Private lawyers in contemporary society : Australia

Admission to practice law in Australia falls under the general supervisory power of supreme court judges in the various jurisdictions. The degree of supervision varies among jurisdictions, but the judiciary generally is responsible for setting the educational requirements for admission. A variety of admission boards perform a number of administrative and supervisory functions; for example, determining whether a particular law school's degree satisfies educational requirements for admission...

Addressing vulnerability and human rights in disaster response mechanisms in Oceania

The Oceania region is an area particularly prone to natural disasters such as cyclones, tsunamis, floods, droughts, earthquakes and volcanic eruptions. Many of the nations in the region are Small Island Developing States (SIDS), yet even within wealthy states such as Australia and New Zealand there are groups which are vulnerable to disaster. Vulnerability to natural disaster can be understood in human rights terms, as natural disasters threaten the enjoyment of a number of rights which are guaranteed under international law, including rights to health, housing, food, water and even the right to life itself. The impacts of climate change threaten to exacerbate these vulnerabilities, yet, despite the foreseeability of further natural disasters as a result of climate change, there currently exists no comprehensive international framework for disaster response offering practical and/or legally reliable mechanisms to assist at‐risk states and communities. This paper sets out to explore the human rights issues presented by natural disasters and examine the extent to which these issues can be addressed by disaster response frameworks at the international, regional and national levels.

Legal activism for ensuring environmental justice

This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect of constituting a basis for standing for the activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

Democracy and participation in Singapore : a case study

A typical characteristic of the ongoing practice of democracy in Singapore has been described by some scholars as 'illiberal democracy'. Noting that Singapore 's brand of democracy operates within a 'dominant, one-party system', other scholars cushioned such a democratic practice by their reference to 'semi-democracy', 'controlled democracy, 'guided democracy, and 'communitarian democracy'. However, despite the demonstration that there are many restrictions in the type of democracy that exists in Singapore, the benefits are numerous. Singapore is the only country in the world to have transformed itself from a developing country to a developed country in less than only forty years. But its slower move towards a culture ofparticipation must move as quickly as globalization does if it is to remain in relevant and legitimate democracy. If the younger generation understands that they should have the right to a voice before the government acknowledges it, the transition could be more tumultuous than necessary.

Prosecution of maritime terrorists : the role of national courts in ensuring accountability

Maritime security has emerged as a critical legal and political issue in the contemporary world. Terrorism in the maritime domain is a major maritime security issue. Ten out of the 44 major terrorist groups of the world, as identified in the US Department of State’s Country Reports on Terrorism, have maritime terrorism capabilities. Prosecution of maritime terrorists is a politically and legally difficult issue, which may create conflicts of jurisdiction. Prosecution of alleged maritime terrorists is carried out by national courts. There is no international judicial institution for the prosecution of maritime terrorists. International law has therefore anticipated a vital role for national courts in this respect. The international legal framework for combating maritime terrorism has been elaborately examined in existing literature therefore this paper will only highlight the issues regarding the prosecution of maritime terrorists. This paper argues that despite having comprehensive intentional legal framework for the prosecution of maritime terrorists there is still some scopes for conflicts of jurisdiction particularly where two or more States are interested to prosecute the same offender. This existing legal problem has been further aggravated in the post September 11 era. Due to the political and security implications, States may show reluctance in ensuring the international law safeguards of alleged perpetrators in the arrest, detention and prosecution process. Nevertheless, international law has established a comprehensive system for the prosecution of maritime terrorists where national courts is the main forum of ensuring the international law safeguards of alleged perpetrators as well as ensuring the effective prosecution of maritime terrorists thereby playing an instrumental role in establishing a rule based system for combating maritime terrorism. Using two case studies, this paper shows that the role of national courts has become more important in the present era because there may be some situations where no State is interested to initiate proceedings in international forums for vindicating rights of an alleged offender even if there is a clear evidence of violation of international human rights law in the arrest, detention and prosecution process. This paper presents that despite some bottlenecks national courts are actively playing this critical role. Overall, this paper highlights the instrumental role of national courts in the international legal order.

Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

Introduction

This book explores the impacts of global economic, political and cultural shifts on various international legal frameworks and legal norms. The economic growth of states throughout Asia, South and Central America and Africa is having a profound effect on the dynamics of international relations, with a resulting impact on the operation and development of international law. This book examines the influence of emerging economies on international legal rules, institutions and processes. It describes recent and predicted changes in economic, political and cultural powers, flowing from the growth of emerging economies such as China, India, Brazil, South Africa and Russia, and analyses the influence of these changes on various legal frameworks and norms. Expert contributors drawn from a variety of fields, including international law, politics, environmental law, human rights, economics and finance, provide a broad analysis of the nature of the shifting global dynamic in its historical and contemporary contexts, and a range of perspectives on the impact of these changes as they relate to specific regimes and issues, including climate change regulation, collective security, indigenous rights, the rights of women and girls, environmental protection and foreign aid and development. The book provides a fresh and comprehensive analysis of an issue with extensive implications for international law and politics.

Dreams and nightmares of alternative powers' futures

This chapter argues the importance of the role and nature of other powers to world order. The author suggests that, if the US are not prepared to take a lead in creating a rules-based legal order, they should and can do so – and it is in their interests to do so. America should be a natural leader in this process, taking part in a global dialogue just as they did in the transatlantic dialogue during the late eighteenth century.

Shifting global power and shifting state power

The adoption of the Declaration on the Rights of Indigenous Peoples (DRIP) by the United Nations General Assembly in September 2007 has been heralded by many as a major breakthrough in the promotion of Indigenous rights under international law. Many however are sceptical as to whether DRIP actually promotes Indigenous rights or rather limits them in ways that serve the interests of nation states thereby diminishing the universality of human rights with respect to Indigenous peoples. This paper will examine how shifts in global power from the United States to the BRIC nations (Brazil, Russia, India and China) are likely to impact on the realisation of the right of self determination for Indigenous peoples. It will start by outlining the right of self determination as articulated in the Declaration, and in particular how the United States and its allies - the CANZUS group (Canada, Australia, New Zealand and United States) - were influential in shaping its form and content. The paper will then assess the extent to which the right to self determination is realised in Australia, the United States and the BRJC nations to provide an indication of the likely future direction of recognition and realisation of Indigenous rights at a global level.

Flag state responsibility for maritime terrorism

Modern international shipping is largely a flag state-based system. Only the flag state has complete authority over the vessels that fly its flag, and as a result, other states’ jurisdiction over these vessels is very limited. Against this backdrop, this article examines the flag state’s responsibility for maritime terrorism, a major security issue and vulnerability in the global supply chain. It is not an exaggeration that the global community’s repeated statements regarding the illegality of terrorism have created a customary international law obligation for states to take all possible steps for the prevention of terrorism. This article argues that providing flags to suspicious entities in an obscure registration system is not compatible with this obligation.

State responsibility for maritime terrorism

Maritime terrorism is one of the main maritime security issues in the contemporary world. The threat of maritime terrorism is more apparent than ever in the post-September 11 era. Although maritime terrorism is an old issue, the disastrous events of 11 September 2001 brought this issue again onto the global agenda. This incident brought to the forefront the longstanding concerns that terrorists could severely disrupt the global maritime supply chain by using shipping containers or vessels to attack major business centres, port facilities and offshore installations. A number of international criminal law studies have been conducted to identify international legal challenges in maritime security. Some of these works have critically examined the international legal framework for maritime security and identified the lacunas in the existing system. Some of these writings have also identified that emerging maritime terrorism issues are prompting States to introduce some stringent measures. Although the international legal regime related to maritime terrorism is a well-researched area, very little research work has explored the legal issues related to State responsibility for maritime terrorism. This article argues that, although the United Nations Convention on the Law of the Sea (UNCLOS) provisions related to maritime piracy may not be applicable for some dimensions of maritime violence, different provisions of UNCLOS may relevant in identifying State responsibility for maritime terrorism.

Climate change and IMO technical and operational measures for reduction of emissions of greenhouse gas from ships

According to a study conducted by the International Maritime organisation (IMO) shipping sector is responsible for 3.3% of the global Greenhouse Gas (GHG) emissions. The 1997 Kyoto Protocol calls upon states to pursue limitation or reduction of emissions of GHG from marine bunker fuels working through the IMO. In 2011, 14 years after the adoption of the Kyoto Protocol, the Marine Environment Protection Committee (MEPC) of the IMO has adopted mandatory energy efficiency measures for international shipping which can be treated as the first ever mandatory global GHG reduction instrument for an international industry. The MEPC approved an amendment of Annex VI of the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) to introduce a mandatory Energy Efficiency Design Index (EEDI) for new ships and the Ship Energy Efficiency Management Plan (SEEMP) for all ships. Considering the growth projections of human population and world trade the technical and operational measures may not be able to reduce the amount of GHG emissions from international shipping in a satisfactory level. Therefore, the IMO is considering to introduce market-based mechanisms that may serve two purposes including providing a fiscal incentive for the maritime industry to invest in more energy efficient manner and off-setting of growing ship emissions. Some leading developing countries already voiced their serious reservations on the newly adopted IMO regulations stating that by imposing the same obligation on all countries, irrespective of their economic status, this amendment has rejected the Principle of Common but Differentiated Responsibility (the CBDR Principle), which has always been the cornerstone of international climate change law discourses. They also claimed that negotiation for a market based mechanism should not be continued without a clear commitment from the developed counters for promotion of technical co-operation and transfer of technology relating to the improvement of energy efficiency of ships. Against this backdrop, this article explores the challenges for the developing counters in the implementation of already adopted technical and operational measures.

IMO technical and operational measures for reduction of emissions of greenhouse gas from ships : perspectives of Asian countries

International shipping is responsible for about 2.7% of the global emissions of CO2. In the absence of proper action, emissions from the maritime sector may grow by 150% to 250% by 2050, in comparison with the level of emissions in 2007. Against this backdrop, the International Maritime Organisation has introduced a mandatory Energy Efficiency Design Index (EEDI) for new ships and the Ship Energy Efficiency Management Plan (SEEMP) for all ships. Some Asian countries have voiced serious reservations about the newly adopted IMO regulations. They have suggested that imposing the same obligations on all countries, irrespective of their economic status, is a serious departure from the Principle of Common but Differentiated Responsibility, which has always been the cornerstone of international climate change law discourse. Against this backdrop, this article presents a brief overview of the technical and operational measures from the perspective of Asian countries.

Designing REDD+ to be just : considerations for a legally binding instrument

The international climate regime is in the process of negotiating a legally binding instrument concerning Reducing Emissions from Deforestation and Degradation (REDD+). The paper starts by exploring the complex web of decisions and advices that currently regulate REDD+ initiatives within the international climate regime. This is followed by an analysis of justice issues raised by non-state actors in the REDD+ international negotiations. The paper concludes by building on this analysis to identify some relevant considerations when seeking to design a just and legally binding REDD+ instrument. These considerations include: the impact of market- versus fund-based investment channels, the importance of defining a clear objective; the inclusion and role of international principles such as sovereignty, preventative action, common but differentiated responsibility, sustainable development, and Free, Prior, and Informed Consent; the appropriate design of REDD+ safeguards and the inclusion of grievance mechanisms within the instrument which provide guidance on resolving disputes associated with REDD+ investment.

Shifting Powers : Protection of Refugees and Displaced Persons in the Asia Pacific Region

The United Nations High Commissioner for Refugees' (UNHCR) 2011 statistics on refugee populations residing by region are a stark reminder of the challenge facing states and civil society in the Asia Pacific. In 2011, Africa hosted 2,149,000 refugees; the Americas, Europe, and Middle East and North Africa hosted 513 ,500, 1,605,500 and 1,889,900 respectively, while the Asia Pacific hosted a staggering 3,793,900. The fact that 35 per cent of the world's refugees reside in the Asia Pacific, coupled with the fact that 84 per cent of refugees displaced in Asia remain in the region,raises the questions why so few countries in the region are signatories to the Convention relating to the Status of Refugees ('Refugee Convention') or cognate rights instruments and why no formally binding regional agreement exists for the equitable sharing of responsibilities for refugees...