Melbourne Journal of International Law最新文献

{"title":"Protection of Climate Displaced Persons under International Law: A Case Study from Mataso Island, Vanuatu","authors":"M. Wewerinke‐Singh, Tess Van Geelen","doi":"10.2139/ssrn.3325937","DOIUrl":"https://doi.org/10.2139/ssrn.3325937","url":null,"abstract":"International human rights law has evolved to offer specific protection to persons who are internally displaced. This protection is becoming increasingly important as the effects of climate change are putting more populations around the world at risk of displacement. However, there is still limited empirical insight into the factors that enhance or undermine effective protection of the rights of climate displaced persons in practice. This article seeks to fill this gap, drawing on a case study of climate displacement resulting from Tropical Cyclone Pam which struck the Pacific Island nation of Vanuatu in March 2015. We note that Vanuatu has an expansive suite of laws and policies dedicated to disaster preparation, risk reduction and response, as well as climate change and disaster displacement. However, its capacity to fulfil its human rights obligations in the face of climate disasters is undermined by a lack of resources and institutional capacity. We argue that this gap must be addressed through an integrated approach to international law that emphasises human rights obligations of international cooperation and assistance along with obligations relating to climate change mitigation, adaptation and capacity building under international climate change law. Vanuatu's experience with Cyclone Pam also provides a clear case for strengthening the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts ('Warsaw Mechanism') in a manner that results in enhanced human rights protection for climate displaced persons.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"13 1","pages":"666"},"PeriodicalIF":0.6,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87565019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Indigenous Consent: A Self-Determination Perspective","authors":"N. Yaffe","doi":"10.2139/SSRN.3153945","DOIUrl":"https://doi.org/10.2139/SSRN.3153945","url":null,"abstract":"With the rise of “Free, Prior, and Informed Consent” (“FPIC”), obtaining consent from Indigenous peoples has become central to many struggles involving Indigenous communities. Yet even as consent-seeking practices become more universal, developments in the implementation of FPIC threaten to sever FPIC from its normative foundations. FPIC is a manifestation of, and pathway towards promoting, self-determined governance by Indigenous communities. Self-determination, however, is all but absent from the conception of FPIC articulated by those who often bear de facto responsibility for its implementation: companies who wish to pursue projects on Indigenous peoples’ land. Companies have taken the lead in (1) generating normative guidance regarding FPIC, (2) implementing FPIC processes, and (3) evaluating FPIC processes’ implementation. Yet FPIC as interpreted and implemented by actors on the ground has heretofore received insufficient attention. This article critically evaluates emerging FPIC practices in light of FPIC’s normative foundations. \u0000This article suggests that we are witnessing “FPIC’s normative drift”: a process whereby FPIC is adopted by companies, but denuded of its normative import. Corporate articulations of FPIC suggest companies employ a thin, liberal notion of consent, inconsistent with understanding FPIC as part of a self-determined governance process. I argue that corporate delegation of FPIC obligations has gone too far, such that independent oversight from settler State or independent authorities is needed. I explore options for the institutional and procedural form for settler State re-engagement.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"45 1","pages":"703"},"PeriodicalIF":0.6,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73455549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International cooperation and responsibility sharing to combat climate change: Lessons for international refugee law","authors":"Rebecca Dowd, J. McAdam","doi":"10.2139/ssrn.3360753","DOIUrl":"https://doi.org/10.2139/ssrn.3360753","url":null,"abstract":"By examining high level statements by states at the past four sessions of the Conferences of the Parties to the United Nations Framework Convention on Climate Change (2013-16) and the UN General Assembly over the past decade, this article seeks to provide insights into the meaning of responsibility sharing, international cooperation, and common but differentiated responsibilities and respective capabilities in international environmental law from the perspective of individual states. Its purpose is to elucidate more fully how these precepts might inform deliberations on responsibility sharing for international refugee protection. This article complements a recent piece by the same authors examining the concepts of 'international cooperation' and 'responsibility sharing' in international refugee law. Since these principles are at a more advanced stage in international environmental law (most notably through their inclusion in binding international agreements on climate change), the present article compares and contrasts how states understand and apply them in that context. While there are some fundamental differences between responsibility sharing in the two regimes, it is clear that no state alone can respond to the protection needs of the world's refugees nor address the global impacts of climate change. The need for international cooperation and responsibility sharing in both cases is clear; indeed, it is a humanitarian imperative. Yet, the article shows that, ultimately, national interests tend to prevail when states determine how such global issues should be addressed.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"1 1","pages":"180"},"PeriodicalIF":0.6,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80158156","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Requiem for the Trans-Pacific Partnership: Something New, Something Old and Something Borrowed?","authors":"Polanco Lazo Rodrigo, Sebastian Fiedler","doi":"10.7892/BORIS.108788","DOIUrl":"https://doi.org/10.7892/BORIS.108788","url":null,"abstract":"On 4 February 2016, after almost seven years of negotiations, the Trans-Pacific Partnership Agreement (‘TPP’) was signed by 12 negotiating countries. The TPP was then labelled by all signatory countries as a ‘new’, ‘high standard’, and ‘21st century agreement’. However, the ratification process of the agreement was stalled and most likely in a definitive way, after the United States decided to withdraw from the TPP in January 2017. Before regretting this development, looking back to the halt of the ratification process of the TPP one can ask how much innovation this treaty really had and the usefulness of mourning the failure of having a TPP agreement, either in terms of future usage of TPP text, or in terms of political relevancy. This article aims to describe the level of novelty of the TPP, specifically in comparison with existing trade and investment agreements between TPP signatory countries, notably the United States. For that purpose, we have focused on the core disciplines of the agreement that were highlighted as novelty parts of the TPP, or that generated debate during the negotiation of the treaty. As a benchmark, we have compared the texts of the previous treaties concluded between TPP signatory states, with the TPP chapters on investment, government procurement, regulatory coherence, sustainable development, intellectual property, cross-border trade in services, telecommunications, electronic commerce, competition, and state-owned enterprises, small and medium-sized enterprises (‘SMEs’), transparency and anti-corruption. The article concludes that the TPP was largely ‘Made in America’ — the same country that triggered its demise — as the structure and content of the treaty clearly follow the texts of previous agreements concluded by the United States. However, the influence of other TPP signatories is also perceived in the final text, notably Australia, Canada, Chile and Peru. We also conclude that some parts of the TPP were not particularly novel for signatory countries, as the treaty built on existing trade and investment agreements, offering a consolidation of commitments already present in treaties in force between TPP signatories. However, the TPP also delivered innovation, by including certain disciplines that have not been traditionally established in preferential trade agreements (like regulatory coherence and e-commerce) and others that have benefited from a larger development compared to existing agreements (like intellectual property and sustainable development). Both consolidation and innovation features can be useful for a TPP 11 or for future preferential trade agreements.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"99 1","pages":"298"},"PeriodicalIF":0.6,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78634241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Affective Critique: Fear, Hope, Abandonment and Pleasure in Dianne Otto's Living with International Law","authors":"Vanja Hamzić","doi":"10.22024/UNIKENT/03/FAL.399","DOIUrl":"https://doi.org/10.22024/UNIKENT/03/FAL.399","url":null,"abstract":"However, a cursory glance over the standard set of proposals of affect theorists suggests that all this is well-nigh impossible. Not only is affect often theorised— for instance, in Brian Massumi’s work—as autonomous and outside social signification,1 that primary field of critical theory; it is also posited as a critique of sorts of critical social studies, with its attention to the residue that constructivist models of social studies leave behind—‘the residue or excess that is not socially produced, and that constitutes the very fabric of our being’. 2 The visual arts theorist Simon O’Sullivan therefore concludes: ‘Affects are [...] the stuff that goes on beneath, beyond, even parallel to signification. [...] You cannot read affects, you can only experience them’.3 This assertion implies that affect as critical object stands in opposition to critique, or at least the critique produced by attention to social structures.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"56 1","pages":"125"},"PeriodicalIF":0.6,"publicationDate":"2017-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75735602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"European Extraterritoriality in Semicolonial Ethiopia","authors":"Hailegabriel Gedecho Feyissa","doi":"10.2139/SSRN.2819885","DOIUrl":"https://doi.org/10.2139/SSRN.2819885","url":null,"abstract":"Scholarly discussions regarding European legal imperialism in semicolonial nations of the modern era have not considered Ethiopia. China, Japan and other Middle and Far Eastern nations have been the dominant, if not exclusive, objects of historical studies in European extraterritoriality. Furthermore, there appears to be a consensus that both the rise and decline of European extraterritoriality in the semicolonial world (effected through ‘mixed courts’) only form part of the history of the pre-Second World War international law system. Nonetheless, a forgotten strand of European extraterritoriality overstayed the Second World War in semicolonial Ethiopia. Apart from aiming to restore visibility to Ethiopia’s unknown experience with European extraterritoriality, this study tries to explain the late arrival, the gradual resurgence and the post-Second World War decline of European extraterritoriality in Ethiopia. It argues that European extraterritoriality in Ethiopia, which was weak during the first third of the 20th century, reached its zenith in the post-Second World War period, but was miscast as a modernisation project, rather than a colonial one.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"24 1","pages":"107"},"PeriodicalIF":0.6,"publicationDate":"2016-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79184061","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Writing the fine print: Developing regional insurance for climate change adaptation in the pacific","authors":"Jeffrey McGee, Liam Phelan, Joseph Wenta","doi":"10.6084/M9.FIGSHARE.1431427.V1","DOIUrl":"https://doi.org/10.6084/M9.FIGSHARE.1431427.V1","url":null,"abstract":"CONTENTS I Introduction II Climate Change and Extreme Weather Events III Adaptation in the International Climate Regime IV Insurance and Adaptation in the International Climate Regime V Models for Climate Change Insurance VI Caribbean Catastrophe Risk Insurance Facility VII Climate Change Insurance and the Pacific Island States VIII Viability of Climate Insurance as a Long-Term Adaptation Strategy IX Conclusion I INTRODUCTION Many Small Island Developing States ('SIDS') lie only metres above sea level, making them particularly vulnerable to the impacts of climate change in both the shorter (eg storm surge during large tropical cyclones) and longer (eg sea level rise) terms. (1) The modest ambition for mitigation (ie reduction) (2) of greenhouse gas emissions in the United Nations Framework Convention on Climate Change ('UNFCCC'), (3) Kyoto Protocol (4) and Copenhagen Accord (5) means that the prospect of avoiding an increase in mean surface temperature of less than two degrees is now very low. (6) The latest climate science suggests the Earth is on a path that will lead to a rise in mean surface temperature of between three and six degrees by 2100. (7) Unless there is a significant reduction in greenhouse gas emissions over coming decades, SIDS are likely to experience tropical cyclones of greater severity, disrupted rainfall patterns and sea level rise. (8) Recent extreme weather events in the Asia-Pacific region, such as Typhoon Haiyan (9) and Cyclone Ian, (10) demonstrate the significant impact of these events on SIDS. (11) The lack of success in mitigating greenhouse gas emissions has led to adaptation to climate change impacts gaining greater prominence within the United Nations climate negotiations. Adaptation to climate change has been defined as '[a]djustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities'. (12) Adaptation may take many forms, including pre-emptive action to limit damage from climate change-related events (eg implementing more ambitious building codes to make buildings more resilient to storms) and building institutions to aid recovery after a climate-related event (eg improving emergency services capacity to respond in the immediate aftermath of adverse weather events). Domestically, insurance is an established mechanism to spread financial risk of adverse events and build societal resilience. However, at an international level, the issue of climate change-related insurance has only proceeded in fits and starts. Proposals for an insurance mechanism to support the adaptation of SIDS to climate change date back to 1991. At that time, the Alliance of Small Island States ('AOSIS') proposed an international, state-based pool to provide insurance against the impacts of climate change-related sea-level rise. (13) Despite this early call by AOSIS, a climate change-related insurance mechanism was not included in either the ","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"171 1","pages":"444-472"},"PeriodicalIF":0.6,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87187266","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Does the Emerging International Law of Migration Mean for Sovereignty","authors":"Chantal Thomas","doi":"10.2139/SSRN.2231454","DOIUrl":"https://doi.org/10.2139/SSRN.2231454","url":null,"abstract":"The emergence of an international law of migration has lent ballast to claims by philosophers, such as Benhabib, who contend that “since the UN Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society, which is characterized by a transition from international to cosmopolitan norms of justice.” However, migrant rights are often hotly contested, not least by the states against whom they are asserted. At the very least, however, presumptions of absolute sovereign prerogative have been thrown into question. If national borders are far from open to migrants, one might be able to say that as a normative matter, at least, they are less presumptively, or more contestedly, closed.My purpose in this draft essay is not to mount a detailed doctrinal analysis of this emerging international law, but rather to survey the theoretical discourses of sovereignty that create the backdrop for current debates over migration law and policy. I conclude that neither liberal nor biopolitical discourses by themselves explain the warp and weave of this emerging body of law. Rather, a structural equivocation within international law encompasses opposing positions of realpolitik apology for sovereign power, on the one hand, and aspiration towards utopian universality, on the other. Moreover, a survey of the history of international law locates the bases for migrant rights (alongside other human rights claims) in natural law traditions that predate the rise of “plenary power” conceptions of sovereignty. Before we international lawyers congratulate ourselves regarding the progressive or progressionistic roots of international law, however, the colonial dimension of those natural law traditions should be clarified.Finally, I want to explore an ethics for migration law and policy that would extend beyond the constraints that, similarly to those described above for emerging law, also characterize current discourses of reform - made salient by the recent “comprehensive immigration reform” debates in the U.S. Congress - that is to say, beyond an apologetic pragmatics of population management on the one hand versus a utopian cosmopolitanism, on the other. Somewhat tentatively for the time being I am calling this an ethics of “new organicism.”","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"13 1","pages":"392"},"PeriodicalIF":0.6,"publicationDate":"2013-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86946969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution","authors":"Darryl Robinson","doi":"10.2139/SSRN.1950770","DOIUrl":"https://doi.org/10.2139/SSRN.1950770","url":null,"abstract":"The literature on command responsibility is extensive and is rapidly growing more complex. In this article, I argue that command responsibility can be much simpler than it seems.I focus on a single puzzle, a puzzle hidden in plain sight. The puzzle is that the Tribunal jurisprudence uses command responsibility to convict persons without causal contribution to the crime, while also recognizing a culpability principle that requires causal contribution. This stark contradiction has been obscured by many arguments in the jurisprudence and discourse. Indeed, many readers will raise a host of arguments to deny the contradiction I just described. I will dissect the major arguments to demonstrate that the contradiction does indeed exist. I argue that Tribunal jurisprudence took an early wrong turn in concluding that the “failure to punish” branch of command responsibility is irreconcilable with a contribution requirement. This led to a rejection of causal contribution. Subsequent efforts to deny, avoid or resolve the resulting contradiction with the culpability principle have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as ‘sui generis’, as hybrid, as variegated, as responsibility for-the-acts-but-not-for-the-acts, as neither-mode-nor-offence or as sometimes-mode-sometimes-offence. However, if we revisit the first misstep, a simple and elegant solution is available. Command responsibility is a mode of accessory liability and requires causal contribution. I draw on scholarship from criminal law theory to explore the parameters of the contribution requirement.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"124 1","pages":"1"},"PeriodicalIF":0.6,"publicationDate":"2011-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77318317","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The international legal scholar in Palestine: hurling stones under the guise of legal forms?","authors":"Jean d’Aspremont","doi":"10.2139/SSRN.1846867","DOIUrl":"https://doi.org/10.2139/SSRN.1846867","url":null,"abstract":"This paper is the written transcript of the author’s exchange of views with Martti Koskenniemi and Mudar Kassis on the occasion of a debate organized by the Institute of Law (IoL) of the University of Birzeit. The paper explores the origin of international lawyers’ frustrated expectations when it comes to the role of international law in the Middle East. It more specifically argues that the disenchantment of international lawyers is the upshot of three well-entrenched beliefs. It then elaborates on three attitudes which can help international lawyers make sense of the role of international law in general and, in particular, in the Palestinian-Israeli conflict. Attention is paid to the place of compliance in studies about international law, the role of legal forms and, eventually, the role of international legal scholars in a conflict like the Palestinian-Israeli conflict. The spoken character of the text has been preserved.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":"116 1","pages":"1"},"PeriodicalIF":0.6,"publicationDate":"2011-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74422009","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}