Melbourne Journal of International Law最新文献

{"title":"Service Jurisdiction under International Law","authors":"Rain Liivoja","doi":"10.1017/9781139600392.009","DOIUrl":"https://doi.org/10.1017/9781139600392.009","url":null,"abstract":"The extraterritorial criminal jurisdiction that a state exercises over members of its armed forces and various civilians associated with the forces cannot be easily explained in terms of the traditional principles of state jurisdiction under international law. Contrary to popular belief, such jurisdiction has little, if anything, to do with the nationality of the defendant. Concerns for the security of the state also fail to justify the often very expansive service jurisdiction. This article argues that such jurisdiction is designed to maintain the discipline of the armed forces. Furthermore, the exercise of service jurisdiction aims at reducing the chances of the state itself being held internationally liable for the conduct of its forces. Also, service jurisdiction should ensure that the possible immunities granted to foreign service members and associated civilians do not lead to an accountability gap.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2010-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90140454","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":"Law, Legitimacy and United Nations","authors":"R. Thakur","doi":"10.1093/acprof:oso/9780199781577.003.0002","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199781577.003.0002","url":null,"abstract":"The gulf between law and legitimacy - a distinction popularised in the context of the North Atlantic Treaty Organization's intervention in Kosovo in 1999 - is a more serious crisis-in-the-making for the United Nations than is commonly realised. The reason for the under-estimation of the extent and gravity of the gap is that different segments of the international community have problems with different elements of the gap and fail to capture the several dimensions in their cumulative effect. This is illustrated with respect to international law and international humanitarian law, sanctions, nuclear weapons, atrocity crimes and international interventions, international criminal justice, the Security Council, the UN-United States relationship, and UN integrity systems.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2010-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88446614","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":"Solidarity, Justice and Climate Change Law","authors":"Angela J Williams","doi":"10.4324/9781315254135-12","DOIUrl":"https://doi.org/10.4324/9781315254135-12","url":null,"abstract":"This think piece examines the concept of solidarity and contemplates the extent to which it is a relevant and valuable mechanism for the promotion of justice within climate change law. In particular, it is suggested that solidarity potentially offers greater depth and maturity than principles such as cooperation, which have previously been the focus of attention, thereby better reflecting the diversity and complexity of our international society. The climate change framework already features solidaristic measures in the form of the principle of 'common but differentiated responsibilities', flexible mechanisms such as the 'clean development mechanism', and the introduction of funding initiatives. It is concluded that whilst solidarity is a mechanism which demonstrates potential for further promoting justice within international climate change law, there remains considerable scope for further development in this area.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2009-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75626425","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 International Law Works: A Rational Choice Theory [Book Review]","authors":"A. Carty","doi":"10.5860/choice.48-5345","DOIUrl":"https://doi.org/10.5860/choice.48-5345","url":null,"abstract":"Review(s) of: How International Law Works: A Rational Choice Theory, by Andrew T Guzman (New York, US: Oxford University Press, 2008) 260 Pages. Price US$35.00 (Hardback) ISBN 9780195305562. Includes footnotes.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2009-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82072069","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":"At the Border and Between the Cracks: The Precarious Position of Irregular Migrant Workers Under International Human Rights Law","authors":"Laurie Berg","doi":"10.4324/9781315248967-12","DOIUrl":"https://doi.org/10.4324/9781315248967-12","url":null,"abstract":"This article aims to identify jurisprudence which advances the standards of treatment of unauthorised migrants in the context of often hostile domestic laws and political rhetoric. Due to its universalist and humanist underpinnings, many would consider international human rights law to be a natural source of rights protecting migrant workers. However, human rights doctrine takes a chequered approach to the protection of those living or working in a foreign state without visa authorisation. Even the Migrant Workers Convention recognises states' sovereign prerogative over immigration control, and thereby fails to cater to the especially precarious position of irregular migrants who decline to assert their rights for fear of facing sanctions under immigration laws. It is argued that we need to look to regional judicial forums to find international legal doctrine which articulates a progressive legal framework robustly protective of irregular migrants' rights. This article canvasses jurisprudence in the regional Human Rights Courts in Europe and the Americas which succeeds, in different ways, at decoupling the absolute discretion of states to regulate border control from the substantive rights of irregular migrants once present in a host state.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2009-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72888516","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":"Good Faith in WTO Dispute Settlement","authors":"A. Mitchell","doi":"10.2139/SSRN.3157444","DOIUrl":"https://doi.org/10.2139/SSRN.3157444","url":null,"abstract":"[The definition of good faith in international law has been largely elusive, and its indefinite boundaries complicate its use in the World Trade Organization. Nevertheless, good faith is almost certainly a general principle of law and a principle of customary international law. It is also a principle of WTO law that is reflected in several provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes. WTO Tribunals may use the principle of good faith not merely to interpret WTO provisions, but also in the exercise of their inherent jurisdiction, such as when employing the doctrine of estoppel, which is one particularisation of good faith. However, the use of good faith in WTO dispute settlement entails three important considerations and qualifications. First, the principle should not be used to overwhelm WTO provisions that appear to be based on concepts similar to those underlying the principle of good faith, such as non-violation complaints, which are subject to detailed rules. Second, the principle should not be confused with other principles that may appear to be related, particularly due process. Third, in my view, WTO Tribunals have no legal basis for finding that a Member has violated a principle of good faith independent of a violation of a WTO provision. Some existing reports err in this regard.] CONTENTS I Introduction II Good Faith in International Law outside the WTO A A General Principle of Law B A Principle of Customary International Law C Towards a Definition of Good Faith D Particularisations of Good Faith 1 Performance of Treaties: Pacta Sunt Servanda 2 Interpretation of Treaties: VCLT Article 31(1) 3 Estoppel 4 Abuse of Rights III Using Good Faith in WTO Disputes A Good Faith as a Principle of WTO Law B Procedural Implications of Good Faith 1 Engaging in Dispute Settlement Procedures (DSU Article 3.10). 2 Resorting to Dispute Settlement (DSU Articles 3.7, 23) 3 Good Faith and Inherent Jurisdiction: Estoppel C Substantive Implications of Good Faith 1 Performance of WTO Obligations: Pacta Sunt Servanda 2 Non-Violation Complaints 3 General Exceptions and Abuse of Rights IV Conclusion Men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith. (1) I INTRODUCTION The principle of good faith has a great deal of normative appeal, and most commentators would acknowledge that it plays a role in all legal systems. The ordinary meaning of good faith is 'honesty of purpose or sincerity of declaration' or the 'expectation of such qualities in others'. (2) 'Good faith' is often used interchangeably with 'bona fides', which is defined as 'freedom from intent to deceive'. (3) The touchstone of good faith is therefore honesty, a subjective state of mind, but the principle can also incorporate notions of fairness and reasonableness, both of which concern an objective state of affairs. Unfortunately, terms like honesty, fairness and reasonableness are almost","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2006-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77897261","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":"Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council","authors":"Philip Alston","doi":"10.2139/SSRN.907471","DOIUrl":"https://doi.org/10.2139/SSRN.907471","url":null,"abstract":"In 2006, the UN Commission on Human Rights, established 60 years earlier, was replaced by a new Human Rights Council. This article examines the widely differing reasons given for the Commission's loss of credibility and seeks to draw lessons relevant to the new institutional regime which the Council must build. It argues that the preoccupation with the Council's composition, and the exclusion of violators, fails to address the more important factors in the Commission's downfall. Detailed consideration is given to the potential strengths and pitfalls involved in establishing a system of universal periodic review of the human rights performance of every state, and of the need to learn from the dismal failure of a very similar exercise undertaken by the Commission between 1956 and 1981. The article then considers some of the key reforms that need to be undertaken in order to transform the system of 'special procedures' - currently involving some 41 country and thematic mechanisms - into a more coherent, professional and effective system for defending human rights and one which should be at the core of the work of the new Council.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2006-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81586971","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":"Dow Jones & Company Inc v Gutnick: An Adequate Response to Transnational Internet Defamation?","authors":"Richard L. Garnett","doi":"10.2139/SSRN.473041","DOIUrl":"https://doi.org/10.2139/SSRN.473041","url":null,"abstract":"The recent decision of the High Court of Australia in Dow Jones & Co Inc v Gutnick has inspired much controversy. The reaction from media and technology groups has been particularly critical as they see the decision representing a threat to freedom of expression on the Internet and a deterrent to online publication. It has also been suggested that the High Court judgments reflect a peculiarly nationalistic approach to resolving problems with respect to a medium that is fundamentally borderless and aterritorial. More generally, the decision is also highly significant because it represents the first major opportunity for an Australian court to examine the application of the rules of private international law to Internet conduct. While in the United States and Europe there now exists a large body of judicial decisions and legislative activity on the topic, in Australia, until Gutnick, the issues of jurisdiction and choice of law in relation to the Internet remained largely unexplored. The purpose of this article is to assess the adequacy of the approach taken by the High Court according to a number of criteria of adjudicative fairness. Firstly, does the decision treat plaintiffs and defendants with equality in transnational defamation litigation? Secondly, does it effectively advance the objectives of comity between nation states and the proper allocation of jurisdictional competence among national courts? In considering these issues, a number of alternative approaches to that adopted by the Court will also be discussed.","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2003-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89395981","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":"Twenty Years On: An Evaluation of the Court of Arbitration for Sport","authors":"D. Kane","doi":"10.1007/978-90-6704-591-9_33","DOIUrl":"https://doi.org/10.1007/978-90-6704-591-9_33","url":null,"abstract":"","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79625016","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 Common Heritage of Mankind: an Adequate Regime for Managing the Deep Seabed?","authors":"Edward Guntrip","doi":"10.4324/9781315254135-11","DOIUrl":"https://doi.org/10.4324/9781315254135-11","url":null,"abstract":"[The concept of the 'common heritage of mankind\" governs the deep seabed However. the principle of the common heritage of mankind has differing interpretations and consequently lacks legal force. This article attempts to give content to the common heritage of mankind principle, as it applies to the deep seabed, by examining existing principles in international law. It also draws analogies with the principle of the common heritage of mankind as it applies to Antarctica and outer space. The development of international environmental law is considered as a potential model by which the common heritage of mankind principle can develop further legal content.] CONTENTS I Introduction II The Evolution of the Common Heritage of Mankind Principle A Initial Proposal B General Assembly Resolutions 1 Moratorium Resolution 2 Declaration of Principles C UN Convention on the Law of the Sea D Reciprocating States' Regime E The 1994 Agreement F Conclusion III Legal Application of the Common Heritage of Mankind Principle A Prohibition on the Acquisition of the Deep Seabed 1 Traditional Sovereign Claims 2 The Compatibility of Sovereign Claims with the Common Heritage of Mankind Principle B The Use of the Seabed for Peaceful Purposes 1 Definitions of Peaceful Purposes 2 Peaceful Purposes in Analogous Treaties 3 Peaceful Purposes and the Deep Seabed C Equitable Sharing of Benefits D International Management Regime E Conclusion IV Global Commons and the Common Heritage of Mankind Principle A Outer Space Law B Antarctica 1 Sovereign Claims 2 Ban on Mineral Exploitation 3 Exclusive Membership 4 Conclusion V International Environmental Law and the Common Heritage of Mankind Principle A Development of International Environmental Law B Negotiation Methods in International Environmental Law C Existence of 'Soft Law' D Judicial Consideration E Precautionary Principle F Conclusion VI Conclusion I INTRODUCTION In the late 19th century, scientists discovered polymetallic nodules on the deep seabed. (1) The quantities found were large enough to enable commercial mining operations, (2) and in the 1960s, developments in technology meant that accessing these new mineral resources became a real and imminent possibility. (3) The problem, however, was that the deep seabed did not lie within the jurisdiction of any state. Consequently, to regulate access to these resources, a legal regime had to be established. The regime adopted was the 'common heritage of mankind'. The common heritage of mankind principle consists of four elements. It prohibits states from proclaiming sovereignty over any part of the deep seabed, and requires that states use it for peaceful purposes, sharing its management and the benefits of its exploitation. (4) Due to the ideological differences of developed and developing states, the common heritage of mankind principle has been interpreted in various ways. (5) These interpretations have not been reconciled and there has been no juridical consideration of the comm","PeriodicalId":42243,"journal":{"name":"Melbourne Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91101768","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}