The role of legislative, executive and judicial mechanisms in ensuring a fair and effective asylum process

A good faith reading of core international protection obligations requires that states employ appropriate legislative, administrative and judicial mechanisms to ensure the enjoyment of a fair and effective asylum process. Restrictive asylum policies instead seek to ‘denationalize’ the asylum process by eroding access to national statutory, judicial and executive safeguards that ensure a full and fair hearing of an asylum claim. From a broader perspective, the argument in this thesis recognizes hat international human rights depend on domestic institutions for their effective implementation, and that a rights-based international legal order requires that power is limited, whether that power is expressed as an instance of the sovereign right of states in international law or as the authority of governments under domestic constitutions.

Access to protection for 'Offshore Entry Persons' aka asylum seekers

In 2001, amendments to the Migration Act 1958 (Cth) made possible the offshore processing of protection claims. The same amendments also foreshadowed the processing of claims by ‘offshore entry persons’ in Australia according to non-statutory procedures. After disbanding offshore processing the then Rudd Labor Government commenced processing of protection claims by ‘offshore entry persons’ in Australia under the Refugee Status Assessment process (RSA). The RSA process sought to substitute well established legislative criteria for the grant of a protection visa, as interpreted by the courts, with administrative guidelines and decision-making immune from judicial review. This approach was rejected by the High Court in the cases M61 and M69. This article analyses these developments in light of Australia’s international protection obligations, as well as considering the practical obstacles that continue to confront offshore entry persons as they pursue judicial review of adverse refugee status determinations after the High Court’s decision.

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?