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.

Hollow avowals of human rights protection-time for an Australian federal bill of rights?

Unlike the constitutions of many nations, such as the United States of America and the Republic of South Africa, the constitutions of the Australian States and Territories and the Commonwealth Constitution Act 1901 (UK) contain no bill of rights. Australia is the only western democracy without a federal bill of rights. The debate regarding the need for a bill of rights necessitates an understanding of what human rights the people of Australia already enjoy. If sufficient protection can be found in existing sources, does Australia really need a federal bill of rights? Opponents of a bill of rights state that we have sufficient protection from arbitrary government intervention in our personal affairs and thus a bill of rights is unnecessary. There are a number of potential sources of human rights in Australia that might provide the suggested existing protection, including the common law, specific domestic legislation, international law and constitutional law. Each of these sources of human rights has, however, important limitations. The focus of this article is on the inadequacy of the Australian constitutions as a source of purported protection. This in turn suggests that an alternative source of rights is needed - a federal bill of rights? In the course of this analysis the author makes suggestions for reform; specifically how a federal bill of rights may address the paucity of constitutional protection.

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.

Taxation of branches of international banks : towards a multilateral tax treaty

Examines the taxation of branches of international banks under the OECD Model Tax Treaty. Argues that globalisation has made the current international tax system obsolete and suggests that a multilateral tax treaty system is a twenty-first century solution.

Traditional knowledge, traditional cultural expressions and intellectual property law in the Asia-Pacific region

Contents

* The international debate about traditional knowledge and approaches in the Asia-Pacific region / Christoph Antons
* How are the different views of traditional knowledge linked by international law and global governance? / Christopher Arup
* Protection of traditional knowledge by geographical indications / Michael Blakeney
* An analysis of WIPO's latest proposal and the Model Law 2002 of the Pacific Community for the Protection of Traditional Cultural Expressions / Silke von Lewinski
* The role of customary law and practice in the protection of traditional knowledge related to biological diversity / Brendan Tobin
* Can modern law safeguard archaic cultural expressions? : observations from a legal sociology perspective / Christoph Beat Graber
* Branding identity and copyrighting culture : orientations towards the customary in traditional knowledge discourse / Martin Chanock
* Being indigenous' in Indonesia and the Philippines / Gerard A. Persoon
* Indigenous heritage and the digital commons / Eric Kansa
* Traditional cultural expression and the internet world / Brian Fitzgerald and Susan Hedge
* Cultural property and "the public domain" : case studies from New Zealand and Australia / Susy Frankel and Megan Richardson
* The recognition of traditional knowledge under Australian biodiscovery regimes : why bother with intellectual property rights? / Natalie Stoianoff
* Protection of traditional knowledge in the SAARC region and India's efforts / S.K. Verma
* The protection of expressions of folklore in Sri Lanka / Indunil Abeyesekere
* Traditional medicine and intellectual property rights : a case study of the Indonesian jamu industry / Christoph Antons and Rosy Antons-Sutanto.

Multiplicity of International Courts and Tribunals

This work comprehensively explores the implications of multiplicty of international judicial bodies on the coherent application of public international law. It carried out an in-depth analysis of the underlying reasons for the multiplicity, a thorough discussion of the benefits and the challenges presented by this development, its theoretical dimensions and solutions suggested to mitigate the challenges. The work locates the root causes of these challenges in the normative and institutional expansions of international law without a corresponding coordination of the activities of the ¿proliferating¿ judicial bodies. The challanges are systemic in nature. Clearly, because of their systemic nature, the impacts of these challenges are not limited to the specific courts, cases and parties implicated, but have a ripple effect that reverberates throughout the system. Therefore, the mitigation of the impacts of these challenges is of a paramount importance for the credibility, predictability, legitimacy and overall integrity of the international legal system and the eventual augmentation of the ¿compliance pull¿ garnered as a result.

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.

The international legal status of the Vatican/Holy See complex

This article offers a re-examination of the international legal status of what is here termed the Vatican/Holy See complex (VHS), focusing on claims to statehood. The problematic ‘effect’ of Vatican City, of the Holy See, of the papacy and of associated entities is interrogated at the level of international law, entering as little as possible into administrative or theological distinctions. The various grounds cited as supporting status amounting to statehood are argued to be inadequate. The continuing exchange of representatives with states by the VHS is missionary and hierarchical in character and is reflective neither of the reciprocity of peers nor of customary obligation going to law. Agreements entered into by the papacy with the Kingdom of Italy (the Lateran Pacts) in 1929, relating to the status of the geographical territory known as Vatican City, cannot be determinative of international status. Nor can membership of international agreements and organizations confer a status amounting to statehood. Events and practices since 1929 have not substantially altered international status as of 1870. The Roman Catholic Church is but one of many faith-based international movements, and since the eclipse of the papal state nearly one-and-a-half centuries ago, the status in international law of its temporal headquarters in Rome should not be privileged.

International legal norms on the right to sexual orientation and gender identity: Australian reforms contextualised

At a time when the international momentum for sexual orientation and gender identity rights is strong it is important that scholars and activists remain vigilant to ensure that the discourses framing sexuality rights do not intentionally, or inadvertently, deepen incursions on the rights of individuals of sexual and bodily diversity. This chapter offers a critical examination of selected Australian case law and legal reform for the putative progress t offers sexual minorities. Identifying the entrenched binary determinism at the heart of the law, this chapter echoes the call of queer criminology, concluding that challenging invisibility is but part of the project. Queer scholars need also remain vigilant about the law’s constitutive power, and its role in producing sexual minorities as objects of pathology, perversion and criminality.

Competition and cooperation between international courts: a critical approach to the new paradigms of cross-border dispute resolution model

This article examines the arising cross-border dispute resolution models (Cooperation and Competition among national Courts) from a critical perspective. Although they have been conceived to surpass the ordinary solution of a Modern paradigm (exclusive jurisdiction, choice of court, lis pendens, forum non conveniens, among others), they are insufficient to deal with problems raised with present globalization, as they do not abandon aspects of that paradigm, namely, (i) statebased Law; and (ii) standardization of cultural issues.