November 2009 NEWSLETTER CENTRE FOR INTERNATIONAL AND PUBLIC LAW
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Note from the Director ...... 2 Welcome & other notices...... 3 CIPL’s Advisory Board...... 4 Reconciliation Action Plan...... 5 Events...... 7 Forthcoming Events...... 18 Australian Year Book of International Law . . . . . 19 Cambridge University Press (CUP) Series: Connecting International Law with Public Law. . . 21 Publications by Centre Members ...... 22 Presentations, Papers and other Activities . . . . . 24 Centre Staff & Members...... 32
ANU COLLEGE OF LAW Note from the Director
This year’s newsletter covers the period from the 2008 series (see further on page 21 of this newsletter) with the Public law weekend through to this year’s Public Law first book due out this November . Weekend . We are looking forward to seeing how the change The 2009 Australian and New Zealand Society of to a Thursday and Friday schedule of this major Centre International Law (ANZSIL) conference was successfully held for International and Public Law (CIPL) conference affects in Wellington, New Zealand and plans are already beginning the attendance . We appreciated the positive response we for the 2010 conference, which will be held in Canberra on received from one member thanking us for making the Thursday 24–Saturday 26 June, 2010, at University House . timing more family-friendly . I’d like to publicly thank Professor Campbell McLachlan I ended off last year’s note in this section by explaining from the University of Wellington for his stewardship as I would be on study leave for the first half of 2009, as a President of ANZSIL for the past two terms and congratulate Visiting Fellow at the Humanities Research Centre, here at Professor Andrew Byrnes (former acting Director of CIPL) The Australian National University (ANU), with the aim of now at the University of New South Wales (UNSW) who was completing the biography I am writing on Joan Montgomery, elected President of ANZSIL for this term . CIPL’s continuing AM OBE . While the biography is not yet complete, I did role hosting the ANZSIL secretariat is significant and manage to progress it considerably and I thank Professor ANZSIL’s new website housed through the ANU College of Don Rothwell who fulfilled the role of Acting Director for Law website is an important part of ANZSIL’s services to its that period with great effort and attention . membership . Indeed, Professor Rothwell introduced for 2009 a regular Since 2008, CIPL has also acted as the Secretariat for the CIPL Friday lunch-time seminar series, held, where possible, Jessup International Law Moot Court competition, held at on the first, third and fifth Friday of the month . As you the ANU College of law each summer . This year’s secretariat will see in the following pages, the seminars were excellent was managed by CIPL colleagues Matthew Zagor and with consistent strong attendance from a range of people Professor Don Rothwell and we thank them for this work . at ANU and in the broader Canberra community and we are As the ANZSIL meeting was held in New Zealand, our other considering continuing a regular series in 2010 and would key CIPL initiative, the Kirby Lecture in International Law be grateful for your feedback . (held during the ANZSIL conference when it is in Canberra) Beyond the seminar series, the Centre has had a very was held separately in 2009 . CIPL was very happy that the busy year promoting a sustained interest and engagement Hon . Mr Michael Kirby AC CMG could attend and Professor around public law and international law research and the Hilary Charlesworth’s speech was well received . The 2008 intersection between them . In August CIPL hosted its third Kirby lecture, delivered by Professor James Crawford, will workshop bringing together public and international lawyers, appear in this year’s Australian Year Book of International this time focussing on the environment . This workshop was Law (see page 19 of the Newsletter) and Professor jointly supported by the Australian Centre for Environmental Charlesworth’s lecture text is presently available on the CIPL Law (ACEL) here in the ANU College of Law . My colleague, website . An edited version of her lecture will appear in the Brad Jessup, played a key role in assisting in developing 2010 Australian Year Book of International Law . the workshop program and we are grateful to the Vice- Can I also draw to your attention the achievements of those Chancellor’s Travel Fund and the ANU partnership in the within the Centre in the congratulations box below, and to International Association of Research Universities (IARU) the amazing research output and community contributions for funding the travel of the participants from the University of the members of CIPL? As I have stated in each newsletter, of McGill, Oxford, Cambridge, National University of it is a great privilege and pleasure to be working with such Singapore and University of Copenhagen . Work is well talented colleagues . We are all supported by a collegiate underway for this being published as the third in the series Dean in Professor Michael Coper . He is integral to the great emanating from these workshops and I am delighted to sense of community in the ANU College of Law within which report that Cambridge University Press is publishing the CIPL is proudly housed . continued on page 3
CIPL Newsletter November | 2009 Finally, I would like to thank all the people who have supported CIPL in various ways throughout the past year . In particular, Tanya Mark was CIPL’s administrator from August 2008 through to January 2009 and we are pleased she is not too far away, now working over at RegNet at the ANU . The College of Law’s Outreach and Administrative NEWS Support team (COAST) continues to support CIPL, primarily The Minister for Immigration and through its Assistant Manager, Wendy Mohring, who has Citizenship announced his receipt been doing a superb job, supported by its Manager Christine of the report of the Australian Debono and other staff Kristian Draxl and Sarah Hull . CIPL Citizenship Test Review Committee extends its thanks for coordinating CIPL’s busy schedule . Moving forward . . . Improving Kim Rubenstein, November 2009 Pathways to Citizenship, of which Professor Kim Rubenstein was a member . The Minister also issued the government’s response to the report and legislative changes were introduced during the year . http://www.citizenship.gov.au/__data/assets/pdf_ file/0015/208140/moving-forward-report.pdf
WELCOME
CIPL is delighted to welcome new ANU members both in the ANU College of Law and from the greater ANU Dominique community, including Regulatory Institutions Network Dalla-Pozza, (RegNet) . For a full list of CIPL members see Associate Lecturer, BA (Hons); http://law.anu.edu.au/cipl/staff.asp LLB (Hons) (Sydney)
Moeen Cheema, Teaching Fellow, LLM Dominique Dalla-Pozza joined the ANU College of Law (Harvard); LLB (London) as an Associate Lecturer in mid 2009 . Her teaching and research interests revolve around Australian Public Law and Constitutional Law, and so tie in well with the work done by CIPL . She has been teaching in both of those subjects at the ANU in the second half of 2009 . Dominique is also completing her PhD with the Gilbert + Tobin Centre of Public Law at the Faculty of Law at the Moeen Cheema has been appointed as a Teaching Fellow University of New South Wales . (She was based at this and has an interest in comparative constitutional and centre before joining the ANU .) Her thesis is titled ‘The administrative law . Moeen will be pursuing a PhD on the Australian Approach to Enacting Counter-Terrorism Laws’ . Rule of Law and the development of judicial review theory This work is focused on the counter-terrorism legislation and practices in South Asia . His earlier research focused which was enacted by the Federal Parliament in the five on the implantation of Islamic legality, particularly criminal year period from 11 September 2001–11 September 2006 . laws, in Pakistan’s postcolonial legal system . Moeen’s She is looking forward to using her interest in public academic qualifications include an LLM from Harvard Law law issues as the basis for her continuing research, School and an LLB from the University of London . and becoming involved in future CIPL events .
CIPL Newsletter November | 2009 CONGRATULATIONS
Congratulations to the following CIPL members: To Simon Rice in his appointment to chair the newly based at Griffith University in Brisbane and CIPL will formed independent Law Reform Advisory Council in miss him on his departure to Queensland the ACT, (alongside his role as Director of Law Reform We are delighted that our colleagues Leighton McDonald and Social Justice in the College) and James Stellios were promoted to Level D (Reader/ The Attorney-General of the Commonwealth, Associate Professor), Vivien Holmes to Level C (Senior Mr Robert McClelland, has announced the appointment Lecturer) and Heather Roberts to Level B (Lecturer) in to the Administrative Appeals Tribunal (AAT), on a full- the 2008 promotions round time basis, of our esteemed colleague Professor Robin At the end of 2008 Emeritus Professor Jim Davis stood Creyke . Robin was Acting Director of CIPL in 2005 and down as Legal Adviser to the Senate Scrutiny of Bills continues as a member of the CIPL Board Committee . Jim has been longest serving legal advisor, To Simon Bronitt, Anne McNaughton with others from having been involved with the committee since 1983 ANU College of Asia and the Pacific (CAP) and ANU To Susan Harris Rimmer who was the first ANU student College of Arts and Social Sciences (CASS) for a three to graduate with a Doctor of Juridical Science from year Linkage grant on ‘Australia and the European Union: the ANU College of Law on 11 December and on A study of a changing trade and business relationship her appointment to the board of United Nations with the Department of Foreign Affairs and Trade Development Fund for women (UNIFEM) Australia (DFAT) and the European Union (EU) as partners CIPL graduate student member Matt Stevens, who To Hilary Charlesworth for her success in obtaining a spent a period working in the National Human Rights two year Linkage grant on protecting economic, social Consultation Secretariat at the Attorney-General’s and cultural rights in the ACT Department To Professors Don Rothwell and Kent Anderson for being Congratulations to our colleague Amelia Simpson and awarded The Vice-Chancellor’s Award for Community her husband Andrew Egan on the birth of their son Outreach, The Australian National University (2008) Jesse Rohan Egan, born in Manila on 22 July 2009 . Three of our colleagues received inaugural student Amelia is on leave while based in Manila awards for teaching: Amelia Simpson, Wayne Morgan and Kent Anderson . Congratulations to all three! Professor Simon Bronnitt’s has been appointed Director of the ARC Centre of Excellence in Policing and Security
Justice Richard CIPL’S ADVISORY BOARD Refshauge and Prof Michael Coper MEMBERS – Members of CIPL’S Advisory Board . In 2009 CIPL farewelled two of its Advisory Board members, The Hon . Michael Kirby AC CMG, who retired from the High Court of Australia and Ms Renee Leon who had been Chief Executive of the ACT’s Department of Justice and Community Safety, and who has now taken up a position in the Commonwealth Attorney-General’s Department . CIPL also welcomed Roger Wilkins, Secretary of the Attorney-General’s Department who replaced Robert Cornall on the Advisory Board and it is delighted to weclome Justice Richard Refshauge from the ACT Supreme Court CIPL is most grateful to its Board members for their time as a replacement for His Honour Justice Kirby . and support of CIPL . For a full list of CIPL’s Avisory Board see http://law.anu.edu.au/cipl/advisory-board.htm
CIPL Newsletter November | 2009 image is property of the ANU RECONCILIATION ACTION PLAN
In July 2009, the ANU launched its Reconciliation Action Plan which can be viewed at http://www.anu.edu.au/equity/_documents/ANU_ Reconciliation_Action_Plan.pdf The University is dedicated to advancing reconciliation by further promoting an understanding of Indigenous culture and history, implementing strategies to increase the participation of Indigenous students and staff, and continuing a commitment to fostering partnerships in Indigenous research and development . CIPL applauds this step by ANU and has been promoting the spirit of the plan in various ways . As you will have seen over the past two newsletters, CIPL has increased Indigenous the first session of the conference is devoted to content in its newsletter and publications, increased its The Declaration on the Rights of Indigenous People and engagement with Indigenous academics, particularly those Australian Law, with Associate Professor Irene Watson, working in fields associated with international Indigenous University of South Australia, speaking on Indigenous Rights, peoples rights and public law and international law, as well Peoples/Human Rights and the Declaration, Dr Christopher as increasing CIPL’s efforts to ensure Indigenous issues are Ward from the ACT Bar speaking on Australian Courts and canvassed at our discussion forums and workshops . the UN Declaration on the Rights of Indigenous Peoples At the 2008 Public Law Weekend, Megan Davis, Director, and Dr Lisa Strelein—AIATSIS speaking on Native Title Indigenous Law Centre, UNSW spoke on the topic Executive and UNDRIP: failing to meet the benchmark . Policy Leadership in the International Realm: Indigenous In addition, Dr Strelein’s book Compromised Jurisprudence: Issues in a session on ‘Public law Leadership and the Native title cases since Mabo (2nd edition) will be launched Executive’ . In this year’s 2009 Public Law Week-end, at the Public Law-Weekend .
CIPL Newsletter November | 2009 5 THE AURORA PROJECT
In 2009 ANU law students continued to be successfully Students invariably have excellent, sometimes even applying to the Aurora Project for internships with Native life—changing experiences during their internships, often Title Representative Bodies (NTRBs) and indigenous policy returning even more committed to promoting both the agencies and service providers . sector and the Aurora Project . The indigenous legal sector faces significant resource The winter intake this year was advertised to ANU law problems . The Aurora Project addresses some of these students through lecture announcements, the LSS, CIPL problems by providing interns who have an interest in and, for the first time, on Facebook . As a result of the broad indigenous affairs and are committed to using their skills exposure of the programme and the level of interest that to contribute to social justice for indigenous peoples . At the this generated, there were a record number of applicants . same time, of course, the interns gain invaluable experience, Many were placed in a wide range of indigenous policy but as well they are alerted to career options in indigenous organisations and NTRBs: Chiara Lawry went to the Cape legal sector: the Aurora Project aims not just to provide the York Land Council in Cairns; Anthony Hall worked at the much needed legal, research and administrative support Public Interest Advocacy Centre in Sydney; Greta McLeod, to overworked organisations, but also to give students Diana Zeleny and Dante Mavec were placed at the Centre a practical opportunity to actively consider the idea of for Aboriginal Economic Policy Research at ANU; Grace working in the area of native title, policy, social justice Keesing worked on a NSW North Coast Native Title claim and indigenous affairs . with Windeyer Chambers in Sydney; Isabel Robinson was As a result of their Aurora internship, students and those placed with the Northern Land Council in Darwin, and who hear of their experience can seriously consider working Jennifer Brightling worked at Reconciliation Australia with the indigenous legal sector as a viable professional in Canberra . Placements in the 08/09 summer included option . Currently twenty five law graduates have taken Arjuna Dibley at the Australian Human Rights Commission, up full—time positions as a result of the Aurora internship Lauren Hodes at the National Association of Community and scholarship programs, representing around 30% of Legal Centres (NACLC), and Kari Griffiths at Central Desert the number of lawyers workings in NTRBs . Native Title Services in Perth . At the time of writing Aurora is deliberating on placing the 09/10 summer round of interns, which again attracted high levels of interest from ANU students . Simon Rice, Asmi Wood and Matthew Zagor conduct the Aurora interview process at the College twice a year . Each of them has worked in the community sector and with native title issues at some stage, and has a keen appreciation of the challenges facing the indigenous legal sector . They find it is inspiring to work with the many ANU law students who are committed to improving legal policy and services for Australia’s indigenous peoples .
image is property of the ANU
Clockwise from above, Mr Matthew Zagor, Mr Asmi Wood, Simon Rice OAM . CIPL Colleagues who organise ANU’s participation in the Aurora project
CIPL Newsletter November | 2009 CIPL Events — October 2008 to September 2009
Most CIPL seminars are recorded and can be accessed at: http://law .anu edu. .au/cipl/Events .asp
Thirteenth Annual Public Law Weekend Eleventh Annual Sawer Lecture 31 October — 1 November 2008 Chief Justice Gleeson and the Constitution National Museum of Australia, Canberra 31 October 2008
The 2008 Public Law Weekend was a great success with The Eleventh Annual Geoffrey a very stimulating program . The conference theme was Sawer lecture was prepared by ‘Public Leadership’ and it sought to move forward beyond Emeritus Professor Leslie Zines, the initiative of the Government’s 2020 Summit in April, AO FASSA, a Visiting Fellow with in thinking about future directions for public law in the John Fleming Centre for the Australia . In particular, it considered how our public law Advancement of Legal Research institutions can be leaders in public law initiatives . There at the ANU College of Law . were panels on Public law leadership and the Parliament, Unfortunately, due to health the Executive, Academia and the Courts . reasons, Professor Zines was Details of the Program and the papers from the conference unable to present the lecture Emeritus Professor on the day and it was presented are available on the website . Leslie Zines by Professor Michael Coper, Dean of the ANU College of Law . The lecture was about Murray Gleeson’s method of constitutional interpretation, covering both matters in ‘The Constitution’ and broader constitutional principles . It contrasted his early statements emphasising ‘strict and complete legalism’ with many of his decisions . Matters covered included his views on original meaning, the place of human rights in legal interpretation
Dr Carmen Lawrence Ms Megan Davis The late Judge Jack Goldring and the relevance of social consequences in construing constitutional provisions . The paper has been published as a chapter in HP Lee and P Gerangelos, Constitutional Advancement in a Frozen Continent (Federation Press, 2009); a book honouring the late Professor George Winterton .
National Museum of Australia where the Public Law Weekend was held in 2008
CIPL Newsletter November | 2009 Rights . He then explained what it meant for a right to Seminar: have jus cogens status, and followed this with a defense of Disintegration Through Law? On the having procedural rights like habeas addeda to the list of jus Decomposition of Citizenship in Europe cogens norms . He examined the Guantanamo case to help Professor Dr Alexander Graser, understand why there needs to be a stronger support for Hertie School of Governance, Germany habeas than is often provided by regional courts . Procedural 7 November 2008 rights can have the status of gap fillers in international law, making it possible to cover much more possible abuse than In this seminar Professor Graser can be captured under prohibitions that concern specific argued that the law is widely seen substantive rights violations . as contributing to the integration of political communities and to the legitimating of political power . Seminar: Moreover, the concept of citizenship Making People Illegal. What Globalization has long been said to play a vital Means for Migration and Law Prof Simon Bronnitt, role in this respect . In recent Prof Kim Rubenstein Dr Catherine Dauvergne, & Dr Alex Graser times, however, he explained the University of British Columbia legal content of citizenship has 21 November 2008 undergone significant changes—a ‘decomposition’, as he be argued, which may in turn undermine the law’s integrative This seminar was about a recently published book by and legitimatory capacity . This development is one he Dr Dauvergne which examines the relationship between particularly advanced in ‘post national’ Europe, and the talk illegal migration and globalization . Under the pressures focused on this region . of globalizing forces, migration law is transformed into the last bastion of sovereignty . This explains the worldwide Seminar: crackdown on extra-legal migration and informs the shape Why habeas corpus should be this crackdown is taking . It also means that migration law a jus cogens norm in international law reflects key facets of globalization and addresses the central debates of globalization theory . This book looks at various Professor Larry May, Washington University migration law settings, asserting that differing but related November 13 2008 globalization effects are discernible at each location . The ‘core samples’ interrogated in the book are drawn from Jus cogens norms are rights or rules that can not be refugee law, illegal labour migration, human trafficking, derogated even by treaty . In the list that is often given, security issues in migration law and citizenship law . Special jus cogens norms include norms against torture, genocide, attention is paid to the roles played by the European apartheid, slavery, and crimes against humanity . All of the Union and the United States in setting the terms of global items on this list are substantive rights . In this paper Prof engagement . The book’s conclusion considers what the rule May argued that some procedural rights such as habeas of law contributes to transformed migration law . corpus should also have the status of jus cogens norms . He began by rehearsing some of the debates about these rights in the European and American Commissions on Human 60th Anniversary of the Genocide Convention Dr John Docker and Mr Robert Handby 24 November 2008
On 9 December 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide . The Convention declares killing, acts causing serious bodily or mental harm committed with intent to destroy, in whole or in part, a national, ethnical, religious or racial group amount to the crime of genocide . This event, held in conjunction with the ACT Humanitarian Law committee of the International Red Cross, involved Prof Larry May & Prof Michael Coper, Dean ANU College of Law speakers covering issues relevant to the Convention .
CIPL Newsletter November | 2009 Jessup International Law Moot Seminar: Court Competition Ocean Acidification: An Acid Test for International Law 2009 marked the 50th Anniversary of the Philip C Jessup Dr Tim Stephens, University of Sydney Competition . The Competition, held at ANU College of Law in February 2009 was attended by 15 Law Schools from 3 April 2009 around Australia and was well supported by the Attorney- The world’s oceans are a major carbon sink, absorbing General’s Department, Department of Foreign Affairs and increasing amounts of carbon dioxide from the atmosphere Trade and related government agencies . The final, held at which dissolves forming carbonic acid that disrupts the High Court of Australia and presided over by Chief processes of calcification utilised by many marine organisms, Justice French, was between the University of Melbourne most notably corals . Despite the seriousness of this problem and University of Western Australia with Melbourne being it is poorly addressed by existing international regimes . successful on the day . The Hon . Mr Michael Kirby AC CMG, By reference to the negotiating history for the relevant was acknowledged for his support of the Jessup Moot instruments and subsequent state practice, this seminar and was awarded the Friend of the Jessup . CIPL thanks sought to address how one of the most significant global Matthew Zagor and Don Rothwell for their roles in environmental problems has so far avoided international running this event on behalf of CIPL . regulation . Drawing on scholarship that examines the challenges associated with regulating other cross-cutting The Annual Kirby Lecture global environmental problems where there exists a ‘regime on International Law complex’ of partially-overlapping and non-hierarchical regimes, it also offered some preliminary thoughts in terms Swimming to Cambodia: Justice and of strengthening and harmonising the climate and pollution ritual in human rights after conflict regimes to address the ocean acidification phenomenon . Presented by Professor Hilary Charlesworth, ANU 19 March 2009
The Hon Michael Kirby AC CMG was the Special Representative for Human Rights of the UN Secretary- General in Cambodia from 1993–1996 . This lecture began with Michael Kirby’s contributions to peace-building in that context and then considered the role of international institutions in building peace more generally .
Dr Tim Stephens, Dr Hitoshi Nasu, Dr Robin Warner & Prof Don Rothwell
Prof Don Rothwell, Prof Hilary Charlesworth & The Hon Mr Michael Kirby AC CMG
CIPL Newsletter November | 2009 9 Seminar: Seminar: State Responsibilities & Financial Crises Operationalising the ‘Responsibility to Dr Sarah Heathcote, ANU College of Law Protect’ and Conflict Prevention: Dilemmas 17 April 2009 of Civilian Protection in Armed Conflict Dr Hitoshi Nasu, ANU College of Law Absent a general rule of due 1 May 2009 diligence, it is doubtful that a State could incur international The responsibility to protect is a nascent, highly contentious responsibility for the onset of concept . Although a restrictive understanding of the a global financial crisis - and concept was agreed upon by world leaders in 2005, the this despite ‘governance’ failures perspective of conflict prevention reveals the conceptual at the international level . Where gap in terms of its scope, stage, and strength, failing to international law has more to bridge the gulf between rhetorical support for prevention say is when a financial crisis Dr Sarah Heathcote and tangible commitment to international action . In this prompts a State to depart from seminar Dr Nasu argued that this commitment gap can be its international obligations owing in some other field . bridged by exploring the basis and boundaries of the legal Frequently, as with the Argentinean crisis of 2001-2002, responsibility that encompasses the transcending nature of the State departing from its obligations will invoke a state the responsibility to prevent and to react at the operational of necessity to avoid responsibility, but the results of ensuing level . The reach of legal responsibility to protect can be awards have been both contradictory and unsatisfactory . defined by drawing on the existing rules of international In this seminar Dr Heathcote argued that, contrary to what law relating to the protection of civilians . While such an the International Law Commission and a number of cases extension of the legal responsibility to protect can be have (theoretically) held since 1997, state of necessity is not appreciated as furthering the agenda of conflict prevention, a rule of customary international law and the international the marriage of the two concepts appears to be destined to legal system, including the rules on the origin of State failure, causing normative, operational, and ethical dilemmas . responsibility, can cater in other ways to situations of Dr Nasu suggested that a Human Protection Council be financial necessity . established as an alternative ‘right authority’ in order to resolve or mitigate those dilemmas by separating the Conference: responsibility to protect civilians from the Security Council’s PARLIAMENTS AND BILLS OF RIGHTS — primary responsibility for the maintenance of international How can parliaments adapt their forms peace and security . and practices to the new era of Bills of Rights? 24 April 2009
This conference, held in conjunction with the ANU Parliamentary Studies Centre, was held at Parliament House and looked beyond the arguments over the pros and cons of Bills of Rights to report on ways that Parliaments can learn to live with Bills/Charters of Rights by reforming their own institutional rules and procedures to strengthen their legislative roles and responsibilities . Keynote speakers were Prof George Williams, UNSW; Prof Brian Galligan, Melbourne University; Prof Richard Mulgan, ANU; Prof Simon Bronnitt, ANU; Prof Hilary Charlesworth, ANU; Prof Brian Costar, Swinburne University, Victoria and Sen . Hon . George Brandis SC, Shado Attorney-General on the Commonwealth .
Dr Hitoshi Nasu & Prof Don Rothwell
10 CIPL Newsletter November | 2009 position with respect to asylum seekers coming to Australia Seminar: by boat, the pursuit of people smugglers, and the factors Inglis Clark and the First Sentences which have contributed to a significant upsurge in boat of Chapter III of the Australian arrivals from Indonesia during the course of 2009 . Constitution and Article III of the This CIPL Forum addressed the significant legal and policy American Constitution issues arising from these events especially as they related to Professor William Buss, Iowa University Australian refugee law and policy, the factors contributing to 6 May 2009 the greater numbers of asylum seekers attempting to reach Australia, the investigation into the SIEV 36 incident and It is common knowledge that Andrew Inglis Clark came to the potential for criminal charges to be laid, and Australia’s the Australasian Constitutional Convention in 1891 with bilateral initiatives with Indonesia to deal with people a complete draft constitution and that it was very largely smuggling . based on the Constitution of the United States . Professor Buss is engaged in research that gives considerable attention to the debates among the Australian framers when they Seminar: were drawing significantly from the American Constitution, The Security Council and the Rule of which is the case with Chapter III . Selectively, he is also Law: Breaches of Constitutional Law as looking at lingering questions or issues triggered by the a Threat to the Peace under Article 39 debate and/or its resolution in provisions adopted in the of the UN Charter? Australian Constitution . Professor Theodore Christakis, The first sentence of section 71 of the Australian University of Grenoble & Sciences-Po Paris Constitution contemplates three locations of ‘the judicial 15 May 2009 power of the Commonwealth’: [1] ‘a Federal Supreme Court’ in which that power is ‘vested’ by the Constitution itself; Over the past few years the [2] any ‘other federal courts’ if Parliament chooses to UN Security Council has on create them; [3] ‘such other courts’ as Parliament ‘invests several occasions affirmed the with federal jurisdiction ’. Dr Buss went on to say a few ‘vital importance’ it attaches things about each of these locations concerning aspects to promoting the rule of law . of the convention debates and the relationship between Dozens of its resolutions make these locations of federal judicial power and the American references to the need to constitution . respect ‘the rule of law’ or Prof Theodore Christakis ‘the constitutional order’ Public Forum: of States . In some cases in THE SIEV 36 INCIDENT—The Legal Issues which democratic governments have been overthrown by military coups, the Council has gone as far as to ask ‘for an and Policy Responses immediate restoration of the constitutional order’, declaring Mr Kerry Murphy, D’Ambra Murphy Lawyers, that it ‘opposes any attempts to change governments Sydney; Mr Richard Towle, UNHCR; through unconstitutional means’ . Moreover, in some of those Dr Gregor Urbas, ANU; Dr Robin Warner, cases, the Council has not hesitated to adopt sanctions in University of Wollongong order to deal with what it considered ‘threats to the peace 7 May 2009 and international security’ . Could this mean that there is an emerging connection in Council practice between certain On 16 April 2009, Suspected Illegal Entry Vessel (SIEV) 36 grave breaches of constitutional law and the concept of exploded and sank near Ashmore Island after having been ‘threat to the peace’ found in article 39 of the Charter? detained by the Australian Border Protection Command . Nothing is less certain . In the great majority of cases, the Tragically, five persons lost their life during this incident, Security Council remains completely indifferent to member and many sustained very serious burns and injuries . The States’ violations of their constitutional law, including many subsequent repatriation of the injured to mainland Australia unconstitutional overthrows of governments by way of coup for hospitalisation and treatment was part of a significant d’état . Indeed, in some cases the Security Council even seems medical evacuation operation involving both military and to consider that the respect of domestic constitutional law civilian authorities . might be dangerous for international peace and security, The SIEV 36 Incident unleashed an extensive debate within thereby encouraging attitudes and actions contrary to Australia as to the Rudd Government’s current policy national constitutions .
CIPL Newsletter November | 2009 11 The conclusion presented by Professor Christakis was that the UN Security Council’s interest in the respect of a State’s Seminar: constitutional order are only incidental and that for this Genocide and the World Court organ, national constitutions remain, as the Permanent Court Professor Karine Bannelier, of International Justice put it in 1926, ‘mere facts’ . University of Grenoble & Sciences-Po Paris 29 May 2009
Seminar: Although not a criminal tribunal, the International Court International Law and Citizenship of Justice can deal with the crime of genocide within the context of both its advisory and its contentious jurisdiction . Professor Peter Spiro, Temple University - In February 2007, the Court issued a landmark judgment Beasley School of Law, Philadelphia, USA in the Genocide Case opposing Bosnia and Serbia . Further 19 May 2009 in November 2008, the Court established its jurisdiction in a second case concerning allegations of violations of this Professor Spiro explained that the conventional wisdom Convention between Croatia and Serbia . And in a third has categorically situated citizenship practice at the core of case, concerning allegations by Georgia against Russia of sovereign discretion, outside the ambit of international law . violations of the Convention on the Elimination on all Forms But in his view, recent developments suggest that human of Racial Discriminations, the Applicant reserved its right to rights norms will come to bear on rules relating to birth invoke article IX of the Genocide Convention as an additional citizenship, naturalization, and dual nationality . Professor basis for the Courts jurisdiction . Professor Bannelier argued Spiro argued that the emergence of an international law of these cases submitted to the World Court reflect a growing citizenship advances human rights and anti-discrimination interest in the Convention Concerning the Prevention and norms . Over the long run, however, it undermines the liberal Punishment of the Crime of Genocide . Over the past few state as a location for the redistribution of rights years, a growing number of jurisdictions, both international and domestic, have handed down judgments based on Public Seminar: this Convention . Often these have led to controversial The Role and Activity of the Independent and contradictory interpretations on the definition of Reviewer of Terrorism Legislation in the UK genocide as phrased in the Convention . On this point, Professor Bannelier argued the World Courts contribution Lord Carlile of Berriew Q C. could be significant as a means of avoiding jurisprudential 16 June 2009 fragmentation in this field .
Lord Alex Carlile has been the Independent Reviewer of Terrorism Legislation for the UK since 2001 . He carries out running reviews and reports publicly on the operation of counter-terrorism legislation and he has been critical of, and supportive of government . In this seminar he argued that an independent person in this role can provide a level of public reassurance on the balance between regulation and civil liberties; and that he can proportionately influence debate and policy making . He also argued that national security is an important individual liberty in the context of current Prof Theodore Christakis, Prof Karine Bannelier, international terrorist activity . Dr Sarah Heathcote & Prof Don Rothwell
17th Annual ANZSIL Conference: The Future of Multilateralism in a Plural World 2-4 July 2009
This year the 17th Annual ANZSIL Conference was held in Wellington New Zealand and was a great success . Details of the conference are now available on ANZSIL’s website Prof Michael Coper & Lord Carlile at http://law.anu.edu.au/anzsil/.
12 CIPL Newsletter November | 2009 Does this statement have the status of a customary norm? Public Seminar: Does it conflict with the widespread state practice of Third Accountability of UN Peacekeepers: World states opposing enforcement of human rights norms? Monitoring the Monitors Does this opposition show a lack of opinio juris for the Captain Rob McLaughlin, RAN, Dr Hitoshi Nasu proposition that states accept a responsibility to protect 7 July 2009 their populations? Is the first limb of R2P just a clever formulation barely In 2009, the need to address issues surrounding the concealing the entrenched opposition in the Third World accountability of UN Peacekeepers has never been more to the enforcement of human rights norms? Has R2P really pressing . The challenges of operational self-defence ‘solved’ the contentious issue of humanitarian intervention? and the attribution of peacekeepers’ conduct to the UN remain limitations upon the effective prosecution of UN Peacekeepers for misconduct and breaches of International Seminar: Humanitarian Law . These issues merit timely consideration Joint development of Arctic Ocean oil for the protection of victims of armed conflict and to afford and gas resources and the United Nations peacekeepers themselves the advantage of legal clarity . convention on the law of the sea. Captain Rob McLaughlin examined three possible approaches John Abrahamson, Director International Tax, to characterising self-defence to establish which issues Sheltons, Copenhagen, Denmark are legitimately in, and which outside, the legal definition 31 July 2009 of‘self-defence’ as it applies to operational UN Peacekeepers . Dr Hitoshi Nasu reviewed the rationale behind UN immunity Several countries with Arctic coasts are likely to claim and the law of attribution and explores the limits to judicial the same Arctic Ocean areas for offshore oil and gas review by domestic courts of the wrongful conduct of development . Global warming is also likely to reduce ice UN Peacekeepers . cover and increase the potential for resource conflicts . Joint Development Zones (JDZs) are a potential solution used in other ocean regions . JDZs can be made under the Seminar: United Nations Convention on the Law of the Sea, and can The Responsibility to Protect (R2P) be agreed without determining a final ocean boundary . —the White Man’s Burden? Australia has agreed a JDZ with East Timor and has extensive Mr Kevin Boreham, ANU College of Law experience with their terms . The presentation reviewed the 7 August 2009 outer continental shelf claims in the Arctic Ocean, the latest estimates for Arctic oil and gas reserves, and the ocean areas In this seminar Kevin Boreham asked: ‘What is the status with the best potential for JDZs . in international law of the first limb of the ‘Responsibility to Protect’, ie the statement of the 2005 World Summit Outcome that: ‘Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity . This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means . We accept that responsibility and will act in accordance with it ’.
John Abrahamson
Mr Kevin Boreham
CIPL Newsletter November | 2009 13 result resulted in immediate acts of violence, a ‘scorched Public Lecture: earth’ policy, looting, massive evacuations and forced Sustainable Development and the deportation of the population, overseen by the departing Promise of Integration Indonesian military . Ten years later, Janelle Saffin MP and Professor Jaye Ellis, McGill University Dr Susan Harris-Rimmer review the quest for justice in Timor Leste, appraising the outcomes of the UN-led serious crimes 11 August 2009 process within Timor, the Commission on Truth, Reception and Reconciliation (CAVR), the Jakarta trials and the Joint Professor Ellis’s visit to Truth and Friendship Commission . CIPL was supported by the Vice-Chancellor’s travel fund . In this public lecture she CIPL—ACEL Environmental Discourses examined sustainable Workshop: development, described in Connecting International and Public Law the ground-breaking Brundtland Report as meeting the needs Environmental Discourses In International of present generations and Public Law Prof Kim Rubenstein & Prof Jaye Ellis without compromising future 13-15 August 2009 generations to meet their own needs . She explained it has at its heart a promise This third workshop in the CIPL series (see CUP book of integrating and reconciling environment, economy series on page 25 series) was held in August 2009 and and society . Yet the challenge presented by this promise is CIPL was delighted to be joined by the Australian Centre immense . In this lecture, she discussed the obstacles and for Environmental Law (ACEL) from the ANU College of potential pathways to integration, taking as her standpoint Law to examine the topic of Environmental Discourses in international environmental law . International and Public Law . Professor Rubenstein and Brad Jessup coordinated the workshop which focused on environmental discourses within law and policy at the Seminar: domestic and international levels . The workshop explored Justice for Timor-Leste: how dominant environmental thought and action, often the 10th anniversary of the drawn from non-legal disciplines, has been placed within Independence Ballot public and international law . The workshop brought public Janelle Saffin MP, Federal Member for Page, lawyers and international lawyers together with academics Dr Susan Harris-Rimmer, CIGJ, ANU from related disciplines to the table to learn and draw from 21 August 2009 each other in the resolution of some of the crucial issues underpinning this area . Participants came from University 30 August marks the tenth anniversary of the ballot in 1999 of McGill in Canada and the IARU universities of National by which the people of Timor Leste won their independence . University of Singapore, Oxford and Cambridge and the On 4 September 1999, it was announced that 78 .5 per cent University of Copenhagen . In addition there were Australians of the population had voted against Timor Leste remaining from around the country . ANU College of law participants as part of Indonesia, and therefore independence would be included Brad Jessup, James Prest, Professor Don Rothwell granted to the territory . The announcement of the ballot and PhD student Owen Cordes-Holland .
Janelle Saffin MP & Dr Susan Harris-Rimmer CIPL–ACEL Workshop
14 CIPL Newsletter November | 2009 Professor Charlesworth’s presentation of the 2009 Annual Symposium: Kirby Lecture in International law earlier in the year . Global Health: Beyond the Millennium Development Goals Professor Lawrence Gostin, Georgetown University; Professor Thomas Pogge, ANU; Dr Matthew Rimmer, ANU College of Law; Associate Professor Thomas Faunce, ANU College of Law 21 August 2009
Following on from the CIPL and CAPPE 2008 public forum on Global Health and Access to Medicines, this symposium takes advantage of Professor Gostin’s position at the University of Sydney, as Visiting Professor of Global Health Law, to bring him together with ANU experts to examine Prof Hilary Charlesworth, The Hon Michael Kirby AC CMG, continuing pressing issues of global health . The symposium Prof Kim Rubenstein & Prof Michael Coper was chaired by Professor Kim Rubenstein, Director of the Centre for International & Public Law in the ANU College of Law .
Event Audience
Public Lecture: L—R: Dr Matthew Rimmer, Prof Thomas Pogge, Prof Kim Rubenstein, Counter—Piracy Off Somalia: Assoc Prof Thomas Faunce and Prof Lawrence Gostin The Emerging Legal Framework Dr Douglas Guilfoyle, Faculty of Law, University College of London Public Lecture: 17 September 2009 Cambodia and Human Rights: Memories of a Former Special Dr Guilfoyle explained that piracy off Somalia, on the rise Representative since 2005, has now reached endemic proportions . While the total proportion of shipping attacked and seized for Jointly run with the Centre for ransom in the Gulf of Aden remains low and hostage deaths International Governance and Justice few, the issue has attracted international attention . The The Honourable Michael Kirby AC CMG— initial response was to seek Security Council authorisation Chaired by Professor Hilary Charlesworth for military counter-piracy operations . With the deployment 7 September 2009 of over 24 warships under a variety of national missions and legal mandates, the legal question of what to do with The Hon Michael Kirby is a retired Justice of the High Court a captured pirate has proved more complex than anyone of Australia . He was Special Representative of UN Secretary- fi rst anticipated . Dr Guilfoyle further displayed there has General for Cambodia, 1994–96 . His special concerns been a rapid transition from a ‘top-down’ military or kinetic include human rights, the rule of law, the independence of approach to the ‘bottom-up’ creation of a decentralised the judiciary and the impact of science and technology on law-enforcement framework . A variety of hard and soft law society . He was inspired to present this lecture following mechanisms now form part of a flexible, pragmatic and
CIPL Newsletter November | 2009 15 still-evolving framework aimed at the effective prosecution The paper finally discussed the relative success so far of the of captured pirates . Finally, questions not fully resolved Universal Periodic Review Mechanism, the most significant include the scope of authority to use force against suspect innovation of the Human Rights Council . pirates and the impact of human rights law on their transfer to regional States such as Kenya to face trial . Public Seminar: The Regulation of Dangerous People Seminar: Under International & Domestic Law ‘Iran’s Nuclear Ambitions & International Law’ Jointly run with the Centre for Dr Michael Smith AM, Henry Parkes Chambers International Governance and Justice 18 September 2009 Fergus Hanson, Research Fellow, Lowy Institute & Deputy Editor, The Interpreter and Christopher Michaelson, Research Fellow, Gilbert & Tobin The scope and intentions of Iran’s nuclear program is one Centre of Public Law, UNSW of the most pressing matters before the international community . Dr Smith examined the offer by Iran’s top 16 October 2009 nuclear negotiator in early September to return to the This seminar considered the regulation of dangerous people negotiating table as having again focused attention on under international and domestic law . Fergus Hanson looked the efficacy of UN and unilateral sanctions, and the at the options available for responding to the presence of attendant roles of the the Security Council and the alleged war criminals living in Australia and Chris Michaelson International Atomic Energy Agency . Dr Smith also analysed the issues surrounding the individual listing of considered the legal aspects of any use of force . alleged terrorists in the UN Sanction framework .
Public Seminar: Challenges and Innovations: Multilateralism in the United Nations Human Rights System Dr Sarah McCosker, Office of International Law, Attorney-General’s Department 2 October 2009
Both the United Nations human rights treaty body mechanisms and Charter mechanisms face ongoing challenges, including significant backlogs; issues of L—R: Prof Kim Rubenstein, Fergus Hanson, Christopher Michaelson and Dr Susan Harris-Rimmer overlapping mandates; inconsistency in quality; and the perception that the system has little impact on the principal human rights violators . Dr McCosker showed how both the treaty body and Charter mechanisms have developed some interesting innovations in recent years, which highlight the adaptive capability of the UN human rights system to develop new ways of addressing challenges— but which have also brought fresh challenges . The paper then examined thechallenges and innovations reflected in the new Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention Against Torture . The paper also critically evaluated some innovations in treaty reporting processes, and an interesting (and potentially controversial) development in the way that some treaty committees are drafting their General Comments—by first providing a draft text to States Parties and civil society and inviting them to submit their views .
16 CIPL Newsletter November | 2009 Public Seminar: Conference: The Grammar of Customary Law Corfu Channel Case – Run in conjunction with AITSIS ‘The ICJ’s First Judgement: Professor Jeremy Webber, University of Victoria, a Landmark for International Law’ Canada 29 October 2009 22 October 2009 This one-day conference commemorated the sixtieth In this paper, Professor Webber argued for the customary anniversary of the International Court of Justice’s first nature of law – all law . He build on the pragmatist judgment in the Corfu Channel Case . Many of the issues conception of law developed by Lon Fuller and Gerald dealt with by the Court in 1949 remain central questions Postema and substantially modified their approach, while, of international law today, including: due diligence, forcible arguing that concerns of facilitation and efficiency are intervention and self-help, maritime operations, navigation less responsible for the content of law and that the various in international straits and the concept of elementary conceptual languages of the law play a much greater considerations of humanity . The Court’s decision has been role . In doing so, he offered an understanding of how cited on numerous occasions both in the literature and law is related to its various societies . His argument has in international litigation . Indeed, the relevance of this important implications for the value of comparative law, judgment goes far beyond the subject matter dealt with by for how one should do comparative law, and for how one the Court in 1949, extending to pressing problems such as should structure societies that contain more than one legal trans-boundary pollution, terrorism or piracy . Thanks to order . Although the paper’s argument was not limited to Dr Sarah Heathcote from the ANU College of Law for her customary legal orders in the narrow sense, it did draw upon key role in facilitating this conference . comparisons across indigenous and non-indigenous orders to make its arguments . Seminar: The Last Scramble: The 2009 Explosion of Continental Shelf Claims Professor Stuart Kaye, Melbourne Law School, University of Melbourne 30 October 2009
In 2009 over 80 submissions and communications have been made by States to the Commission on the Limits of the Continental Shelf - the bulk of these being made in a three week period from late April to mid-May . These communications have seen States assert rights over huge areas of seabed, in what is arguably one of the largest grabs for jurisdiction in history . The claims vary in nature and Prof Kim Rubenstein, Prof Jeremy Webber & Dr Lisa Strelein from AITSIS scope considerably, and are already giving rise to dispute . This paper considered the origins and nature of this last scramble, as well as possible future outcomes .
CIPL Newsletter November | 2009 17 Forthcoming Events
Fourteenth Annual Public Law Weekend Twelfth Annual Sawer Lecture Finkel Theatre, John Curtin School On Stormy Waters: South Africa’s Judges of Medical Research, ANU (& Politicians) test the limits of their 12-13 November 2009 Constitutional Authority.
This fourteenth annual Public Law Week-end introduces, for 12 November 2009 the first time, a Thursday afternoon and Friday schedule, to An important part of this year’s Public Law Week-end end off the week . The program, around the theme of Change will be the 2009 Geoffrey Sawer Lecture to be presented in public and administrative law, includes on the Thursday by Professor Hugh Corder, Professor of Public Law at the evening the twelfth Geoffrey Sawer annual lecture . University of Cape Town, South Africa . The formal provisions of the South African Constitution have , over the past fi fteen years, shifted from a racist variation of parliamentary sovereignty to a constitutional democracy based on limited government under law, striving for dignity, equality and freedom . The Constitution of 1996 seeks to incorporate the best lessons learnt by other such systems over the past sixty years in particular, blended with substantial infusions of supranational scholarship and experience and built on an African, developing country base . The superior courts have had to assume a more directly ‘political’ role in exercising the testing power of judicial review, not only in respect to the protection and enforcement of basic rights . Their judgments have had to engage with urgent socio-economic problems, as those faced with dire circumstances have increasingly turned to the courts to hold the executive and legislature accountable to their constitutional mandate . In crafting their responses, the judges have had to be extremely sensitive both to their responsibility to the letter and values of the Constitution but also to the policies and limitations of the other branches of government . This lecture seeks to analyse the current situation critically, and to speculate on what lies ahead in this sphere .
John Curtin School of Medical Research, the venue for the 2009 Public Law Weekend
18 CIPL Newsletter November | 2009 Australian Year Book of International Law
Volume 27 is now available for purchase. To view the contents page or order a copy of recent past volumes please go to our Book Reviews: edited by Wendy Lacey website at: Australian Cases before Australian Courts and Tribunals Involving Questions of Public International http://law.anu.edu.au/CIPL/Publications/YearBook.htm Law 2006: Lucas Bastin, Naomi Hart, Justin Hogan- Doran, Claire McEvilly, Tim Stephens, Zelie Wood Editors and Houda Younan Donald R Rothwell and Kim Rubenstein Australian Cases before International Courts and Preface Tribunals Involving Questions of Public International James C Hathaway Law 2006: Tim Stephens and Brett Williams Is There Still a Place for a ‘Yearbook’ of International Law? Australian Legislation Concerning Matters of Articles: International Law 2006: Alicia Fairlie, Lauren Henschke, James Potter and Andrew Sainsbury Symposium: The Howard Government and International Law Australian Practice in International Law 2006: Introduction: compiled and edited by Patrick Dennien and Genevieve Australia and International Law during the Howard Years Paterson and supervised by Helen Horsington and Donald R Rothwell and Kim Rubenstein Ben Milton Greg Carne Neither Principled nor Pragmatic? The Howard Annual Survey of Recent Developments in Australian Government, International Law and International Terrorism Private International Law 2006: Kent Anderson and Sarah Joseph The Howard Government’s Record of Jim Davis Engagement with the International Human Rights System Australian Treaty Action 2006 Stuart Kaye Australia and East Timor during the Howard Years: An International Law Perspective Jane McAdam and Kate Purcell Refugee Protection in the Howard Years: Obstructing the Right to Seek Asylum Gregory Rose Australian Approaches to International Environmental Law during the Howard Years Gerry Simpson Warriors, Humanitarians, Lawyers: The Howard Government and the Use of Force Jeff Waincymer The Howard Government’s Legacy in International Trade and Investment Ilias Bantekas The Politics and Foundations of Arbitrability in International Commercial Arbitration Alexander Kunzelmann An Australian International Law: The Impact of Australian Courts on the Fragmentation of International Law
CIPL Newsletter November | 2009 19 Volume 28 is in press and will be published at the end of 2009. CIPL STUDENT Editors INTERNSHIPS Donald R Rothwell and Kim Rubenstein CIPL has continued its association with the ANU Law Internship program by accepting undergraduate law students Inaugural Kirby Lecture to work with CIPL . Interns work with members of the in International law Law School on projects of an applied nature, attend CIPL International Law in the House of Lords and the High Court afternoon teas/lunches and meetings and assist with the of Australia 1996–2008: A Comparison major conferences CIPL runs . At the end of their internship, James Crawford students write a 6000 word essay which is marked and goes towards their final degree . Articles 2009 CIPL Intern was Gabrielle Zimnoch Power, Environmental Principles and the International Court of Justice Afshin Akhtarkhavari Re-thinking International Criminal Law: Re-Connecting Theory with Practice in the Search for Justice and Peace Dylan Bushnell Litigation over Marine Resources: Lessons for Law of the Sea, International Dispute Settlement and International Environmental Law Natalie Klein Some Views are more Equal than Others: Submissions to the Commission on the Limits of the Continental Shelf and the Strange Loss of Confidence in Article IV of the Antarctic Treaty Andrew Serdy The World, through the Judge’s Eye Katharine G Young After completing my bachelor degree in law at the Jean Moulin University in Lyon, France, I was attracted by Book Reviews: edited by Wendy Lacey the exchange program with the The Australian National University in Canberra . As ANU exchange student I acquired Australian Cases before Australian Courts and an understanding of the Australian common law system Tribunals Involving Questions of Public International and I was given the great opportunity to complete a law Law 2007 internship with the CIPL . Australian Cases before International Courts and My CIPL Internship focused on ‘Facebook: Freedom of Tribunals Involving Questions of Public International Speech and Regulation of Social Networking’ . It was a Law 2007 fantastic occasion to deepen my knowledge in particular Australian Legislation Concerning Matters of areas I am interested in, such as international and International Law 2007 comparative law, human rights, as well as intellectual property and information technology law . Australian Practice in International Law 2007 I gratefully acknowledge the supervision and guidance Annual Survey of Recent Developments in Australian received from Professor Matthew Rimmer . I am thankful Private International Law 2007 for all his advice and support . Australian Treaty Action 2007 In October I will start a LL .M . degree, the E .M .L .E . which will give me the opportunity to study at the University of Bologna, the University of Hamburg and the Erasmus University of Rotterdam ’. — Gabrielle Zimnoch
20 CIPL Newsletter November | 2009 CAMBRIDGE UNIVERSITY PRESS (CUP) Series: Connecting International law with Public law
This CUP Book series emanates from the workshops initiated the series, edited by Kim Rubenstein, Thomas Pogge and by Professor Rubenstein’s arrival at CIPL in 2006 . As set Matthew Rimmer, Incentives for Global Public Health: Patent out in explaining the raison d’etre of the series, the Centre Law and Access to Essential Medicines due out in 2010 . for International and Public Law (CIPL) was established by The papers from the third workshop Environmental Discourse ANU in 1990 under the formal title ‘Centre for Advanced in International and Public law are now being developed for Legal Studies in International and Public Law’ . Its mission the third book in the series to be edited by Brad Jessup and is to advance international and public law, focussing on Kim Rubenstein . the relationship between governments, and between governments and their citizens, from both a domestic The fourth workshop in the series to be held in 2010 and international perspective . Setting up a Centre linking has the theme Allegiance and Identity in a Globalised public law and international law proved a stroke of great World which will become the fourth book in the series . prescience . As the 1995 five year review report stated ‘the The 2010 workshop will revolve around issues to do with most remarkable developments of the past decade or so the movement of people and globalisation and will bring (which in 2009 now represents almost two decades) have together lawyers, psychologists and philosophers . Any been the ‘internationalisation’ and ‘globalisation’ of different individuals interested in attending should go to the CIPL dimensions of Australian society, the Australian economy website’s call for abstracts for the fourth workshop at and the Australian legal system ’. The review stated that the http://law.anu.edu.au/CIPL/2010_Workshop/ Centre had sought to respond to these inexorable trends by Call_for_Papers.pdf adopting a ‘genuinely integrated approach to its work Sanctions Accountability and Governance in a Globalised in various fields of both public and international law ’. World due out in November 2009 . Edited by Kim Rubenstein CIPL initiated this series of workshops bringing public and Jeremy Farrall and international lawyers and public and international policy makers together for interdisciplinary discussion on selected topics and themes, extending CIPL’s unique project emphasising the links between international and public law . A book series from the workshops, jointly edited by Professor Kim Rubenstein and Professor Thomas Pogge is the outcome of this initiative, published by Cambridge University Press . The first workshop in July 2007 looked at the complexities of accountability and governance in a globalised world, using sanctions as a framework into the issues . The papers from that workshop are now available in the first book in the series edited by Kim Rubenstein and Jeremy Farrall, Sanctions Accountability and Governance in a Globalised World due out in November 2009 . In the second workshop in May 2008 CIPL joined with Professor Thomas Pogge and CAPPE (the Centre for Applied Philosophy and Public Ethics) at ANU, to examine global health and access to essential medicines . The papers from this workshop are now in press for the second book in
CIPL Newsletter November | 2009 1 A Selection of Publications by Centre Members September 2008 — October 2009
Peter Bailey Book review - Peter Bailey, The Human Rights Enterprise in Australia - Alternative Law Journal The Human Rights Enterprise: In Australia and Internationally, LexisNexis/Butterworths, Sydney, 2009 . Book review – Implementing Human Rights Norms: The book was launched by former High Court Justice Judicial Discretion and Use of Unincorporated Conventions Michael Kirby to a large audience in the Finkel Theatre by Wendy Lacey Australian Journal Human Rights 15 1. at the ANU College of Medicine . Moeen Cheema Tony Connolly ‘From the Hudood Ordinances to the Protection of Women Cultural Difference On Trial: The Nature and Limits of Act: Islamic Critiques of the Hudood Laws of Pakistan’, Judicial Understanding . Ashgate Publishing: Farnham forthcoming in (2009) UCLA Journal of Near Eastern and (forthcoming January, 2010) Islamic Law (with Abdul Rahman Mustafa) . Indigenous Rights . Ashgate Publishing: Farnham Hitoshi Nasu (International Library of Essays on Rights Series), (2009) . International Law on Peacekeeping: A Study of Article 40 of ‘Pardons’ in The New Oxford Companion to Law . P . Cane and the UN Charter (Leiden: Martinus Nijhoff Publishers, 2009) . J Conaghan. (eds .), Oxford University Press, Oxford (2008) . ‘Who Guards the Guardian?: A Regulatory Approach to the First Nations Cultural Heritage and Law, Case Studies, Voices Enhancement of Legal Accountability of the UN Security and Perspectives, by Catherine Bell and Val Napoleon (eds .), Council through Dialogue’ in Kim Rubenstein and Jeremy 19(5) Law and Politics Book Review (May, 2009) (American Farrall (eds), Sanctions Accountability and Governance in Political Science Association) pp .303-306 . a Globalised World (Cambridge: Cambridge University Press, Susan Harris-Rimmer forthcoming) . ‘Status of Rebels in Non-International Armed Conflict’, in Gender and Transitional Justice: The Women of East Timor, Louise Dowsald-Beck, Azizur Rahman Chowdhury, Jahid Routledge Contemporary South East Asia Series, 2009 Hossain Bhuiyan (eds), International Humanitarian Law - (in press) An Anthology (LexisNexis Butterworths, India, 2009) . Understanding Transitional Justice: Concepts and Debates, ‘Operationalising the “Responsibility to Protect” and Edward Elgar (under contract, with Laura Grenfell) Conflict Prevention: Dilemmas of Civilian Protection in ‘Passport to Punishment: Administrative Measures of Armed Conflict’ (2009)14 Journal of Conflict & Security Control’ . Andrew Lynch, Nicola McGarrity, and George Law forthcoming . Williams (eds), Counter-Terrorism and Beyond: Tom Faunce and Hitoshi Nasu, ‘Normative Foundations The Culture of Law and Justice After 9/11 Routledge of Technology Transfer and Transnational Benefit Principles Research in Terrorism and the Law Series, (in press 2009) . in the UNESCO Universal Declaration on Bioethics and ‘Reconceiving Refugees and Internationally Displaced Human Rights’ (2009) 34 Journal of Medicine and Persons as Transitional Justice Actors’ CIGJ Issues Paper Philosophy 296-321 . No.8, March 2009 . Yasuhiro Okuda and Hitoshi Nasu, ‘Constitutionality of the ‘Is ASIO a good judge of character?’ (2009) Alternative Japanese Nationality Act: A Commentary on the Supreme Law Journal, 34(2): 102-106 . Court’s Decision on 4 June 2008’ (2008) 13 Zeitschrift für ‘Comment: Examining the character of Australian citizens’ Japanisches Recht/Journal of Japanese Law 101-115 . (2009) Public Law Review 20(2): 95-100 . Matthew Rimmer Surfacing Gender in the Constitution of Timor Leste, Wikipedia, ‘Collective Authorship, and the Politics of The Constitution of Timor Leste . Ed . William Binchy . Knowledge’, in Arup, C . and W . Van Caenegem (ed .), Dublin: Clarus Press, (forthcoming 2010) . Intellectual Property Policy Reform: Fostering Innovation Book review - ‘Counter-Terrorism Policing by and Development, Cheltenham (UK) and Northampton Sharon Pickering, Jude McCulloch and David Wright Neville (Mass .): Edward Elgar, 2009, p 172-198 . for the ANZ Journal of Criminology, 2009 .
22 CIPL Newsletter November | 2009 ‘The Grapes of Wrath: the Coonawarra Dispute, (eds) Health of Antarctic Wildlife: A Challenge for Science Geographical Indications and International Trade’, in Kenyon, and Policy (Springer-Verlag, Berlin: 2009) 317-338 A ., Richardson, M . and S . Ricketson (ed .), Landmarks in Natalie Klein, Joanna Mossop and Donald R . Rothwell eds ., Australian Intellectual Property Law, Cambridge: Maritime Security: International Law and Policy Perspectives Cambridge University Press, 2009, p 209-232 . from Australia and New Zealand (Routledge, London: 2009) Heather Roberts ‘Maritime Security in the Twenty-First Century: Contemporary and Anticipated Challenges for Australia and Constitutional Law’ in Freckelton & Selby Appealing to New Zealand’ in Natalie Klein, Joanna Mossop and Donald the Future: Michael Kirby and his legacy (Federation Press, R . Rothwell eds ., Maritime Security: International Law 2009), 179 (With Professor John Williams) and Policy Perspectives from Australia and New Zealand Donald R Rothwell (Routledge, London: 2009) ‘The Arctic in International Affairs: Time for a New Regime?’ Natalie Klien, Joanna Mossop and Donald R, Rothwell (Fall/Winter 2008) 15 Brown Journal of World Affairs 241-253 ‘Australia, New Zealand and Maritime Security’ in Natalie Klein, Joanna Mossop and Donald R . Rothwell eds ., Maritime Natalie Klein, Joanna Mossop and Donald R . Rothwell Security: International Law and Policy Perspectives from ‘International Law Perspectives on Trans-Tasman Maritime Australia and New Zealand (Routledge, London: 2009) Security’ in Andrew Forbes (ed) Australia and Its Maritime Interests: At Home and in the Region (Sea Power Centre— Donald R . Rothwell and Natalie Klein ‘Maritime Security Australia, Canberra: 2008) 209-221 and the Law of the Sea’ in Natalie Klein, Joanna Mossop and Donald R . Rothwell eds ., Maritime Security: International Donald R . Rothwell and Kim Rubenstein ‘Introduction: Law and Policy Perspectives from Australia and New Zealand Australia and International Law during the Howard Years’ (Routledge, London: 2009) (2008) 27 Australian Year Book of International Law 1-10 Donald R . Rothwell and Cameron Moore ‘Australia’s Maritime Piracy and International Law’ Crimes of War Traditional Maritime Security Concerns and Post 9/11 Project
CIPL Newsletter November | 2009 “An Amicus Experience in the High Court: Wurridjal v Susan Harris Rimmer presented at the Australia and Commonwealth” (2009) 20 PLR 104 . New Zealand Society of International Law in Wellington NZ, Thursday 2 July on the Responsibility to Protect doctrine . Leslie Zines Sue participated in the Gilbert + Tobin Centre of Public Law’s Chapter in HP Lee and P Gerangelos, Constitutional Terrorism and Law Expert Roundtable in July 2009 . Advancement in a Frozen Continent (Federation Press, 2009); Sue Harris Rimmer presented a panel paper on ‘Refugees, IDPs and R2P’ at an International Conference: ’Protecting Papers, Presentations and Other People in Conflict and Crisis: Responding to the Challenges of a Changing World’ . 22 - 24 September 2009, held at Harris Activities by Centre Members Manchester College and Queen Elizabeth House, Oxford . Jeremy Farrell and Sue Harris Rimmer are presenting September 2008 — October 2009 at the Assisting Disrupted States event on Thursday 29 October from 9 .30-12 .30, hosted by the Australian Peter Bailey Institute of International Affairs, AIIA Conference Centre, Level 1, Stephen House, 32 Thesiger Court, Deakin, ACT Paper at Bruce Hall in August in an evening forum sponsored CIPL Seminar Series “Justice in Timor - Leste on the by Asia Pacific Studies Society on the topic ‘Does China Play 10th Anniversary of the Timor Independence Ballot” by Our Rules?’ Dr Susan Harris-Rimmer & Janelle Saffin, 21 August 2009 Guest lecturer at the Annual General Meeting of ‘Regulating human worth: disability and migration policy in Relationships Australia, Canberra and Region in October on Australia’ Susan Harris-Rimmer, RegNet ANU and Dr Kristen human rights and the possibility of RACR becoming a human Natalier, School of Sociology and Social Work, University rights compliant organisation under the Human Rights Act of Tasmania, RegNet seminar, 21 July, 1994 (ACT) . Presenter, Leadership Awardees, ‘Gender and the GFC’, Moeen Cheema Future Summit, Melbourne 17 May 2009 . Workshop on ‘Islamic Law in the Courts: Judicial Presenter, Advocacy skills, UNIFEM Young Women’s Interpretation of Shari’a in Modern Muslim States’, Leadership Forum, Powerhouse Museum, Sydney, 5-6 June 2009, University of Washington, Seattle U .S .A . 22 May 2009 . ‘Militancy, Orthodoxy & “Rule of Law”: Reconstructing the Presenter, Whats in it for Women? Women and Human De-Islamization of Pakistan’s Laws’: at the Conference on Rights Protection in Australia, Australian Human Rights Countering Militancy in Pakistan: Domestic, Regional and Commission, Central Bardon Conference Centre, Queensland, International Dimensions, 3-4 August 2009, Centre for 28 April 2009 . Muslim States and Societies, University of Western Australia Keynote, 60th Anniversary of the Universal Declaration . (http://www .cmss .uwa edu. .au/welcome/whats_new/ ACT Bahai Centre, 9 December 2009 . countering_militancy_in_pakistan_conference/mr_moeen_ cheema/moeen_cheema_abstract) Sue and Hilary trained participants in the UNSW 18th Annual Human Rights & Peoples Diplomacy Training, Tony Connolly 2-3 December 2008 ‘Judicial Reasoning and the Acquisition of Concepts’ . Judicial Struggling for women’s rights in Afghanistan, Reasoning: Art or Science? Conference Proceedings, National South Asian Masala 10 September 2009 Judicial College of Australia: Canberra (2009) . ‘Grand plans’ Inside Story, May 2009 [domestic violence ‘The Objectives of Law Schools: What Are We Educating and child protection national action plans] Our Students For? . International Association of Law Schools ‘Why Australia should engage with the Durban Review Conference, ‘The Role of Law Schools and Law School conference’, Australian Policy Online (2009) (with Leadership in a Changing World’, Canberra, May, 2009 . Hilary Charlesworth) Susan Harris-Rimmer Australia’s Guantanamo Dilemma, opinion piece with Graduated from SJD December 2009 Eve Lester, ABC Unleashed, 5 February 2009 . Presenter, Surfacing Gender in the Constitution of Timor Some lawyers take cheap shots, some even work pro bono, Leste, The Constitution of Timor Leste Conference, opinion piece on the national human rights consultation, Trinity College Dublin, November 2008 . The Canberra Times January 2009 . Clear case for reform, opinion piece on the Clarke report
24 CIPL Newsletter November | 2009 into Dr Haneef incident, The Canberra Times, December 2008 . University of Pittsburg, School of law, providing commentary ALHR submission to the JSOM inquiry into the migration at a recent Forum on Law at Sea: Challenges Facing Japan’s treatment of disability, October 2009, hearing 28 October Anti-piracy Mission 2009 . Matthew Rimmer ALHR submission to the National Human Rights Consultation, ‘The Road to Copenhagen: Intellectual Property and 15 June 2009 . Climate Change’, The Journal of Intellectual Property Law Joint Standing Committee on Treaties inquiry into the text and Practice, November 2009, Vol . 4 (11), http://jiplp . of the Optional Protocol to the Convention on the Rights oxfordjournals .org/cgi/content/abstract/jpp148 of People with a Disability, (with Hilary Charlesworth, ‘Fair Use and Other Fantastic Beasts: In Search of Harry Andrew Byrnes and Andrea Durbach), March 2009 Potter’, Australian Intellectual Property Law Bulletin, Joint Committee on Foreign Affairs, Defence and Trade April 2009, Vol . 21 (9), p 188-192 . inquiry into Human Rights in the Asia Pacific region, (with ‘Remixing Canadian Copyright Law; A Review Essay on Hilary Charlesworth) 20 November 2008, evidence given on ‘An Emerging Intellectual Property Paradigm’, ‘Canadian 7 April 2009 http://www .aph .gov .au/house/committee/jfadt/ Copyright: A Citizen’s Guide’; and ‘RiP!: A Remix Manifesto’, asia_pacific_hr/subs/Sub%203 .pdf Prometheus, September 2009, Vol . 27 (3), p 297-305 . Joint Standing Committee on Treaties inquiry into the text ‘Media Futures; A Review Essay on “The Future of of the Optional Protocol to the Convention on the Reputation”, “TV Futures”, and “The Future of the Internet Elimination of All Forms of Discrimination Against Women and How to Stop It”’, Prometheus, September 2009, Vol . 27 of 18 December 1979 (with Hilary Charlesworth and (3), p 267-279 Andrew Byrnes), October 2008 . ‘Why So Serious?: Copyright Law, Fair Use, and Leighton McDonald Appropriation Art’, Core Computer Studies, School of Art, 22 October in Sydney to the Australian Association of ANU, 13 October 2009 . Constitutional Law, entitled ‘The Entrenched Minimum ‘23andMe: Google, Genetics, and Social Networking’, Provision of Judicial Review and the Rule of law’ . Global Health: Beyond the Millennium Development Goals, 21 August 2009 . Hitoshi Nasu ‘The Role of Fair Use in Creative Freedom’, Reimagining ‘Who Decides Who Is Responsible for the Wrongful Conduct Copyright for the 21st Century in Canberra at the of Peacekeepers?: Limits to Judicial Review by Domestic National Gallery, 6 August 2009 . Courts’, Public Seminar hosted by Australian Red Cross with ‘Copyright Law and Libraries’, National Library of Australia, the support of Mallesons Stephen Jaques on Accountability 30 July 2009 . of UN Peacekeepers: Monitoring the Monitors, Canberra, 7 July 2009 . ‘Intellectual Property and Climate Change: Inventing Clean Technologies’, Alabama Programme, 23 July 2009 . ‘Operationalising the “Responsibility to Protect” and Conflict Prevention: Dilemmas of Civilian Protection in Armed ‘Intellectual Property and Climate Change: Inventing Clean Conflict’, Public Seminar of the Centre for International Technologies’, The Duty to Invent: Intellectual Property and Public Law, The Australian National University College and Scientific Research, Workshop, Innovations Building, of Law, Canberra, 1 May 2009 . Canberra, 5 June 2009 . Hitoshi Nasu and Donald Rothwell, ‘Law at Sea: Challenges ‘Discussant on Copyright Law and Orphan Works’, Copyright Facing Japan’s Anti-piracy Mission’ Jurist, 25 March 2009, Future, Copyright Freedom, Old Parliament House, Canberra, available at
CIPL Newsletter November | 2009 5 Holcombe, S ., Rimmer, M . and T . Janke, ‘A Submission on the Skilton, Nyssa . ‘Global Rise in Pirated Software’, Hawke Interim report on the Environment Protection and The Canberra Times, 13 May 2009, p 6 . Biodiversity Conservation Act 1999 (Cth)’, August 2009, James, Paul . ‘World Book and Copyright Day’, China Radio http://www environment. .gov .au/epbc/review/comments/ International, 23 April 2009, http://english .cri .cn/7146/2009/ pubs/042-holcombe-rimmer-janke .pdf 04/23/1481s477703 .htm Rice, S . and M . Rimmer, ‘Law Reform and Social Justice: McLaren, Oscar . ‘Reform of Patent Law Underway’, Effectiveness of House Committees’, House Standing ABC Radio PM, 3 April 2009, http://www .abc .net .au/pm/ Committee on Procedure, July 2009, http://www .aph .gov . content/2008/s2534674 .htm au/House/committee/proc/committees2/index .htm Moses, Asher . ‘Vigilantes Publish Alleged Arsonist’s Holcombe, S ., Rimmer, M . and T . Janke, ‘Australia’s Image Online’, The Age and The Sydney Morning Biodiversity Conservation Strategy 2010-2020: A Submission Herald, 16 February 2009, http://www theage. .com .au/ to the National Biodiversity Strategy Review Taskforce’, articles/2009/02/16/1234632703992 .html May 2009, http://www environment. .gov .au/biodiversity/ strategy/review-submissions/pubs/id955-anupart1- Strickland, Katrina . ‘Broad Strokes of Concern About Art 01062009 .pdf Royalty Bill’, The Weekend Australian Financial Review, 7-8 February 2009, p 4 . ‘A Submission to the Senate Standing Committee on Community Affairs Inquiry into Gene Patents’, March 2009, Heather Roberts http://www .aph .gov .au/senate/committee/clac_ctte/gene_ ‘Swearing-in Speeches as indicators of Judicial Leadership’ patents/submissions/sublist .htm at the Public Law Weekend 1 November 2008 . ‘A Submission to the Joint Standing Committee on Treaties ‘Women Judges, ‘Maiden Speeches’ and the High Court of on the Agreement Between Australia and the European the Australia’ at the International Conference on Feminist Community on Trade in Wine 2009’, March 2009, Constitutionalism, Queens University, Kingston, Ontario, http://www .aph .gov .au/house/committee/jsct/ 28 February - 1 March 2009 3february2009/subs/sub7 .pdf House of Representatives Standing Committee on Climate Donald R Rothwell Change, Water, Environment and the Arts, ‘Inquiry into Discussing the Australian Government’s position with respect the Resale Royalty Right for Visual Artists Bill 2008 (Cth)’, to the death penalty in light of the anticipated executions in 6 February 2009, http://www .aph .gov .au/hansard/reps/ Indonesia of the ‘Bali Bombers’ (3 November 2008): commttee/R11596 .pdf (appearance by Dearn and Rimmer) . ABC Radio 936 Hobart ‘Drive’: 5 12pm. Dearn, R . and M . Rimmer, A Submission to the House of ABC Radio ‘PM’: 5 .35pm Representatives Standing Committee on Climate Change, Water, Environment and the Arts Inquiry into the Resale ABC Radio Australia ‘Asia Pacific’ Royalty Right for Visual Artists Bill 2008 (Cth), January SBS TV World News: 7 .05pm 2008, http://www .aph .gov .au/house/committee/ccwea/ 2CC Canberra ‘Drive’ 5 November 2008 at 5 .20pm discussing resaleroyalty/subs/sub031 .pdf and http://www .aph .gov . the Australian Government’s position with respect to the au/house/committee/ccwea/resaleroyalty/subs/sub031a .pdf death penalty in light of the anticipated executions in Martin, Steve, ‘Patentable Subject Matter’, ABC Ballarat, Indonesia of the ‘Bali Bombers’ 23 September 2009 . ABC Radio Australia/Radio National ‘Asia Pacific’ Just, Ingrid, ‘Copyright Infringement Action: the 8 November 2008 at 5 .05am discussing an attempt to Kookaburra song and the Men at Work Song, ‘Down Under‘, bring criminal charges of torture in New South Wales ABC Queensland, 25 June 2009 . against a visiting Chinese government official Gwynne, Peter, ‘Protecting IP - Anything But Simple’, ABC Radio ‘PM’ 12 November 2008 at 5 .35pm discussing the Scientific American Worldview, 2009, options open to the Obama Administration with respect to http://www .saworldview .com/article/protecting-ip- the US military detention facility at Guantanamo Bay and anything-but-simple1 how detainees may be legally treated Pauli, Darren, ‘Racial Hate Groups Erupt on Facebook’, 3AW ‘Afternoons with Derryn Hinch’ 19 November 2008 at Computer World, 12 June 2009, http://news .idg .no/cw/art . 5 .50pm discussing the hijacking by pirates of the supertanker cfm?id=D4BB7A36-1A64-6A71-CEA7973410417C30 Sirius Star off the coast of Somalia Skilton, Nyssa . ‘Human Rights Test Case for Gene Patents’, Peter Michael ‘Accused honeymoon killer will be brought The Canberra Times, 19 May 2009, p 6 . back to face trial’ Courier Mail 27 November 2008, p 7
26 CIPL Newsletter November | 2009 [discussing the possible extradition from the US of Gabe ‘Japan’s Whalers Defy Antarctic Laws—New Report’ Watson in relation to the death of his wife during a Scoop Independent News
CIPL Newsletter November | 2009 the legitimacy of Japan’s Southern Ocean whaling program international legal and political implications Claire Harvey ‘Whale crusade back on the warpath’ ABC TV2 ‘Breakfast’ 6 April 2009 at 7 .31am Hobart Mercury 24 January 2009 (Magazine, p 3) discussing SBS TV ‘World News’ 6 April 2009 at 7 .00pm the tactics of Sea Shepherd in the Southern Ocean SBS ‘World View’ 6 April 2009 at 5 11pm. Rosslyn Beeby ‘Japan rejects whaling compromise’ The Canberra Times 4 February 2009, p 2 discussing reports Discussing North Korea’s missile/rocket test and the that the IWC is considering a compromise that would permit international legal and political implications Japan to engage in limited whaling within its EEZ ABC Radio National ‘Asia Pacific’ 7 April 2009 at 5 .06am ABC Radio ‘The World Today’ 20 February 2009 at 12 47pm. ‘Mornings’ ABC Radio South East NSW, 9 April 2009 discussing the issues arising from a US Federal Court decision at 10 12am. discussing the testing by North Korea of a that the Uighur detainees at Guantanamo Bay, Cuba, did not missile/rocket and its implications for international law have a right of entry into the United States and international relations Discussing the seizure of evidence from the Steve Irwin Discussing the US response to the seizure of the Maersk following its arrival in Hobart and the potential for Australia Alabama off the coast off the coast of Somalia by pirates to investigate Japanese allegations regarding the conduct and its implications for international law: of the vessel in the Southern Ocean: ABC TV2 ‘Breakfast’ 13 April 2009 at 8 .23am Andrew Darby ‘Anti-whaling ship raided’ The Sunday Age ABC Radio 666 Canberra 13 April 2009 at 8 47am. 22 February 2009 ABC NewsRadio 13 April 2009 at 9 15am. David Barbeler and Andrew Darby ‘Greens want answers on anti-whaling vessel raid’ The Sun-Herald Discussing the US response to the seizure of the Maersk 22 February 2009, p 8 Alabama off the coast off the coast of Somalia by pirates and its implications for international law: Michael Stedman ‘Charges possible in whale inquiry’ The Mercury 24 February 2009, p 8 [discussing the potential Radio 2CC Canberra 14 April 2009 at 8 .05am for charges to be brought against Paul Watson as a result ABC Radio Capricornia (Rockhampton) 14 April 2009 at of investigations into the actions of the Steve Irwin in the 9 10am. Southern Ocean] ABC Radio 666 Canberra 14 April 2009 at 10 .05am 3CR Community Radio ‘Done by Law’ 10 March 2009 at ABC Radio JJJ ‘The Hack’ 15 April 2009 at 5 .32pm discussing 6 10pm. discussing the investigation by the AFP of the the legal regime of the Arctic and current disputes that exist Steve Irwin and possible consequences arising from this over resource rights and sovereignty action under Australian and international law CRI (China Radio International) English ‘People in the Know’ ABC Radio 666 Canberra ‘Mornings with Alex Sloane’ 16 April 2009 discussing the legal issues arising from recent 16 March 2009 at 9 .05am discussing the legal and policy incidents concerning piracy and how the international issues arising from the oil spill off the SE coast of Qld by community should respond to the issue the Pacific Adventurer ABC Radio ‘The World Today’ 20 April 2009 at 12 47pm. ABC Radio ‘PM’ 16 March 2009 at 5 40pm. discussing the discussing the legal issues arising from efforts to prosecute potential issues arising from Australia’s appearance before pirates for their actions off the coast of Somalia the UN Human Rights Committee ABC TV ‘The 7 .30 Report’ Monday, 20 April at 7 .38pm ABC Radio 666 Canberra ‘Drive’ 20 March at 5 .52pm discussing the application of Northern Territory law to the discussing diplomatic immunity and the issues arising in events that took place on Ashmore Reef and the sinking of Canberra with diplomats enjoying immunity from criminal a SIEV and the loss of 5 lives prosecution Discussing Australia’s border protection policies and regional ABC Radio 666 Canberra ‘Afternoons’ 23 March at 2 .07pm cooperation to deal with people smuggling [7 May 2009]: discussing the ANU College of Law’s success in the Copenhagen Climate Change Negotiation Competition ABC TV 2 ‘Breakfast’—8 .50am Jonathan Pearlman ‘Missile launch would blow apart ABC Radio 666 Canberra ‘Drive’—4 .07pm regional talks, Australia warns’ The Sydney Morning Herald ABC Radio Tasmania ‘Drive’—4 .20pm 4-5 April 2009, p 13 [discussing North Korea’s planned ABC Radio Australia ‘Pacific Beat’ 11 May 2009 at 12 16pm. missile launch and regional ramifications] ‘Wait for maritime boundary claim’ discussing the joint Discussing North Korea’s missile/rocket test and the submission of FSM, PNG and the Solomon Islands to the
28 CIPL Newsletter November | 2009 CLCS for an OCS claim Nicholas Stuart ‘China’s dragon stirs in spy tale’ The Canberra Discussing Australia’s option to take Uyghur detainees Times 14 July 2009, p 15 [discussing the legal options open from the US currently being held at Guantanamo Bay to the federal government in the Stern Hu case] [2 June 2009]: ABC 702 Sydney ‘Drive’ 15 July 2009 at 4 .08pm discussing ABC Radio News (various) the Prime Minister’s comments regarding the Stern Hu case ABC 666 ‘Drive’ at 4 .07pm ABC Radio ‘PM’ 15 July 2009 at 6 .25pm discussing Australia’s legal options to challenge the detention of Stern Hu in China Jonathan Pearlman ‘Uygur detainees: Canberra caught in diplomatic vice’ Sydney Morning Herald 3 June 2009, Discussing the possible application of Australian law to p 7 discussing the position of the Rudd Government in Stern Hu for actions amounting to bribery of a foreign considering a request to take Uighur detainees from the US governmental official (3 August 2009): SBS World News Australia—4 June 2009 6 .59pm discussing ABC Radio ‘The World Today’ 12 .23pm the Australian Government’s position regarding the request SBS TV World News 6 40pm. from the Obama Administration to take some Uyghur 2CC ‘Drive’ 5 12pm. detainees from Guantanamo Bay ABC Darwin 6 .03pm ‘The Guantanamo Refugees no one wants’ The Age 15 June 2009 p XX [discussing the plight of the Uighurs ABC 666 Canberra 6 .04pm being held at Guantanamo Bay by the US] Discussing the possible application of Australian law to Melanie Christiansen ‘New trial unlikely in Reef death case’ Stern Hu for actions amounting to bribery of a foreign The Courier Mail 16 June 2009, p 7 [discussing the prospect governmental official (4 August 2009): of double jeopardy as it may apply to the retrial in the US Philip Dorling ‘Legal expert backs China’s claims about of Gabe Watson] Hu’s “crimes”’ The Canberra Times 4 August 2009, p 5 Ashley Midalia ‘Scales of justice in combat zones’ Australian Brendan Nicholson ‘Hu could be charged under Australian Financial Review 25 June 2009, p 7 [discussing application law’ The Sydney Morning Herald 4 August 2009, p 4 of law to ADF military operations] SBS TV World News 6 .30pm, 10 August 2009 discussing Discussing the Australian Defence Force’s ‘act-of-grace’ the latest allegations China has made against the Rio Tinto compensation payments in Afghanistan (2 July 2009): executive Stern Hu ABC 666 Canberra ‘Mornings’ 11 48am. ABC Radio 666 Canberra ‘Mornings’ 11 August 2009, 9 45. ABC Radio ‘The World Today’ discussing the international legal and diplomatic issues associated with the ETS and the Copenhagen negotiations SBS TV ‘Dateline’ 5 July 2009, 8 .33pm discussing Australian military practice with respect to the investigation of civilian ABC Radio ‘AM’ 21 August 2009, 7 18am. discussing the deaths and injuries arising from military operations in position of an Indian national convicted of culpable driving Afghanistan in Victoria who has fled to India and the prospects for his extradition Joe Kelly ‘ADF quizzes its own over Afghan civilian casualties’ The Australian 6 July 2009, p 2 discussing Australian military 3AW ‘Afternoons with Derryn Hinch’ 21 August 2009, practice with respect to the investigation of civilian deaths 4 .07pm discussing the legal issues arising from Scotland’s and injuries arising from military operations in Afghanistan decision to release the convicted Lockerbie bomber, Abdelbaset al-Megrahi Discussing Australia’s response to the detention of Rio executive, Mr Stern Hu, in China: Ben Packham, Mark Buttler and Stephen McMahon ‘No Justice: Fugitive killers flee overseas and we can’t touch Nicola Berkovic ‘Turnbull presses PM to call Hu Jintao them’ Herald-Sun 22 August 2009, p 1, 4 (discussing the over arrest of Rio executive’ The Australian Online position of an Indian national convicted of culpable driving 9 July 2009 in Victoria who has fled to India and the prospects for ABC Radio ‘PM’ 9 July 2009 at 5 10pm. his extradition) Kim MacDonald and Andrew Tillett ‘Rio “spy” could get death Marissa Calligeros ‘Lockerbie release hurt Corby’ penalty’ The West Australian 11 July 2009, p 4 Brisbanetimes .com .au 25 August 2009 (discussing the Radio 2UE ‘Breakfast’ with Mike Carlton and Sandy Aloisi, prospects for release of Schapelle Corby from her Bali 13 July 2009 at 8 .07am discussing the Stern Hu case and prison and possible return to Australia) the diplomatic and legal options available to the Australian Discussing comments by Queensland Liberal MP endorsing government plus associated syndicated radio news reports torture in limited circumstances:
CIPL Newsletter November | 2009 9 3AW ‘Mornings with Neil Mitchell’ 26 August 2009, 4 November 2008, p 15 [discussing the diplomatic and legal 9 .25am options the Rudd Government should pursue in responding 4BC ‘Afternoons’ 26 August 2009, 3 .20pm to the anticipated execution of the Bali Bombers] Nick Butterly ‘Military justice in limbo after court ruling’ ‘War is a case for law’ The Canberra Times 10 January 2009, The West Australian 27 August 2009, p 12 discussing p B5 discussing the legal situation in Gaza, the international the implications of the ruling by the High Court that the humanitarian law and international criminal situation, and Australian Military Court was ruled as unconstitutional the potential for Israel to be accountable before the ICC Discussing Australia’s Military Justice system following the Hitoshi Nasu and Donald R . Rothwell ‘Different kind of High Court’s ruling in Lane v Morrison (28 August 2009): meltdown in view’ The Australian 6 April p 8 [discussing North Korea’s missile/rocket test and the international Radio Australia, at 8 46am. legal and political implications] ‘Military justice system in tatters’ New Zealand Herald ‘How the world needs to tackle pirates on the high seas’ ABC Radio 666 Canberra ‘News’ 31 August 2009, 2pm + The Canberra Times 13 April 2009, p 9 [discussing the various other ABC national radio news outlets; discussing response of the international community to ongoing whether an ANL owned ship may have breached UNSC pirate attacks off the coast of Somalia] Resolutions dealing with North Korea and the consequences ‘Jakarta part of solution’ The Australian 1 May 2009, p 12 under Australian law [discussing the capacity of Australia to utilise the Lombok Rod McGuirk ‘Executive expects no charges over NKorea Agreement with Indonesia to implement more effective weapons’ Associated Press Newswires 31 August 2009 measures to combat people smuggling] discussing whether ANL had broken Australian law given ‘Australia has a moral obligation to accept Uighurs’ effect to UN sanctions with respect to North Korea The Canberra Times 2 June 2009, p 11 [discussing Australia’s ABC Radio Gold & Tweed Coasts ‘Drive’ 1 September 2009 response to the request from the Obama Administration at 4 45pm. discussing recent comments by the Prime Minister to accept some Uighur detainees presently held at relating to the negotiation of a Prisoner Transfer Agreement Guantanamo Bay] with Indonesia and the case of Schapelle Corby Owen Cordes-Holland and Donald R . Rothwell ‘Better to ABC Radio ‘PM’ 9 September 2009 at 5 10pm. discussing the delay emissions Bill till after Copenhagen’ The Canberra decision by the Australian Federal Police to commence an Times, 11 August 2009, p 15 [discussing the international investigation into the 1975 death in Balibo, East Timor, of legal and diplomatic issues associated with the ETS and five Australian citizens at the hands of Indonesian forces the Copenhagen negotiations] ABC Radio Australia—10 September 2009 at 9 10am. Owen Cordes-Holland and Donald R . Rothwell ‘Time to discussing the decision by the Australian Federal Police to negotiate’ ABC On-line ‘Unleashed’ 13 August 2009 commence an investigation into the 1975 death in Balibo, www .abc .net .au/unleashed/stories/s2654603 .htm East Timor, of five Australian citizens at the hands of [discussing the international legal and diplomatic issues Indonesian forces associated with an emissions trading system and the Radio Adelaide ‘The Wire’ 15 September 2009, 5 .53pm Copenhagen negotiations] discussing the legal action brought by Mamdouh Habib ‘Capital Punishment and Diplomatic Protection: Australia’s in the Federal Court and the application of the act of Experience in Responding to its Citizens in Peril’ presented state doctrine at Lunchtime Seminar Series, School of Law, University of Naomi Levin ‘Concern over Israel war crimes changes’ Canterbury, Christchurch, New Zealand, 2 October 2008 The Australian Jewish News 17 September 2009, discussing ‘The Antarctic Treaty System and the Challenges of the recommendations of the Goldstone enquiry into war Responding to Japanese ‘Scientific’ Whaling’ presented crimes and crimes against humanity committed during at Christchurch Antarctic Festival 2008, Lyttelton Port of the 2008/2009 Gaza conflict Christchurch, Christchurch, New Zealand, 3 October 2008 Acting Director, Centre for International and Public Law ‘The Yes Case’ presented at The Socratic Forum: ‘That the (February – July 2009) responsibility to protect must override national sovereignty’ Vice-Chancellor’s Award for Community Outreach— John Curtin School of Medical Research, The Australian The Australian National University (2008) National University, Canberra, 30 October 2008 National Administrator—Philip C . Jessup International Law ‘Towards an Arctic Treaty Regime’ presented at Melting the Moot Court Competition—2009 Australian Regional Rounds political ice? Recent developments in the Arctic Conference, British Institute of International and Comparative Law, ‘Apathy is not an option’ The Canberra Times, London, 28 November 2008
30 CIPL Newsletter November | 2009 ‘A New Legal Regime for the Arctic’ presented at Arctic Immigration [2009]AATA 539 (21 July 2009) Change 2008 Conference, Quebec City, Quebec, Canada, Referred to in Hansard on Tuesday 15th September 2009 11 December 2008 in the Senate in a speech by the Minister for Immigration ‘Maintaining a Dialogue: Lights, Camera, Mobile Phones, and Citizenship, Senator Chris Evans . the News Cycle and the Law’ presented at Law and Change: Lecture to U3A meeting on Dual Citizenship with Exploring the role of legal research in law reform and social Dr Mark Nolan Tuesday 18th August 2009 justice, The Australian National University Postgraduate Law Conference, ANU College of Law, Canberra, 11 June 2009 Presented to ACT Schools Constitutional Convention 2009 Co-Convenor—Responding to Contemporary Challenges and Presented the paper Mandating Equal Power: Form and Threats to Antarctic Security: Legal and Policy Perspectives Substance in the Australian Constitution to the ANU College Colloquium, University of Canterbury, Christchurch, of Law’s conference on the 25th Anniversary of the New Zealand, 6-7 July 2009 Sex Discrimination Act, 2 October 2009 Alan Hemmings and Donald R . Rothwell ‘Military Operations Interviewed by Radio 2SER Sydney The Wire—on the within the Antarctic Treaty Area’ presented at Responding to new citizenship test—20 October 2009 Contemporary Challenges and Threats to Antarctic Security: Daniel Stewart Legal and Policy Perspectives Colloquium, University of Canterbury, Christchurch, New Zealand, 6-7 July 2009 With George Barker, ‘Intellectual Property 2 .0: The Role of Intellectual Property in the New Digital Economy’ Canadian ‘Shall not become the Scene or Object of International Law and Economics Association Annual Conference, Discord: Is Southern Ocean Security Compatible 2-3 October 2009 . with National Interests?’ presented at Responding to Contemporary Challenges and Threats to Antarctic Security: ‘Openness in Government: The Legal Obstacles to achieving Legal and Policy Perspectives Colloquium, University of real reform’, ANU / Minter Ellison Legal Update Seminar, Canterbury, Christchurch, New Zealand, 6-7 July 2009 24 July 2009 . ‘Capital Punishment and Diplomatic Protection: Australia’s Experience in Responding to its Citizens in Peril’ Kirby Seminar, School of Law, University of New England, Armidale, NSW, 14 July 2009 ‘The International Environmental Discourse over the Future Management of the Polar Regions’ presented at CIPL-ACEL Environmental Discourses Workshop, ANU, Canberra, 13-15 August 2009, 18pp ‘The Torres Strait Regime of Compulsory Pilotage: Testing the Limits of the Law of the Sea?’ presented at Canadian Council of International Law Annual Conference, Ottawa, Canada, 14-16 October 2009 Kim Rubenstein Presented two papers during her sabbatical on her work on the Biography of Joan Montgomery AM OBE—one to the Humanities Research Institute at ANU and one at the National Library of Australia Invited to join the Editorial Board of the Global Constitutionalism journal . Made a submission to the Senate Standing Committee on Legal and Constitutional Affairs’ Inquiry into the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 and her submission was cited throughout the report . Appeared in two AAT citizenship matters . One of the cases has received judgment - See SNMX v Minister for
CIPL Newsletter November | 2009 1 CENTRE STAFF & MEMBERS . Kim Rubenstein, Professor and Director . COAST, Administration & Events . Glenda Waddell, Assistant Editor, Australian Year Book of International Law
. Amanda Alexander, PhD Candidate (RegNet) . Kent Anderson, Professor (Asian Studies) . Don Anton, Senior Lecturer (on leave from July 08) . Hafiz Aziz-Ur-Rehman,PhD Candidate . Peter Bailey AM, OBE, Adjunct Professor . Helen Bermingham, Assistant Lecturer . Kevin Boreham, Lecturer . Simon Bronnitt, Professor . Peter Cane, Professor . Hilary Charlesworth, Professor & ARC Federation Fellow, Director of Centre for International Governance & Justice (RegNet CIGJ) . Moeen Cheema, Teaching Fellow . Jennifer Clarke, Senior Lecturer (on leave from July 2008) . Tony Connolly, Senior Lecturer . Michael Coper, Professor and Dean . Robin Creyke, Professor and Alumni Chair of Administrative Law . Dominique Dalla-Pozza, Associate Lecturer . Lynn Du Moulin, Lecturer (Part Time) . Thomas Faunce, Associate Professor . Jeremy Farrall, Research Fellow, (RegNet CIGJ) . Jean-Pierre Fonteyne, Senior Lecturer . Jo Ford, PhD Scholar, (RegNet-CIGJ) . Don Greig, Visiting Fellow and Emeritus Professor . Laura Grenfell, PhD Candidate (RegNet) . Kath Hall, Senior Lecturer . Susan Harris-Rimmer, Research Officer (RegNet,CIGJ) . Sarah Heathcote, Senior Lecturer . Vivian Holmes, Senior Lecturer . Brad Jessup, Teaching Fellow . Judith Jones, Senior Lecturer . Ann Kent, Visiting Fellow . Linda Kirk, Graduate Student . Wendy Kukulies-Smith, Teaching Fellow . Joanne Lee, PhD Candidate . Leighton McDonald, Associate Professor . Alison McLennan, PhD Candidate . John McMillan, Professor (on leave) . Anne McNaughton, Lecturer . Anne MacDuff, Lecturer & PhD Candidate . Penelope Mathew, Reader (on leave) . Rebecca Monson, PhD candidate . Wayne Morgan, Senior Lecturer . Hitoshi Nasu, Lecturer . Molly Townes O’Brien, Associate Professor . Louise Parrott, PhD Candidate . Dennis Pearce AO, Visiting Fellow and Emeritus Professor . James Prest, Lecturer . Peter Prince, PhD Candidate . Simon Rice OAM, Associate Professor . Heather Roberts, Lecturer . Donald R Rothwell, Professor of International Law . Gabrielle Simm, PhD Candidate (RegNet) . Amelia Simpson, Senior Lecturer (on leave) Centre for International and Public Law . Achmad Gusman Catur Siswandi, PhD Candidate ANU College of Law . Adérito Soares, PhD (RegNet) . James Stellios, Associate Professor The Australian National University . Daniel Stewart, Senior Lecturer CANBERRA ACT 0200 . Felicity Tepper, PhD Candidate . Fiona Wheeler, Professor . Ben Wickham, Lecturer T: +61 (02) 6125 0454 . Ernst Wilheim, Visiting Fellow . George Williams, Visiting Fellow F: +61 (02) 6125 0150 . Katie Young, Research Fellow(RegNet) E: cipl law@anu. edu. .au . Matthew Zagor, Lecturer . Leslie Zines, Visiting Fellow and Emeritus Professor W: http://law .anu edu. .au/CIPL