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Showing papers in "Melbourne Journal of International Law in 2015"


Journal Article
TL;DR: In this article, the International Court of Justice defined a duty to cooperate for states, international organisations and other actors in a fragmented legal order, especially in complex commons or shared-resource regimes involving scientific and technical matters updated through institutional or administrative arrangements.
Abstract: International courts and tribunals face a special challenge when the treaty underlying a dispute was agreed in a distant past. How does (and should) the judicial branch allow for an evolution of international law that is responsive to major legal and social changes whilst remaining faithful to the intention of the treaty parties? We argue that there are two main methods: first, adjudicators may allow for evolution through treaty interpretation, for example by drawing on a treaty's object and purpose or subsequent practice; secondly, adjudicators may focus on the institutional specifics of the relevant regime to which the treaty belongs, for example by drawing on the obligations of parties to give due regard to emerging resolutions even if they are not binding. In resolving the dispute between Japan and Australia (New Zealand intervening) over whaling in the Antarctic, the International Court of Justice engaged primarily with the second method, focussing particularly on procedural arrangements overseen by the International Whaling Commission. This article demonstrates that the Court's formulation of a 'duty to cooperate' has major implications for states, international organisations and other actors in a fragmented legal order, especially in complex commons or shared-resource regimes involving scientific and technical matters updated through institutional or administrative arrangements. We evaluate related developments in the law of the sea, water management and climate regimes.

12 citations


Journal Article
TL;DR: In this paper, the authors argue that acts of Greek and Frontex agents may lead to individual responsibility for crimes against humanity under Rome Statute of the International Criminal Court arts 7(1)(e), (h) and (k).
Abstract: In recent years, Greece has inflicted widespread inhuman and degrading treatment on asylum seekers. The European Union border agency Frontex has knowingly exposed asylum seekers to such treatment in Greek detention centres. This article argues that acts of Greek and Frontex agents may lead to individual responsibility for crimes against humanity under Rome Statute of the International Criminal Court arts 7(1)(e), (h) and (k). Investigation of such acts remains unlikely, not due to the relevant doctrine, but due to a popular imagination of crimes against humanity as radically evil acts. But international criminal law should not only aim to punish radically evil acts. Equally important is seemingly banal violence that appears as an inevitable by-product of global social and economic structures. Such is the violence currently wielded against asylum seekers. Confronting the latter category requires the International Criminal Court Prosecutor to realise the political nature of his or her judgement.

10 citations


Journal Article
TL;DR: In this paper, the authors argue that temporary status is not inherently incompatible with the Refugee Convention and that the temporary status does not require permanent protection, while the Convention does not license the Australian Government's plans to leave recognised refugees in a state of perpetual uncertainty.
Abstract: CONTENTS I Temporary Protection and the Refugee Convention II The Development of Temporary Protection in International Law and Practice III Temporary Protection Australian Style A The Evolution of Temporary Protection Schemes in Australia B Controlled Protection: The 'Temporary Safe Haven' Concept C Playing Games with Names: Recent Initiatives to Reintroduce Temporary Protection D The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) IV Towards a Convention-Compliant Temporary Protection Regime A Australia's Use of Temporary Protection is Exceptional B The Content of Refugee Rights Following the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) ("Legacy Caseload Act') in December 2014, Australia once again has acquired a formal temporary protection regime for persons recognised as refugees. This article addresses the contested issue of how temporary protection as a concept squares with obligations assumed by states under the Convention relating to the Status of Refugees ("Convention"). We argue that temporary status is not inherently incompatible with the Convention. However, we note that this instrument does much more than simply create the obligation of non-refoulement. It confers a range of rights on refugees which must inform the necessary content of a temporary protection regime. Examining temporary protection in international law and practice, we compare Australia's use of the concept. The article reviews various iterations of temporary protection devised by Australia over the years. It has come not only in the form of temporary protection visas. A range of visas and other devices have been used to provide de facto temporary protection. The article concludes by reflecting on what a Convention-compliant temporary protection regime could look like, focusing on the two forms of temporary protection visa introduced by the Legacy Caseload Act. Ultimately, while the Convention may not require permanent protection, it does not license the Australian Government's plans to leave recognised refugees in a state of perpetual uncertainty. I TEMPORARY PROTECTION AND THE REFUGEE CONVENTION The United Nations Convention relating to the Status of Refugees ('Refugee Convention' or 'Convention'), as modified by the 1967 Protocol of the same name, (1) is a fairly unique achievement of multilateral post-conflict diplomacy. In the face of the primordial sovereign right of states to determine membership of their own societies, the Convention enshrined an obligation in states party not to refoule or send back 'refugees' (as defined) to situations where they face persecution. (2) For refugees on the territory or under the control of a state party, the instrument went on to create a litany of obligations for states (and corresponding rights for refugees). As we will explore, these vary according to the nature and extent of the refugee's connection with a 'receiving' state. By way of compromise, the Refugee Convention remained silent on the issue of the refugee's right to enter a country of asylum. (3) It also qualified the refugee's right to protection with provisions that acknowledge the right of states to national security and the safety of their own nationals. (4) As Australia moves to reintroduce temporary protection visas ('TPVs'), (5) there has been a tendency for proponents on both sides of the policy debate to engage in a selective reading of the Refugee Convention. At one extreme are those who seem to acknowledge only the non-refoulement obligation, seeing refugee status as a privilege that yet confers no real 'rights' on refugees. (6) At the other are those who posit that the grant of temporary protection to refugees is necessarily antithetical to the protection tenets of the Refugee Convention. (7) In this article we advocate a middle road between these two poles. …

9 citations


Journal Article
TL;DR: In this article, the authors explored the benefits and challenges of involvement by international non-governmental organisations ('NGOs) in the Universal Periodic Review of 12 Pacific Island states before the United Nations Human Rights Council.
Abstract: Contents I Introduction II The Universal Periodic Review and the Pacific: An Overview A Human Rights Challenges in the Pacific B Strengths of the UPR Process C Limitations of the UPR Process III The Role of NGOs in the UPR A NGO Input into the UPR Process B Do NGO Submissions Matter? IV Involvement of NGOs in the UPR of Pacific States A Stakeholder Submissions B Who Are These International NGOs? C Stakeholder Plenary Statements V Exploring the Role of International NGOs A Benefits of Involvement of International NGOs B Challenges concerning the Role of International NGOs VI How Can International NGOs 'Do Good Better'? VII Conclusion This article explores the benefits and challenges of involvement by international non-governmental organisations ('NGOs) in the Universal Periodic Review ('UPR) of 12 Pacific Island states before the United Nations Human Rights Council. An interesting feature of NGO involvement in the UPR for Pacific states is that, in most cases, the number of submissions from international NGOs exceeds the number of submissions from national Pacific NGOs. International NGOs therefore have a significant input into the UPR for Pacific states. This article queries whether the dominance of international NGOs has a distorting effect, such that Pacific perspectives on current human rights challenges are not being heard in Geneva. The article considers what steps might be taken so that international NGOs 'do good better' in order to contribute to the ultimate goal of the UPR--improving the human rights situation on the ground in the Pacific. I INTRODUCTION Pacific Island states have traditionally had minimal engagement with United Nations human rights mechanisms. They have a comparatively low rate of ratification of the core human rights treaties and, where treaties have been ratified, states are often overdue with their periodic reports. Most Pacific states do not maintain permanent diplomatic representation in Geneva. In this context, the active and open engagement of Pacific states in the UN Human Rights Council's ('HRC') Universal Periodic Review ('UPR') is a welcome development. In addition, a number of national non-governmental organisations ('NGOs') based in the Pacific have taken the opportunity to make stakeholder submissions for the review of their state. For many, this marks their first ever involvement with a UN human rights mechanism. Again, this is a very welcome development. This article considers the input of international NGOs into the 18 reviews to date of 12 Pacific Island states. The states reviewed are the island members of the Pacific Islands Forum who are also UN members. (1) These are (in order of their review) Tonga, Tuvalu, Vanuatu, Fiji, Kiribati, Marshall Islands, Federated States of Micronesia ('FSM'), Nauru, Palau, Solomon Islands, Samoa and Papua New Guinea ('PNG'). All states have been reviewed once during the first UPR cycle, and the first six have had their second review, with Marshall Islands reviewed most recently in May 2015. To date, the number of stakeholder submissions has ranged from three on Tonga and Tuvalu II to 17 on Fiji. An interesting feature of the stakeholder submissions is that, for most states, the number of submissions from international NGOs exceeded the number of national NGO submissions. International NGOs therefore have a significant input into the Office of the High Commissioner for Human Rights' ('OHCHR') stakeholder summary for Pacific states and thus into the UPR itself. This article queries whether the involvement of international NGOs has a distorting effect such that perspectives of Pacific civil society on current human rights challenges are not being heard in Geneva. The article explores the undoubted benefits of NGO involvement in the UPR of Pacific states, and considers what steps might be taken to facilitate a deeper and more productive relationship between national Pacific NGOs and international NGOs in order to better contribute to the ultimate goal of the UPR--'improvement of the human rights situation on the ground' (2) in the Pacific. …

8 citations


Journal Article
TL;DR: In the first year of the conflict, the implementation of the responsibility to protect was again, after Libya and Syria, found wanting as mentioned in this paper, and the United Nations Security Council expressed its grave concern, however, such preventive actions as it took were too little and too late to stem the human catastrophes.
Abstract: Since the beginning of ethnic and religious conflicts in South Sudan and the Central African Republic in early 2014, it has been clear that crimes against humanity have been committed in both nations by all parties. This intra-state violence has resulted in the loss of thousands of lives, many thousands of injuries, grave human rights abuses and humanitarian crises of dramatic proportions. Pursuant to the new political doctrine of 'the responsibility to protect', the two states ' failure to assume responsibility for the protection of the human rights of their peoples might have been expected to trigger the international community's broader responsibility to intervene to prevent the further commission of mass atrocities. While the United Nations Security Council expressed its grave concern, however, such preventive actions as it took were too little and too late to stem the human catastrophes that unfolded. This article describes and analyses both conflicts, examines the international community's responses through the UN and associated regional organisations and seeks to explain why, at least in the first year of the conflict, the implementation of the responsibility to protect was again, after Libya and Syria, found wanting. CONTENTS I Introduction II South Sudan III Central African Republic IV The Responsibility to Protect A The Africa Factor B Peacekeepers C Regional Considerations D South Sudan E Central African Republic F International Considerations V R2P: Missing in Action? VI Conclusion I INTRODUCTION How bad does it have to get before we act? Have we not learned by now from other conflicts that the longer they are ignored or neglected, the harder and costlier they become to solve? The Central African Republic is like some poor orphan right now, but in fact what it needs more than anything is to be adopted; for an authority to take on the role of leading international efforts to restore it to good order. ... How is it possible for an entire country to become forgotten? That is the question I heard time and again from people living in mortal fear ... How did the world forget about us? (1) In December 2013, violent internal conflicts broke out in two Central African countries: South Sudan and the Central African Republic ('CAR'). Within weeks it was clear that crimes against humanity and war crimes were being committed with impunity by all sides, in both places. Thousands were killed within a month. The significant majority of these were innocent civilians. The United Nations had peacekeeping and monitoring missions in South Sudan and CAR but neither had predicted an outbreak of violence and the commission of mass atrocities on the scale that occurred so precipitately. Both were completely overwhelmed, being reduced almost instantly to undertaking a residual, albeit critical, role in protecting civilians by housing and shielding them in UN facilities. All the preconditions for the international community, through the Security Council ('the Council'), to take action to halt the violence in accordance with the 'responsibility to protect' ('R2P') doctrine were present. And yet, 12 months later, fighting continued to spiral out of control and international crimes continued unabated. This article seeks to explain how and why the community of nations failed in its sincere but flawed endeavours to stop the criminal violence. In doing so, it is hoped that valuable lessons--conceptual and practical--may be learned, to strengthen strategies for atrocity prevention in the future. (2) II SOUTH SUDAN The world's newest nation, South Sudan, fell apart in a week in December 2013. In the preceding month, existing tensions between the principal factions in the ruling administration, the Sudan People's Liberation Movement ('SPLM'), had increased dramatically. (3) In early December, the former Vice-President, Riek Machar, had publicly accused the President, Salva Kiir, of acting unilaterally and dictatorially. …

6 citations


Journal Article
TL;DR: In particular, the meaning of some terms in art XX may be capable of evolution as mentioned in this paper, based on the view that certain generic treaty terms were intended to keep pace with evolving societal values and the law in force at any given time.
Abstract: 1 How Broadly Can the Terms of Article XX be Read? The DSS is not a precedential system; its rulings cannot 'add to or diminish the rights and obligations' of the members under the WTO agreements. (100) Nevertheless, prior opinions of the AB carry considerable weight and 'a quick read of any panel or Appellate Body report shows extensive citation to prior reports'. (101) Twenty years of WTO jurisprudence has given ground for some expectation that the terms of art XX may be read expansively, applying 'customary rules of interpretation', as stipulated by DSU art 3(2). Article 31(1) of the VCLT requires that treaties must be 'interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose'. Article 31(1) thus provides a lens through which WTO provisions may be read in light of contemporary norms (including those captured in international treaties), without needing to clear the hurdles posed by art 31(3)(c), discussed above. Over the past 20 years, the AB has shown it is capable of reading art XX broadly. In particular, it is clear that the meaning of some terms in art XX may be capable of evolution. This 'evolutionary approach' is premised on the view that certain generic treaty terms were intended to keep pace with evolving societal values and the law in force at any given time. (102) Two such are the terms 'public morals' in art XX(a) and 'natural resource' in art XX(g). The AB in US--Shrimp held that the Panel had wrongly failed to apply this approach to its interpretation of the phrase 'exhaustible natural resource' in art XX(g). (103) According to the AB, the generic term 'natural resources' in art XX(g) is not 'static' but 'by definition, evolutionary'. (104) In order to obtain a contemporary meaning, the AB referred to a range of international conventions and reached the interpretive conclusion that all natural resources, living and non-living, were included in the term. (105) This interpretive approach indicates that, for generic terms, other international norms may be admitted to aid the interpretive process. On this basis, it could be argued that adjudicators must assess the contemporary context of a country's imposing, for example, a measure to protect public morals. The Panel in United States--Measures Affecting the Cross-Border Supply of Gambling and Betting Services ('US--Gambling') stated that 'the term "public morals" denotes standards of right and wrong conduct maintained by or on behalf of a community or nation'. (106) In China--Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, the Panel treated the term public morals as an evolutionary one, observing that 'the content and scope of the concept of "public morals" can vary from Member to Member, as they are influenced by each Member's prevailing social, cultural, ethical and religious values'. (107) With regard to human rights specifically, James Harrison points out that 'public morals' is a particularly broad term within which 'the full range of human rights norms and principles that are codified in international legal instruments' could properly fall. (108) His view is that WTO jurisprudence suggests that WTO panels and the AB would be likely to take a flexible approach to the definition of the phrase. Robert Howse has also argued that it would be very difficult to sustain an argument that the norms and standards of international human rights law should be excluded from our understanding of what is meant in the contemporary context by public morals. (109) The question remains unresolved, even after the EC--Seal Products dispute. The Panel in that case found that the welfare of seals was an issue of a moral nature in the European Union and, hence, that the measure was one to protect public morals, but the Panel 'did not determine the moral content' of the indigenous exception in the measure. …

6 citations


Journal Article
TL;DR: The work of Milanovic et al. as mentioned in this paper explores the translation of human rights into digital contexts and argues that human rights law is being used in a meaningful way in the face of complex technological change and our fears regarding the reality of mass surveillance and big data analytics.
Abstract: This commentary focuses on the United Nations General Assembly's Resolution 68/167 on the right to privacy in the digital age and continuing developments in this area. The key questions I explore are whether such developments are welcome, and whether human rights law is being used in a meaningful way in the face of complex technological change and our fears regarding the reality of mass surveillance and big data analytics. To do so I offer commentary and critique of the present articulation of a right to privacy in the digital age and consider broader theoretical and doctrinal difficulties associated with privacy. The idea of digital privacy connects with a broader project--the digital rights movement--and engages questions regarding the translation of human rights into digital contexts. The commentary moves to consider the work of Marko Milanovic and Fleur Johns to illuminate the tensions and possibilities in this developing field. A right to digital privacy is one strategy to address concerns in the aftermath of the National Security Agency surveillance scandal, but ultimately a much larger question regarding liberty and collective political resistance is involved. CONTENTS I Introduction II A Right to Digital Privacy? III Further Developments IV Defining and Containing Privacy V The Internet and Privacy--New Means of Invasion and Old Forms of Regulation? VI Conclusion I INTRODUCTION In the wake of revelations that the United States and the United Kingdom had conducted mass surveillance programs of their own and others' citizens, and shared much of the data with select allies and cooperating intelligence agencies ('the Snowden revelations'), (1) it was reported that sales of George Orwell's classic examination of the surveillance state, 1984, had surged. (2) The Big Brother of science fiction had taken contemporary form and significance. Along with this literary revival, the response to the National Security Agency ('NSA') surveillance scandal has been accompanied by a renewal of interest in privacy as a human right. This prompts the question whether a right to privacy can help us analyse and regulate against the incursions on liberty which have been increasingly routinised in our daily ritual usage of information and communications technologies and in the harvesting, accumulation and analysis of big data by our governments, communities, corporate actors and employers. We used to think that Big Brother would always take the form of the state in Orwellian terms. Then slowly commentators pointed to the dangers posed by transnational actors and companies: why were we worried about our governments when our local supermarket or our internet service or phone provider held incredibly sensitive personal information about us? The Snowden revelations point to yet another variation on this theme: that public and private actors now both act in ways which are potentially invasive and detrimental to our liberty, and often do so together. This commentary focuses on the United Nations General Assembly's Resolution 68/167 on the right to privacy in the digital age, the issues arising from Resolution 68/167 and continuing developments in this area. (3) The key questions I explore are whether such developments are welcome, and whether human rights law is being used in a meaningful way in the face bf complex technological developments and our fears regarding the reality of mass surveillance and big data analytics. There are many ways in which these issues can be explored and this article aims to contribute to a deeper conversation within international law scholarship regarding 'digital privacy' and the translation of rights to 'online' contexts. I draw on some domestic developments where necessary, but do not seek to provide either a grand theory of digital privacy or a doctrinal analysis which holds the human rights line that there are laws X and Y and they have been violated in context Z. …

5 citations


Journal Article
TL;DR: In this paper, the authors examined the efficiency of the current anti-hooligan tools and the role of clubs and the FA in the fight against hooliganism in English football.
Abstract: C Measures Managed by the Clubs/the League 1 General To the extent that it can be assumed that the legislation passed by the British Government was effective in reducing hooliganism, (210) measures implemented by the clubs may similarly be assumed to have contributed (either in combination or in isolation) to this decrease. (211) One important measure that clubs have implemented is a significant increase in ticket prices. (212) This changed the demographic of spectators at football matches by excluding from stadiums certain categories of spectators whilst attracting others. (213) Currently, spectators include more middle class people and fewer young, white men from the lower income social groups. (214) A recent survey of the Premier League has also shown that 23 per cent of fans are now women and 11 per cent belong to ethnic minorities. (215) This phenomenon, combined with a large number of regular season ticket holders who have allocated seats (and who can therefore be more easily identified if they misbehave), contributed to make the environment in stadiums more predictable and orderly. (216) Similarly, as already mentioned, clubs have power to impose stadium bans, sometimes for life. (217) However, most English clubs seem reluctant to introduce schemes that require greater contact between fans and club officials, or to develop socio-preventive projects (known as 'fan coaching' in mainland Europe). (218) For its part, the FA imposes certain obligations on clubs and organisers of sporting events, some of which are modelled on state laws. (219) The FA has also introduced an official supporters' club, where applicants give permission for background checks for criminal records and other football-related misbehaviour in exchange for being given priority when buying tickets for England matches overseas. (220) Furthermore, the FA sometimes accommodates ad hoc measures, such as campaigns for good behaviour and fair play and appeals for the public and media to identify troublemakers. (221) As with the State's reforms, the measures taken by the clubs and the League to fight hooliganism have not been spared from criticism. 2 Main Criticisms The increase in ticket prices, which had the effect of excluding certain categories of people and, according to some observers, tarnishing the atmosphere in the stadiums, is often seen negatively. (222) It is also argued that, using the example of Germany, alternatives exist to measures such as higher ticket prices and all-seated stadiums. Germany, although less affected by hooliganism, has managed (through large standing areas and controlled seat prices) to attract on average 7000 more supporters per game, including a higher proportion of women and young fans, than the English Premier League games. (223) The English clubs' poor investment in fan coaching measures is also criticised. (224) Finally, it is noted that the criticisms about the state banning orders based on civil liberties and human rights grounds are not relevant in relation to the bans implemented by the clubs. These bans are strictly a matter of contract (paying to watch a football match) and property law. Bans imposed by a club do not compromise the individual's liberty to move about in public or to leave the country. It is therefore not a human rights issue. (225) It is now necessary to examine the efficiency of the current anti-hooligan tools. D Efficiency of the Current Tools Regardless of the outcomes that have followed the measures described above, it is clear that English hooliganism has not completely disappeared. (226) During the last 10 years, various major incidents concerning English fans have occurred in England (227) and abroad. (228) Nevertheless, the total number of people arrested in connection with all international and domestic football matches involving teams from, or representing, England and Wales has steadily been declining since the early 1990s, from 6378 cases for the 1991-92 season, to 4400 in 1996-97, 3089 in 2010-11 and to 2456 in 2012-13. …

5 citations


Journal Article
TL;DR: In this paper, the authors argue that an ability to experience emotions, compassion and connection to citizens of the adversary's state are central to good targeting decisions, and that these qualities enable the soldiers to distinguish civilians from individuals who take a direct part in hostilities.
Abstract: C An Ability to Experience Emotions and Compassion Human Rights Watch ('HRW') (303) and Robert Sparrow (304) argue that an ability to experience emotions, compassion and connection to citizens of the adversary's state are central to good targeting decisions. Similarly, Lieutenant Colonel Jorg Wellbrink believes that feelings, empathy and intuition are vital for understanding the situation on the battlefield. (305) Although the rules of targeting do not directly address the role of emotions and compassion in decision-making, it would be strange if the rules did not assume the decision-makers to have this capacity. The ICJ articulated in the Nuclear Weapons Case that a 'great many' IHL rules are 'fundamental to the respect of the human person' and reflect 'elementary considerations of humanity'. (306) It would be odd if states did not expect the decision-makers, who determine what verification measures to use, whether to use lethal force, what weapons to employ and whether an attack is proportionate, to understand and to experience respect for other human beings. Emotions and empathy allow individuals to have respect for the life and dignity of other persons. Wagner's scenario of boys playing with a ball, (307) which has already been described, lends support to HRW's assertion (308) that the possession of emotions and compassion enables the soldiers to distinguish civilians from individuals who take a direct part in hostilities. In this particular scenario, soldiers will be able to identify with the feelings of fear that a parent who sees children running towards a soldier experiences. This is because they can imagine what it is like to be in their position. Because the man with a dagger in this scenario poses no threat to the soldiers or their colleagues, the soldiers are in a position to abstain from firing at the adversary. Of course, the possession of emotions and compassion may be less relevant to identifying military objectives which have a distinct appearance or signature, such as a tank or another LAR. Nevertheless, since the purpose of the forces is to kill or destroy as many lawful targets as possible, an LAR which could be employed against the whole array of possible targets would need to possess these qualities. Another value of the ability to experience emotions and compassion is that the possession of these qualities lead soldiers to assume a risk of injury when faced with a decision of whether to open fire, in circumstances when they are not sure whether the person is taking a direct part in hostilities or not. The soldiers abstain from firing in such situations because they perceive the death of an individual who does not pose a threat to them as a tragic loss. This sensitivity stems from the ability of the soldiers to identify with the feeling of bereavement which the family and friends of the deceased experience. A counterargument would be that the diaries of soldiers reveal that whilst some soldiers felt pain at the time they killed the enemy, (309) others felt pleasure and the satisfaction of winning. (310) A response to this observation would be that those soldiers who viewed fighting as a thrill took the horrors of war more seriously than civilians who were located far away from the combat zone. (311) These soldiers experienced trauma after combat was over. (312) When soldiers captured prisoners of war, they felt sympathy for those individuals. (313) Moreover, in 2011 the psychologists of the US Air Force completed a mental health survey of 600 drone pilots. (314) They found that 20 per cent of the pilots reported emotional exhaustion or burnout due to seeing death, despite not being physically present on the battlefield. (315) This information suggests that human beings feel compassion for each other, but that this feeling may become displaced when an individual encounters someone who poses mortal danger to him or her. Just because soldiers experience mixed emotions when killing another soldier (316) does not mean that they do not feel compassion for civilians. …

5 citations


Journal Article
TL;DR: SAS v France as mentioned in this paper was the first case in which the European Court of Human Rights (ECtHR) accepted vivre ensemble as a limitation on the protection of the rights and freedoms of others.
Abstract: Contents I Introduction II SAS v France: Facts and Proceedings A Facts B Proceedings III The Unconsidered Limitation Ground: Ordre Public A The 'Absence' of Ordre Public Arguments in SAS v France B From Ordre Public to the Rights and Freedoms of Others in 'Headscarf Cases' C Ordre Public Arguments under the Rights and Freedoms of Others in Other Cases IV Implications for the Future V Conclusion This case note comprises a review of the European Court of Human Rights' ('ECtHR ') judgment in SAS v France which upheld the French 'burqa ban'. I focus on the ECtHR's acceptance of a French societal principle, vivre ensemble, as a limitation on the rights to privacy and freedom of religion covered by the limitation ground of 'the protection of the rights and freedoms of others 1 argue that, contrary to what a number of authors have proposed, the ECtHR did not take a new approach to 'the rights and freedoms of others' in SAS v France. Rather, as I demonstrate with the help of the 'headscarf cases' leading up to the judgment and other cases in which the ECtHR sanctioned reliance on fundamental societal principles, SAS v France further establishes an emerging trend at the ECtHR to bring in what are essentially ordre public (public order) arguments under human rights provisions which do not contain an ordre public limitation ground via their inclusion under 'the rights and freedoms of others'. I INTRODUCTION Voted worst judgment of 2014 by Strasbourg Observers, (1) the European Court of Human Rights' ('ECtHR' or 'the Court') judgment in SAS v France, which upheld what is commonly known as the French 'burqa ban', (2) stirred up quite some controversy among critics. (3) Not many commentators had expected the ECtHR to uphold the French ban on full-face coverings in public, (4) much less that the Court would do so on the basis of the notion of vivre ensemble ('living together') accepted by the Court to form part of the limitation ground of 'the rights and freedoms of others' under arts 8 (privacy) and 9 (freedom of religion) of the European Convention on Human Rights ('ECHR' or 'Convention'). (5) Some have argued that the Court took an entirely novel approach to 'the rights and freedoms of others', being for the first time confronted with the concept of vivre ensemble. (6) This case note reviews the judgment in SAS v France and subsequently argues that the Court was neither first confronted with vivre ensemble, nor did it take a novel approach to 'the rights and freedoms of others'. Rather, SAS v France forms part of a trend at the ECtHR to include what are essentially public order (ordre public) considerations (eg vivre ensemble) in 'the rights and freedoms of others' limitation under human rights, which do not contain a public order (ordre public) limitation ground. Placing the judgment of SAS v France in context, I will demonstrate that it forms part of a development under the ECtHR's case law instead of offering a 'novel approach'. Following this introduction, I first introduce the case of SAS v France (Part II). Thereafter, I explain how the Court in SAS v France attempted to 'remedy' the lack of a public order (ordre public) limitation under ECHR art 8 through an acceptance of ordre public considerations under 'the rights and freedoms of others', and that doing so is not a new practice but part of an emerging trend developed within the context of religious manifestation and beyond (Part III). Subsequently, I indicate future implications of broadening the limitation ground of 'the rights and freedoms of others' to encompass public order (ordre public) and the ruling in SAS v France (Part IV) and end with a short conclusion (Part V). II SAS V FRANCE: FACTS AND PROCEEDINGS A Facts On 11 April 2011, Law No 2010-1192 prohibiting all (7) persons present on French territory to conceal their faces in public, including through full-face veils, (8) entered into force. …

5 citations


Journal Article
TL;DR: In this paper, the authors discuss the European antitrust investigation into Google and the international implications of the case, focusing on Google's alleged dominance and the allegations concerning Google's self-preferencing of its Google Shopping results on general web search result pages, which form the subject matter of the Statement of Objections that the European Commission sent on 15 April 2015.
Abstract: This commentary discusses the European antitrust investigation into Google and the international implications of the case. It focuses on Google's alleged dominance and the allegations concerning Google's self-preferencing of its Google Shopping results on general web search result pages, which form the subject matter of the Statement of Objections that the European Commission ('Commission') sent on 15 April 2015. As a threshold matter, the Commission's international jurisdiction to prescribe is found to be unproblematic. However, the tendency towards over-enforcement resulting from the cumulation of national and supranational investigations by competition authorities worldwide counsels caution in borderline cases. And, as the assessment of the merits of the case shows, Google is indeed a borderline case. While it seems possible to construct a story of dominance and consumer harm, this paper doubts Google's ability to act to an appreciable extent independently of its competitors and customers. Ultimately, this is an empirical question and the Commission may have sufficient evidence at its disposal. However, the publicly available evidence does not seem to support a finding of dominance, despite Google's high share of user searches. With regard to a finding of abuse, classifying Google's self-preferential treatment as an abuse would require changing the goalposts: one would have to accept that instead of a constructive refusal to deal, it is already abusive if services are not provided to third parties on identical conditions, or that instead of requiring coercion of consumers to acquire a tied product or service, it is already abusive if consumers are merely nudged to preferring the vertically integrated firm's products. These changes would amount to a paradigm change. Traditionally, competition is meant to force producers to be responsive to consumer preferences. Consumer choices are taken to reveal their preferences unless coercion can be shown. Allowing intervention already below the threshold of coercion, when consumers are merely nudged to make particular choices, risks substituting the competition authority's assessment for consumer preferences.

Journal Article
TL;DR: In this paper, the authors reviewed the future of export restraints after the China-Rare Earths decision and highlighted the effect of this decision on the future structuring of export restraint regimes.
Abstract: CONTENTS I Introduction II Treatment of Export Restraints A GATT/WYO Framework B WTO Jurisprudence 1 Exception (b) 2 Exception (g) III The Chinese Complication A China--Raw Materials B China--Rare Earths IV Analysis V The Way Forward China's export restraints on rare earths were the subject of a trade dispute with the European Union, Japan and the United States in the World Trade Organization. The decision of the WTO Appellate Body in the China--Measures related to the Exportation of Rare Earths, Tungsten and Molybdenum ("China--Rare Earths',) case carries important consequences for developing countries that rely heavily on the resources and mining sector. Developing countries have often used export restraints to achieve varied objectives such as economic development and environmental protection. Export restraints are viewed as trade distortive and violative of the WTO norms. Therefore, developing countries face a complicated challenge on how to structure export restraint regimes that are WTO consistent and which allow domestic policy goals to be achieved. This article reviews the future of export restraints after the China--Rare Earths decision. I INTRODUCTION Rare earths are essential inputs for today's high tech digital age. These metals have wide-ranging applications in wind power generation equipment, defence industries, telecommunication equipment and permanent magnets. Rare earths are not rare in terms of availability but attract the moniker 'rare' due to a lack of concentrated occurrence in one locale, resulting in high mining costs. (1) Furthermore, mining operations in this sector cause considerable environmental harm. According to various 2014 estimates, China accounts for more than 90 per cent of global rare earths production (2) while being endowed with only 37 per cent of the total global deposits. (3) Mining of rare earths is highly damaging to the environment, leaving radiation in its wake and pollution of the surrounding soil, water and air. (4) Recently, China was the subject of a trade dispute on rare earths involving the European Union, Japan and the United States. This dispute was triggered after China imposed various regulatory measures on the rare earths mining industry. These measures included the closure of certain mines, reduction of the volume of exports and the setting of export quotas. (5) The measures were imposed as early as 2009 and their effects startled countries with industries that were dependent on imports of rare earths (namely the EU, Japan and the US). (6) The complaining parties objected to the measures employed by China and viewed these as a violation of China's General Agreement on Tariffs and Trade 1994 ('GATT or 'GATT 7994')/WTO obligations as well as specific undertakings made by China when it acceded to the WTO. (7) The trade dispute was escalated to the WTO Dispute Settlement Body ('WTO DSB') after the consultation process failed to produce an outcome. The dispute in question involved three parallel proceedings brought against China by the EU, Japan and the US. The Dispute Settlement Panel was constituted by the WTO DSB on 23 July 2012 which issued its report on 26 March 2014. (8) China appealed the case decision before the WTO Appellate Body. The WTO Appellate Body decision was announced in August 2014 which upheld the earlier decision by the panel. (9) The WTO decision in China--Measures related to the Exportation of Rare Earths, Tungsten and Molybdenum ('China--Rare Earths') carries important consequences for the mining and the resources sector. This decision also impacts future structuring of export restraints based on GATT art XX by resource-dependent countries. This article highlights the effect of the China--Rare Earths decision on the future of export restraint regimes. Part II briefly looks at the treatment of export restraints under the GATT!WTO framework and jurisprudence. …

Journal Article
TL;DR: In this article, the authors advocate the convening of a multilateral treaty that would oblige states not to arbitrarily refuse international disaster relief when it denies their citizens the right to life.
Abstract: In May 2008 Cyclone Nargis struck the coast of Myanmar with devastating force. Within days it became clear that the country's military regime was either unable or unwilling to respond to the disaster and it is estimated that up to 150 000 people were killed with 2.4 million internally displaced. Fearing foreign political interference or domestic backlash, the regime initially refused all offers of international humanitarian assistance, leading many to question whether states should be allowed to refuse international disaster relief when it denies their citizens the right to life. This article advocates the convening of a multilateral treaty that would oblige states not to arbitrarily refuse international disaster relief. Since the fall of the International Relief Union in the late 1930s, international disaster law has been characterised by inadequate codification, inconsistent state practice and non-binding guidelines. The lack of certainty in the provision, acceptance and termination of international aid has left affected states vulnerable to the political motivations of assisting actors and ultimately powerless to control the facilitation of aid on their own territories. The result is that states will often refuse aid irrespective of humanitarian need due to fears of unwanted political interference or a loss of domestic political legitimacy. This article acknowledges this reality and, building on the work of the International Law Commission's 'Protection of Persons in the Event of Disasters', provides several novel arguments on how ratifying a treaty on international disaster relief would be in the interest of affected states by enhancing their sovereign control of the relief effort and bolstering their domestic political legitimacy to govern.

Journal Article
TL;DR: In this paper, the authors explore how the United Nations Security Council came to see Ebola as a threat to the peace, what reasons it provided to justify classifying the disease and what the significance of the Resolution is.
Abstract: In September 2014 the United Nations Security Council ('Council') passed Security Council Resolution 2177, which declared that the Ebola virus ('Ebola') was a threat to the peace under art 39 of the Charter of the United Nations. The Resolution was the first time that the Council had determined that a health issue constituted a threat to the peace. This article explores how the Council came to see Ebola as a threat to the peace, what reasons it provided to justify classifying the disease as a threat and what the significance of the Resolution is. The article argues that many of the rationales provided by states to justify the classification of Ebola as a threat to the peace represented a significant extension of the scope of a threat to the peace and that it is questionable whether under these rationales any substantive limits remain within the concept. It then turns to discuss the idea that the erosion of the limits within the term 'a threat to the peace' gives rise to the possibility that the Council's approach to determining a threat to the peace is beginning to resemble the Copenhagen School's theory on securitisation and it examines how viewing the Council's art 39 activity through the lens of securitisation may open up new ideas and questions about the Council's practice. CONTENTS I Introduction II The Traditional Scope of the Term 'A Threat to the Peace' in Article 39 of the UN Charter III Conceptualising Ebola as a Threat to the Peace A Linking Ebola to the Prospect of Conflict B Suggesting Ebola Creates Instability within the Affected States C Viewing Ebola as a Threat to Human Security D Understanding Ebola as an Emergency or Crisis E Asserting that Ebola Required International Action and Cooperation IV Discussion V Conclusion I INTRODUCTION In December 2013, the Ebola virus ('Ebola') broke out in a small village in Guinea. Over the course of the following months it spread to other parts of the country. Then, in March 2014, it jumped the border into Liberia and two months later spread to Sierra Leone. By the beginning of June 2014, the disease was growing exponentially, with the number of cases doubling every 20 to 30 days. (1) The international community was initially slow to respond to the outbreak. (2) However, by September 2014, the gravity of the epidemic and the risk it posed to people and states seemed to penetrate the international community's consciousness and a number of entities on the international stage began to take action. One such entity was the United Nations Security Council ('Security Council' or 'Council'). (3) On 18 September 2014, the Council passed Resolution 2177, (4) which declared that the Ebola outbreak in West Africa was a threat to international peace and security under art 39 of the Charter of the United Nations ('UN Charter') (5) and encouraged states to take a number of steps to help bring the disease under control. (6) The passage of Resolution 2177 was the first time that the Security Council had determined that a health issue constituted a threat to international peace and security. (7) Prima facie, the idea that a health crisis amounts to a threat to the peace appears to be at odds with the scope of the term 'a threat to the peace'. While the precise parameters of the term 'a threat to the peace' are disputed, (8) Security Council practice suggests that a threat to the peace will normally only be declared where there is an armed conflict or a situation that is likely to give rise to an armed conflict in the short to medium term. (9) Although Ebola was inflicting pain and suffering on its victims and creating instability in Guinea, Liberia and Sierra Leone, there was little indication in September 2014 that the Ebola crisis was likely to give rise to armed conflict at any point in the foreseeable future. (10) How then did the Security Council come to see it as a threat to the peace? What reasons did it provide to justify its classification of the disease as a threat to the peace? …

Journal Article
TL;DR: The tension between access to justice and jurisdictional immunity of States is one of the most debated topics in current public international law as mentioned in this paper, and the Italian Constitutional Court's opinion on this matter, in particular after its recent judgment no. 238 of 2014, in which the Court stated that Italy is no longer bound by the rule on State immunity in the case of civil proceedings dealing with damages caused by the Nazi army during World War II.
Abstract: The tension between access to justice and jurisdictional immunity of States is one of the most debated topics in current public international law. The present essay aims to explore the Italian Constitutional Court’s opinion on this matter, in particular after its recent judgment no. 238 of 2014, in which the Court stated that Italy is no longer bound by the rule on State immunity in the case of civil proceedings dealing with damages caused by the Nazi army during World War II. Studying the Court’s reasoning and the arguments provided in order to compel Italy not to implement the ICJ judgment in the Jurisdictional Immunities of the State could provide a new point of view in the International Community, based on domestic constitutional norms, about the fundamental need to protect the rights of the human being, even to the detriment of a international customary rule.

Journal Article
TL;DR: In the case of the Roach v Electoral Commissioner case, a majority of the High Court of Australia found that a right to universal suffrage was implied in the Australian constitution as mentioned in this paper.
Abstract: (ii) Doctrinal Logic: Implied Right Related to this, a right to universal suffrage can logically be read into the text of the Joint Declaration from a method of interpretation known as 'implication from text and structure' or implied rights. (200) Pursuant to this doctrine, from a nucleus of existing rights, an associated right can be presumed that inferentially flows from the others. In Australia, significantly, this doctrine has been employed by the country's High Court in the electoral context. In Roach v Electoral Commissioner, (201) the Australian High Court found that legislative measures to disqualify all prisoners from voting were invalid because they interfered with a right for all citizens to vote that was read into Australia's constitution based on rights of representative government, participation in the life of the community and citizenship. (202) Of this case, Professor Anthony Gray observes: It is worth noting that, unlike most other Western nations, Australia lacks a bill of rights. Perhaps as a counterweight to this, some judges in the High Court of Australia have found implied rights in the Constitution. In ... Roach v Electoral Commissioner, a majority of the High Court deduced, from sections of the Constitution that mandated that the Parliament (Australian Congress) be directly chosen by the people, something approaching a right to vote ... Chief Justice Gleeson noted that the franchise was critical to representative government and lay at the centre of participation in the life of the community and citizenship. (203) Consistent with this, the Australian High Court has gleaned an implied right of 'freedom of political communication' that is derived from the explicit rights of representative and responsible government. (204) Former Australian High Court Justice Michael Kirby has said of this implied right: [It] is elementary lawyering that documents have implications as well as express textual statements. It doesn't seem to me, looking as objectively as I can to what was done in the implied rights cases, to be a very large statement to say what the Court said. This was that, in a Constitution which is otherwise very sparse in its text (but has quite detailed provisions for how we elect the Parliament), it is necessary, in order that such elections should not be a charade, that there be an entitlement to have a proper and effective national debate of the issues relevant to an election ... Even accepting an implied constitutional right to free speech, I don't think I would have struck down the statutory limits on electoral advertising for a Parliament chosen by the people. But that's not the question. The question is whether you can draw implications. (205) The existence of a right logically inferred from an existing core of other related rights has also been acknowledged in US constitutional law. For example, although privacy is considered a fundamental right, it is not explicitly recognised in the United States Constitution. (206) As Steven Bennett notes: The notion that individuals have a right to privacy is not a new development, yet, this is not a right expressly protected in the US Constitution. Instead, the right of privacy receives protection from various sources, including scattered clauses of the Constitution and its amendments, common law and various statutes. (207) Indeed, in the landmark 1965 case of Griswold v Connecticut, (208) the US Supreme Court found that, from a list of enumerated liberties in the Bill of Rights--the right of association, the prohibition against the quartering of soldiers, freedom from unreasonable searches and seizures and the right against self-incrimination--an implied right of privacy existed. (209) In conducting this analysis, the majority opinion's author, Justice William Douglas, noted: The association of people is not mentioned in the Constitution nor in the Bill of Rights. …

Journal Article
TL;DR: In this paper, the authors address the topic of "new mechanisms for punishing atrocities in Non-International Armed Conflicts" ('NIACs'), taking it as a given that there are numerous non-international armed conflicts occurring worldwide, including in Afghanistan, Iraq, Nigeria and Syria and that there will continue to be such conflicts in the future.
Abstract: This lecture addresses the topic of 'new mechanisms for punishing atrocities in Non-International Armed Conflicts' ('NIACs'). I take it as a given that there are numerous non-international armed conflicts occurring worldwide, including in Afghanistan, Iraq, Nigeria and Syria and that there will continue to be such conflicts in the future. I also take it as a given that there are serious atrocities occurring as a part of those NIACs, including the targeting of civilians; leading to their death and injury, enslavement, forcible transfers of populations, enforced disappearances, torture, sexual violence and persecution, just to name a few. And, finally, I take it as a given that we would like to find a way to deter and to punish such atrocities.