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Abstract:
A hallmark of contemporary international litigation is that it takes place in an array of adjudicative institutions including permanent courts, ad hoc arbitral tribunals, regional courts, and bodies with highly specialised subject-matter jurisdiction. The parallel operation of multiple judicial institutions poses a range of practical difficulties for international dispute settlement, and has introduced considerable unpredictability in some well-known environmental disputes.

This article assesses a related but less examined question, namely whether in resolving disputes touching upon environmental issues some of these adjudicative bodies are destabilising key organising rules and principles of international environmental law by adopting parochial approaches that suit the narrow purposes of non-environmental issue-specific regimes. Such analysis is now clearly desirable having regard to the sizeable expansion in the body of international environmental case law.

International environmental law, dispute settlement, international courts, 'fragmentation' of international law

Abstract:
As the implications of anthropogenic climate change are better understood the pressure builds for more effective legal and policy responses at national and international levels. With climate change looming as an existential threat, climate change law ought not to be characterised merely as a subset of an environmental law designed to reconcile ecological and developmental imperatives in search of the amorphous objective of sustainable development. Instead it should properly be seen as a frontline defender of the social, economic and ecological foundations upon which the rule of law is built. Against the backdrop of improved climate science concerning the temperature threshold beyond which there will be dangerous interference with the climate system, and the carbon reduction pathways to avoid this tipping-point, this paper takes stock of developments in international climate change law in the lead up to the conference and meeting of the parties to UNFCCC and Kyoto in Bali in December; a meeting that will mark 10 years since Kyoto was concluded. While recognising the limitations of the Kyoto Protocol, this paper defends the Kyoto approach against concerted efforts by the Howard Government in Australia and the Bush Administration in the United States to undermine a climate change regime enshrining binding targets and timetables for reducing emissions. It argues that rolling over Kyoto into second and subsequent commitment periods for emissions reductions by developed (and ultimately developing) countries would be an appropriate combination of pragmatism and principle in the pursuit of the rule of law in international climate policy.

Climate change, climate change law, Kyoto Protocol

Abstract:
This article offers an overview and appraisal of efforts by the international community to respond to terrorism through the principles and institutions of international criminal law. It begins by considering the vexed issue of defining terrorism and, after briefly exploring the history of efforts to devise a general definition, assesses some problematic features of recent formulations of a universal offense of terrorism. It then assesses the coterie of United Nations conventions adopted since the 1960s.

By criminalizing specific terrorist activities including hijacking, hostage-taking, bombing, and terrorist financing, these conventions have avoided difficult questions as to the quintessence of terrorism, and instead have sought to suppress particular types of terrorist violence. The most significant innovation of the UN conventions is the establishment of a mandatory machinery for the prosecution and extradition of terrorist suspects.

terrorism, public international law, international criminal law

Abstract:
Following more than a decade of intransigence on climate change policy, the Australian Government is beginning to yield to sustained pressure from the community and business to enact comprehensive climate change legislation. As the environmental, economic, and security implications of global warming are better understood, there are growing calls to place emissions reduction targets within a binding legislative regime that contains both market-based measures (such as emissions trading) and regulatory interventions (such as mandatory efficiency standards). Adding impetus for national climate law reform are initiatives by other governments (including several Australian states) to enshrine emissions reduction targets in law. This Chapter critically examines the patchwork of existing legislation having a bearing upon climate change policy in Australia. It also speculates on the future shape and content of Australian climate change law as negotiations on a strengthened international climate regime gather pace.

Climate change, Australia, climate change law, environmental law

Abstract:
Considerable debate surrounds the appropriate mix of policies to drive fishing-led development among developing nations in the South Pacific. While South Pacific Small Island States have since the 1970s been committed to a policy of tuna-industry domestication, serious doubts have emerged as to whether it can deliver any meaningful improvements to the well-being of Pacific peoples. An alternative approach has been suggested by development economists which would see Pacific Island nations largely abandon direct involvement in the industry and return to collective efforts to secure reasonable access fees from distant water fishing nations that take the majority of the region's tuna catches. This article argues that one reason that this policy-shift has not been taken up by Pacific capitals is that tuna-industry domestication policies remain bound-up within the influential discourse of "resource nationalism." It is contended that any movement towards a more environmentally and developmentally sustainable ocean fisheries policy will require close engagement and transformation of this sovereignty-focussed narrative in a way that retains its attributes as a distinctive "Pacific Way" for the achievement of economic and social development.

marine policy, South Pacific, fisheries, sustainable development, discourse theory

Abstract:
In 2009, the 1959 Antarctic Treaty celebrates its fiftieth anniversary. Over its fifty-year existence the Treaty and the Antarctic Treaty System (ATS) built upon it, have promoted freedom of scientific research in Antarctica and the Southern Ocean. Despite the many successes of the Antarctic legal regime, there has been growing disquiet over the conduct by Japan, an Antarctic Treaty party, of its 'special permit' whaling program in the Southern Ocean. This program now has a lengthy history stretching back to the late 1980s, and has been undertaken purportedly in reliance on the 1946 International Convention on the Regulation of Whaling, which allows whaling for scientific purposes in limited circumstances. It has also been pursued on the assumption that the global whaling regime takes priority over the disciplines imposed by the regionally-focussed Antarctic Treaty System which seeks, among other things, to promote scientific research in Antarctica and to protect the Antarctic ecosystem. This article examines the interaction between the Antarctic and whaling regimes and argues that the main environmental text in the ATS, the 1991 Environmental Protocol, imposes obligations upon Japan to minimise or eliminate the environmental risks of its burgeoning Southern Ocean whaling program.

Public international law, Antarctica and Southern Ocean, regulation of whaling, Antarctic Treaty System, protection of the Antarctic environment

Abstract:
Notwithstanding the diversity and complexity of tenure systems operating in the developed and developing worlds, descriptions of them have tended to be distilled into a mere handful of tropes. Particularly influential has been the representation of customary tenure as primitive and an impediment to development. Set against this perspective is an expanding body of scholarship that has identified strengths in uncodified frameworks that regulate access to land and other resources. Among these benefits are said to include the plasticity and inclusiveness of customary tenure. This paper examines these two competing perspectives, with specific reference to tenure arrangements in Papua New Guinea, and suggests that in their essentialised formulation neither captures the complexity of relationships between land ownership systems and patterns of development. The point is made that there may be significant value in adopting hybridised approaches that provide formal legal recognition to existing customary systems of title.

land law, customary tenure, South Pacific law

Abstract:
This chapter assesses the extent to which international litigation holds promise as a means of addressing climate change. Proceedings may be initiated within a multiplicity of courts, tribunals and quasi-judicial bodies that operate on the international plane. We can identify three main types of international proceedings. First, there is what might be termed 'progressive' proceedings - those designed to bring positive outcomes in terms of mitigating, or adapting to, climate change, or compensating its effects. As in domestic settings, the chief value of such litigation is educative rather than in changing government behaviour. A second category of international climate litigation is what can be called ‘regressive’ proceedings, which may be invoked to prevent states, or groups of states, from adopting national or international climate policies that could interfere with other norms such as those relating to trade liberalisation. Most likely to assume prominence is a third type of proceedings, which can be called ‘administrative’ litigation, within and outside of the climate change regime established by the United Nations Framework Convention on Climate Change and the Kyoto Protocol, and any successor, which may be utilised to ensure that obligations under the regime are met. Although important, the ultimate value of administrative litigation is contingent upon the stringency of emissions limitation or reduction commitments established under the international climate change regime.

International law of climate change, environmental dispute settlement, Kyoto Protocol, compliance procedure

Abstract:
Review Essay: Bowling for Paranoid Nationalism: A Review of Michael Moore's Film Bowling for Columbine after Reading Ghassan Hage's Book Against Paranoid Nationalism.

Bowling for Columbine, nationalism, Michael Moore, Ghassan Hage

Abstract:
Considerable attention has been focussed on the difficulties posed by Antarctic claimants seeking to realise coastal state rights in the extended continental shelf appurtenant to claimed territories pursuant to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Those claimants that have so far made submissions to the Commission on the Limits of the Continental Shelf (CLCS) have each in some manner shown sensitivity towards the unique legal and geopolitical realities surrounding the question of Antarctic territorial claims. By comparison, little attention has been focussed on the subantarctic islands north of the Antarctic Treaty Area, that is beyond 60 degree south latitude. These islands, aside from the South Georgia and South Sandwich groups which are subject to a broader dispute, appear to be regarded as unproblematic. However, as the largely successful submission by Australia to the CLCS indicates, CLCS recommendations in relation to subantarctic islands may result in substantial extended continental shelf (ECS) penetration into the Antarctic Treaty Area. This situation raises interesting questions in relation to the established collective management of the Antarctic. For the first time there appears to be an objective international assignation (via UNCLOS and the CLCS process) of individual state rights to areas within the Antarctic Treaty Area. Whereas claimed territory within the Antarctic Treaty Area remains 'frozen' territory beyond the Antarctic may now be seen to generate preclusive rights within it. This, perhaps unanticipated Antarctic paradox, is the focus of this article.

public international law, Antarctica, law of the sea, extended continental shelf, Commission on the Limits of the Continental Shelf