Indigenous peoples, self-determination and international law

The article examines the re-emergence of indigenous rights in contemporary international law in the context of worldwide agitation by indigenous peoples for the adoption by the United Nations of a Declaration on the Rights of Indigenous Peoples. Two approaches to the protection of indigenous rights are considered: a minimal one that relies on existing human rights conventions, and an inspirational one that seeks a Declaration negotiated in partnership with states willing to recognise indigenous autonomy. Attention is given to judicial recognition of the right to self-determination as a right of free choice, and to the distinction between minority rights and indigenous autonomy. The importance of defining indigenous self-determination in a positive way is emphasised, and prospects for a new UN permanent indigenous forum overcoming the stalemate about indigenous rights are reviewed in terms of the need for greater dialogue.

Laboratory model studies of flushing of trapped salt water from a blocked tidal estuary

Results are presented from a series of laboratory model studies of the flushing of saline water from a partially- or fully-closed estuary. Experiments have been carried out to determine quantitatively the response of the trapped saline volume to fresh water flushing discharges Q for different values of the estuary bed slope α and the density difference (∆ρ)_o between the saline and fresh water. The trapped saline water forms a wedge within the estuary and for maintained steady discharges, flow visualisation and density profile data confirm that its response to the imposition of the freshwater purging flow occurs in two stages, namely (i) an initial phase characterised by intense shear-induced mixing at the nose of the wedge and (ii) a relatively quiescent second phase where the mixing is significantly reduced and the wedge is forced relatively slowly down and along the bed slope. Scalings based upon simple energy balance considerations are shown to be successful in (i) describing the time-dependent wedge behaviour and (ii) quantifying the proportion of input kinetic energy converted into increasing the potential energy of the wedge/river system. Measurements show that the asymptotic value of the energy conversion factor increases with increasing value of the river Froude number Fr_o at small values of Fr_o, thereafter reaching a maximum value and a gradual decrease at the highest values of Fr_o. Dimensional analysis considerations indicate that the normalised, time-dependent wedge position (x_w)³(g')o/q² can be represented empirically by a power-law relationship of the form (x_w)[(g')_o/q²]^1/3 =C [(t)[(g')_o²/q]^1/3]"where the proportionality coefficient C is a function of both Fr_o and the slope angle α and the exponent n has a value of 0.24. Successful attempts are made to relate the model data to existing field observations from a microtidal estuary.

Experiments with multiple, intermittent periodic flushing flows confirm the importance of the starting phase of each flushing event for the time dependent behaviour of the saline wedge after reaching equilibrium in the intervals between such events. For the parameter ranges investigated and for otherwise-identical external conditions, no significant differences are found in the position of the wedge between cases of sequential multiple flushing flows and steady single discharges of the same total duration.

The War in Iraq: the illusion of international law? Where to now?

Examines the legality of the U.S.-led invasion in Iraq. Relevance of the international law framework; Advantages and danger of humanitarian intervention principle; Implications of the war for the future of international law.

Sources of doubt, sources of duty: HLA Hart on international law

In many ways HLA Hart’s critical analysis of the concept of law, with its repudiation of simple command theories of legal obligation, is at the same time a critique of the notion of state sovereignty. It is therefore an adumbration, if no more, of a radical reconceptualisation of international law, one which redefines the distinction between municipal and in-ternational jurisdiction. This paper is an exploration of what Hart could or ‘should’ have said about international law, based as much as possible on what he did say about international law and law in general. After some introductory comments it outlines Hart’s general analysis of law, with particular reference to the relevance for our understanding of international law.

International human rights law: all show, no go

This article examines the following issues: (i) If international human rights  instruments are so worthwhile, why are much of the world’s people still living in conditions of destitution? and (ii) what can be done to make international law the best it can be at improving the living standards of the human species?

Good global governance : custom, the cosmopolitan and international law

International law has both less and more to offer to the cosmopolitan project than one might think. As currently understood, international law presages a global system of obligations comprising the convergent systems of universal customary international laws and near-universal conventional instruments (treaties), both of which legal forms are characterised by natural law tendencies. From the point of view of a pluralistic cosmopolitanism, this is a dead end. Thinking beyond these formulae requires that international law be treated as a species of general law rather than state-centred law.

Tolling for the luckless, the abandoned and forsaked : therapeutic jurisprudence and international human rights law as applied to prisoners and detainees by forensic psychologists

Objectives. There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing the extent to which the legal system serves therapeutic or anti-therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. The paper aims to provide an intersection between human rights, therapeutic jurisprudence, and forensic psychology.

Method. Human rights are based on legal, social, and moral rules. Human rights literature generally considers legal rights but such policy statements do not provide principles to guide forensic psychologists in addressing moral or social rights. Therefore, a framework to guide forensic psychologists is required.

Conclusion. As duty-bearers, forensic psychologists need to address the core values of freedom and well-being in rights holders (in this instance, prisoners and detainees with a mental illness). The paper proposes that human rights principles can add to the normative base of a therapeutic jurisprudence framework, and in-turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights.

The problematic relationship between customary international law and the domestic courts

The relationship between international law and domestic law has long been problematic. This article considers in particular the enforcement of customary international law through an analysis of judicial practice in England and Australia. The examination of the jurisprudence suggests that domestic judges often feel uncomfortable when asked to apply international law in the domestic courts and struggle to somehow justify its use. This has led to an inconsistency in judicial practice in the application of international law in jurisdictions such as Australia. However, ultimately the monist theory that recognizes that customary international law automatically flows into the domestic law appears to be reflected in an emerging trend in judicial practice in the common law judicial systems under consideration. However, the article suggests that the English courts now see international crimes as an exception to that theory and require domestic legislative transformation. Ultimately the article concludes that the municipal courts provide an important forum for the enforceability of customary international law, including human rights norms.

Drawing lines in the sea : the laws that govern traffic on the world’s oceans can be as difficult to shape as water

Since World War II, however, the term has increasingly referred to law enforcement operations, as a means to enforce trade sanctions, to prevent the movement of weapons of mass destruction (WMDs), and particularly in the Caribbean Sea, to prevent the smuggling of illicit drugs. Such ambiguity should allow flexibility when deciding whom should be targeted, as well as allowing states with veto powers in the UN Security Council, which may legitimately ship nuclear weapons and materials, to avoid being targeted as long as they do not export WMDs to rogue states or non-state groups or individuals.2 The ISPS Code was created under the auspices of the International Maritime Organization (IMO) and is part of the 1974 Safety of Life at Sea Convention (SOLAS) concerning the safety of merchant ships.