for the introduction of market-based measures (MBMs). During the negotiation process, some leading developing countries raised questions about the probable confl ict of the proposed MBMs with the rules of the World Trade Organisation (WTO). This article comprehensively examines this issue and argues that none of the MBM proposals currently under consideration by the IMO has any confl ict with the WTO rules.

Bridging the gap: Early warning, gender and the responsibility to protect

Women, Peace and Security (WPS) scholars and practitioners have expressed reservations about the Responsibility to Protect (R2P) principle because of its popular use as a synonym for armed humanitarian intervention. On the other hand, R2P’s early failure to engage with and advance WPS efforts such as United Nations Security Council (UNSC) resolution 1325 (2000) has seen the perpetuation of limited roles ascribed to women in implementing the R2P principle. As a result, there has been a knowledge and practice gap between the R2P and WPS agendas, despite the fact that their advocates share common goals in relation to the prevention of atrocities and protection of populations. In this article we propose to examine just one of the potential avenues for aligning the WPS agenda and R2P principle in a way that is beneficial to both and strengthens the pursuit of a shared goal – prevention. We argue that the development and inclusion of gender-specific indicators – particularly economic, social and political discriminatory practices against women – has the potential to improve the capacity of early warning frameworks to forecast future mass atrocities.

Prevention of Pollution of the Marine Environment from Vessels : The Potential and Limits of the International Maritime Organisation

--Critically discusses the role of International Maritime Organization (IMO) in the protection of the marine environment --Presents a clear, updated, concise and critical overview of the IMO marine environmental legal instruments --A fresh outlook on the north-south tensions in the IMO marine environmental discourses --Critically examines the principle of common but differentiated responsibilities in the context of IMO This book examines the role of The International Maritime Organization (IMO) in the prevention and control of pollution of the marine environment from vessels with a particular reference to the current north-south tensions regarding the strategy for combating climate change in the maritime sector as well as the prevention of marine pollution from the ship-breaking industry. The IMO, a United Nations specialized agency, has been entrusted with the duty to provide machinery for cooperation among governments for the prevention and control of pollution of the marine environment from vessels. The organization is responsible for drafting legal instruments as well as for facilitating technical cooperation for the protection of the marine environment. Although IMO legal instruments are mainly targeted at the prevention of pollution of the marine environment from vessels, there is a trend towards a liberal interpretation of this, and the organization has expanded its work to areas like shipbreaking, which is essentially a land-based industry.

An Australian perspective on the ALI-III global principles for cooperation in International insolvency cases

In 2012, Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (The Netherlands) presented a Report to the American Law Institute and the International Insolvency Institute entitled Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“Global Principles”). This followed their appointment as Joint Reporters to investigate whether the essential provisions of the American Law Institute Principles of Cooperation among the North American Free Trade Agreement Countries with their annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. This article comments on the Global Principles from the perspective of a jurisdiction which has adopted the UNCITRAL Model Law on Cross-border Insolvency (“Model Law”). In 2008, Australia enacted a standalone statute, the Cross-border Insolvency Act 2008 (Cth) to which is annexed the Model Law. In that process, it made minimal changes to the Model Law text. Against the background of the 2008 Act, related procedural laws as well as Australia’s general insolvency statutes and recent cross-border insolvency jurisprudence, this article comments on the potential relevance of the Transnational Insolvency Report as a point of reference for Australian courts and insolvency administrators when addressing international insolvency cases. By comparing the Global Principles with the Model Law as closely adopted in Australia, this analysis is a resource for other Model Law jurisdictions when considering the potential relevance of the Global Principles for their own international insolvency practice.