‘Victory in a Nuclear War? A Comparison of NATO and WTO War Aims and Strategies’

Given the danger of the unbearable catastrophe of nuclear war, NATO in the mid-1950s abandoned any war aim of achieving victory in an all-out war with the Soviet Union or the Warsaw Treaty Organisation. Instead, it adopted the war aim of a cease-fire or war termination. By contrast, the WTO clung on to the war aim of victory - expressed even in terms of the survival of slightly more Soviet citizens than NATO citizens, after unprecedented losses of life in nuclear exchanges - until the mid-1980s when under Gorbachev the concept of victory in nuclear war was abandoned.

EU membership of the WTO: international trade disputes and judicial protection of individuals by EU Courts

The European Union (EU) is embedded in a pluralistic legal context because of the EU and its Member States’ treaty memberships and domestic laws. Where EU conduct has implications for both the EU’s international trade relations and the legal position of individual traders, it possibly affects EU and its Member States’ obligations under the law of the World Trade Organization (WTO law) as well as the Union’s own multi-layered constitutional legal order. The present paper analyses the way in which the European Court of Justice (ECJ) accommodates WTO and EU law in the context of international trade disputes triggered by the EU. Given the ECJ’s denial of direct effect of WTO law in principle, the paper focuses on the protection of rights and remedies conferred by EU law. It assesses the implications of the WTO Dispute Settlement Understanding (DSU) – which tolerates the acceptance of retaliatory measures constraining traders’ activities in sectors different from those subject to the original trade dispute (Bananas and Hormones cases) – for the protection of ‘retaliation victims’. The paper concludes that governmental discretion conferred by WTO law has not affected the applicability of EU constitutional law but possibly shapes the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest.

The international law implications of the Turkish/Kurdish conflict

This article considers the threaties and customs governing armed conflict in the context of the long standing insurgency in southeast Turkey. The first part of the article analyzes the existing treaty and customary law concerning the threshold of an armed conflict and concludes that the insurgency in Southeast Turkey existing since 1984 rises to the level of an armed conflict based on criteria identified both in treaty and customary international law. The next consideration is the classification of this conflict and this part concludes that this situation is a non-international armed conflict due to lack of involvement of forces of another country. Finally, this article considers international humanitarian law applicable to this non-international armed conflict and reveals that as a result of the monumental International Committee of the Red Cross customary humanitarian law study, particularly with respect to the law of targeting, that the rules applicable to international and non-international armed conflict have never been closer.

The Copenhagen principles on the handling of detainees: implications for the procedural regulation of internment

The Copenhagen Principles on the Handling of Detainees in International Military Operations were released in October 2012 after a five-year long process involving states and certain organizations. The Principles address a number of issues concerning the handling and transfer of detainees. They apply in military operations conducted by states abroad in the context of non-international armed conflicts and peace operations. This article focuses on those principles that address the procedural regulation of internment (ie preventive, security detention), as it is here that the current law is particularly unclear. On the one hand, the treaty provisions applicable in non-international armed conflicts contain no rules on the procedural regulation of internment, in comparison with the law of international armed conflict. On the other hand, the relevant rules under international human rights law (IHRL) appear derogable in such situations. This article demonstrates that the approach taken to this issue in the Copenhagen Principles is one which essentially draws on the procedural rules applicable to civilian internment in the international armed conflicts. These rules adopt standards that are lower than those under IHRL. Reference is then made to other recent practice, which illustrates that the Copenhagen Principles do not apply in a legal vacuum. In particular, two recent judicial developments highlight the continued relevance of human rights law and domestic law, respectively, in regulating detention operations in the context of international military operations. Compliance with the Copenhagen Principles may not, therefore, be sufficient for detention to be lawful.

Conflicts of law and the mutual recognition of same-sex unions in the EU

My thesis uses legal arguments to demonstrate a requirement for recognition of same-sex marriages and registered partnerships between EU Member States. I draw on the US experience, where arguments for recognition of marriages void in some states previously arose in relation to interracial marriages. I show how there the issue of recognition today depends on conflicts of law and its interface with US constitutional freedoms against discrimination. I introduce the themes of the importance of domicile, the role of the public policy exception, vested rights, and relevant US constitutional freedoms. Recognition in the EU also depends on managing the tension between private international law and freedoms guaranteed by higher norms, in this case the EU Treaties and the European Convention on Human Rights. I set out the inconsistencies between various private international law systems and the problems this creates. Other difficulties are caused by the use of nationality as a connecting factor to determine personal capacity, and the overuse of the public policy exception. I argue that EU Law can constrain the use of conflicts law or public policy by any Member State where these are used to deny effect to same-sex unions validly formed elsewhere. I address the fact that family law falls only partly within Union competence, that existing EU Directives have had limited success at achieving full equality and that powers to implement new measures have not been used to their full potential. However, Treaty provisions outlawing discrimination on grounds of nationality can be interpreted so as to require recognition in many cases. Treaty citizenship rights can also be interpreted favourably to mandate recognition, once private international law is itself recognised as an obstacle to free movement. Finally, evolving interpretations of the European Convention on Human Rights may also support claims for cross-border recognition of existing relationships.

The status of child offenders under international criminal justice: lessons from Sierra Leone

This article analyses the status of child offenders under international criminal justice. International criminal proceedings, especially those in the African continent, have recently highlighted the significance of children and young people as perpetrators of genocide, crimes against humanity and war crimes. It has been suggested by one commentator that there exist international prohibitions on the prosecution of children for international crimes. It will be argued here that this claim is not substantiated in respect either of customary or treaty-based international obligations.

The TRIPS agreement and developing countries: a discussion of the paragraph 6 of the Doha declaration on public health

The Paragraph 6 solution arrived on 30th August 2003 to facilitate export of drugs to the countries which were not able to manufacture said drugs shows the total marginalization of developing countries in international treaty negotiations. A simple proposal by developing counties to use Article 30 of the TRIPS Agreement for such manufacture and export to non-manufacturing countries in order to avoid expensive litigations with the pharmaceutical multinationals took an ugly turn where not only the said proposal was totally rejected but export was added as one of the patenting rights in the TRIPS Agreement with payment of remuneration to patent holders. This introduction of export as one of the patenting rights was surrounded by a thicket of rules on the plea that such products would be diverted to ensure that the needing countries never acquire the requisite drugs. This article analyses the events leading to the establishment of the TRIPS Agreement, the elimination of developing countries from such negotiations through the use of suitably placed officials in the negotiating forums, the role of CEOs of the multinationals and the business NGOs such as International Intellectual Property Alliance and IPC (Intellectual Property Committee), epistemic community consisting of individuals such as Jacques Gorlin and Eric Smith and the subsequent development leading to the finalization of Para 6 Solution, which was an exact replication of events during the TRIPS negotiations. The analysis suggests that developing countries do not have any say in international negotiations and their agreements to such negotiations are essentially to legitimize their colonized existence.

Treaties as tools of foreign policy : a psychopolitical inquiry via Keatings's vision for Australia

Paul Keating will be remembered by some Australians as a visionary. As Prime Minister he outlined the structure of external and domestic reform that he believed would guarantee global security for all Australians. Driving these reforms, more often than not, were interstate agreements, often in the form of multilateral treaties, sometimes in the guise of bilateral compromise, rarely as unilateral declarations. In areas as diverse as collaborative scientific research or the protection of children in the workplace, the Keating Executive set out, through codification, to transform Australia’s political landscape. The fields of trade, military, environmental and human rights were all included in the attempts by Keating to forge a new image of and for Australia in the Asia Pacific region. Treaties were vital agents of change in this milieu in the bid to reformulate regional perceptions of Australia. The path of inquiry in this thesis stemmed from a quest to examine the origin, role, purpose and efficacy of treaties in the Keating Government’s foreign policy aimed at regional military security. In order to make this examination it develops a polyphonic1 analytical model whose purpose is to explore the psychopolitical underpinnings of these agreements. Thus the thesis has a two fold task. To develop an analytical model of how treaties work as tools of foreign policy and to outline and assess the Keating treaty strategy. Its principal contribution is on the theoretical side.

Nuclear rivalry in South Asia : an examination of post Cold War nuclear arms control initiatives

South Asia has emerged in the post-Cold War era as a region where ongoing nuclear rivalry has the potential to result in a nuclear exchange between India and Pakistan. The United States, together with the global community, is devoting considerable effort to prevent the further development and deployment of nuclear weapons by India and Pakistan. This thesis analyses the underlying reasons for the ongoing nuclear rivalry between India and Pakistan, details post-Cold War initiatives to end the nuclear rivalry and examines the prospect of United States efforts to cap, reduce and eventually eliminate the nuclear arsenals of India and Pakistan. The thesis finds that historical factors form the basis of the continuing hostility and animosity between the two nations. The two nations have been bitter rivals since the time of partition in 1947 and the disputed territory of Kashmir continues to be the manifestation of deep seated antagonism and hostility. Pakistan's geography leaves it extremely vulnerable to conventional Indian attack and possession of nuclear weapons is seen as a means to redress the imbalance. Strong domestic support together with fervent nationalism and international prestige will continue to drive the nuclear programs of each nation. This thesis concludes that the nuclear rivalry between India and Pakistan is regional in nature and the end of the Cold War has done little to improve the prospects for nuclear disarmament in the region. United States led efforts have failed to persuade India or Pakistan to either accede to the Non-Proliferation Treaty (NPT) or dismantle their nuclear weapons. The thesis also notes that the United States has failed to take account of China as a significant regional power and it's impact on the nuclear programs of India and Pakistan. A fresh approach (to include China) with more emphasis on regional dialogue is suggested as a first step to ending the nuclear rivalry.

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.

The need for treaty-based e-consumer protections in global B2C e-commerce

The thesis puts forward historical, logical and efficiency arguments for the implementation of treaty-based legal protections for e-consumers transacting in global Business to Customer (B2C) e-commerce. It concludes, however, that the international political climate is such that the implementation by the international community of such protections is very unlikely in the near future.

The compliance of Australian preventative detention law with article 9(1) ICCPR

This thesis found that a provision of Australia's counter-terrorism policy, preventative detention, does not comply with a major international treaty, the ICCPR. This thesis provides an alternative model by which the Australian Government could achieve the legitimate purposes of preventative detention within the existing constraints of the Australian criminal law.

Australia and the nuclear non-proliferation treaty, 1945–1974

This volume in the Documents on Australian Foreign Policy series draws on unpublished records from the National Archives of Australia to document the negotiation of the Nuclear Non-Proliferation Treaty (NPT) from an Australian perspective. Commencing with early post-war efforts to control nuclear energy following the dropping of atomic bombs on Hiroshima and Nagasaki, the volumes traces Australia’s changing attitude to the issue of nuclear arms control and disarmament during the Cold War years of the 1950s and 1960s and its ambiguous approach to the acquisition of nuclear weapons in the subsequent negotiation of the NPT. Signed by the Gorton government in 1970 after considerable debate in the policymaking community in Canberra, the treaty was ratified by the Whitlam government in 1973 and has since formed a fundamental plank in Australian attitudes and policies towards international efforts to reduce and eventually eliminate nuclear weapons.

Implementing an international health treaty in small Pacific Island nations

Erik Martin explored the implementation of an international tobacco control policy in the Pacific Island nations of the Cook Islands, Nauru, Palau and Vanuatu. This qualitative study explored how tobacco control policies are influenced and provided recommendations on how to advance tobacco control policy to benefit population health.

Harmonisation and the United Nations Convention on Contracts for the International Sale of Goods

After many years of negotiation, the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) came into force in 1988. Today, 62 states have adopted the CISG. Together these countries account for over two-thirds of all world trade.2 On this basis alone, the CISG is an outstanding success in the legal harmonisation of the law governing the international sale of goods. However, the CISG has its critics and much comment has been made on the failure of the CISG to achieve its goal of promoting international trade through a body of uniform rules.The primary motivation driving the push for a harmonised law on the international sale of goods is economic: a harmonised law makes it easier and more efficient for the business person to sell and buy goods across state borders. However, the engine driving the push for harmonisation is political and cultural; and the task of creating the harmonised law belongs to the diplomat.3 A study of the CISG demonstrates that the political and cultural demands on the diplomat also act as shackles that restrain the achievement of a harmonised law.This paper will consider the CISG and discuss the constraints on treaty making as a mechanism for legal harmonisation. Part one discusses the constraints faced when creating a uniform text.Part two discusses the problems with the text of the CISG that result from the negotiation process. Finally, part three discusses the constraints faced in maintaining the uniformity of the CISG.