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Abstract:
Pressure to automatically exclude terrorists from asylum has increased since the late 1990s, including exclusion based on mere membership of terrorist organizations. Such pressure has emanated from the UN General Assembly, the Security Council, regional organizations, States and even UNHCR. Yet terrorism is not listed as a separate ground of exclusion in the 1951 Refugee Convention, and there is no internationally accepted definition of terrorist offences which could serve as a principled basis of exclusion. In the absence of an international definition, reference to terrorism in exclusion decisions endangers refugees. Exclusion must be based on an individual assessment of whether a person meets the criteria for exclusion in Article 1F of the 1951 Refugee Convention.

Refugee law, terrorists, asylum

Abstract:
This paper critically examines three key recent cases of superior courts concerning restrictions on religious symbols: a prohibition on wearing headscarves in Turkish universities, upheld by the Grand Chamber of the European Court of Human Rights (Sahin v Turkey)(2005); a restriction on a particular kind of Islamic dress in an English school, upheld by the British House of Lords (R (on the Application of Begum) v Headteacher and Governors of Denbigh High School)[2006]; and an absolute ban on wearing a Sikh kirpan (a symbolic dagger) in a Quebecois school, struck down by the Canadian Supreme Court (Multani v Commission scolaire Marguerite-Bourgeoys)[2006]. Each case focused on similar arguments about freedom to manifest one's religion, and dealt with subsidiary arguments about the impact of the respective restrictions on the right to education. While each case proceeded from different factual circumstances, there are considerable differences in their approaches to what were essentially the same human rights law questions. The decision of the European Court of Human Rights is the least satisfactory in both its reasoning and its result; the House of Lords arguably reached the correct result but its reasoning was abbreviated; and the Canadian Supreme Court properly reasoned its way to a correct result.

headscarves, restrictions, freedom of religion, right to education, discrimination, human rights, terrorism, extremism

Abstract:
There have been numerous unsuccessful attempts to define terrorism generically in international treaty law since the 1920s, from early conferences on the unification of criminal law to efforts in the League of Nations, the International Law Commission, and the UN General Assembly. While these sources do not carry great weight as evidence of customary law, they illustrate the recurring normative and political disputes surrounding definition and elucidate the basic features of an international prohibition and/or crime of terrorism, as perceived by different international actors. The recurrent attempts at definition indicate that the international community attaches considerable normative importance to it. Drafting of a UN Comprehensive Terrorism Convention continues in the Sixth Committee, and the UN High-Level Panel on Threats, Challenges and Change advocated definition in treaty law in late 2004. Generic definition of terrorism can capture and stigmatize the political motives which distinguish terrorism from ordinary violent crime, or transnational organized crime for financial benefit. Following an historical pattern, agreement on the scope of any exceptions to a definition of terrorism remains the key obstacle, although much of the argument about exceptions is ideological, not substantive.

international law, definition, terrorism, human rights, General Assembly, International Law Commission, International Criminal Court

Abstract:
This paper first considers the policy reasons for why the international community should define terrorism, focusing on arguments that terrorism: (a) seriously violates human rights; (b) jeopardizes the State, deliberative politics and the constitutional order which sustains rights; (c) is politically or publicly motivated violence distinguishable from private violence; (d) threatens international peace and security; and (e) requires definition to control the operation of mandatory Security Council measures since 2001, which have empowered States to unilaterally define and criminalize terrorism to suit their own sovereign interests. Secondly, this paper briefly outlines recent proposals for an international definition of terrorism before extrapolating the basic elements of an international definition of terrorism from the policy reasons for definition discussed in the first part of this chapter. Finally, claims that certain conduct should be excluded from any definition of terrorism are considered. A coherent legal definition of terrorism might help to confine the misuse of the term by national governments against their political opponents and in ways which seriously undermine fundamental human rights.

defining terrorism, human rights, international law, peace and security

Abstract:
Controversy has erupted in many jurisdictions about the inclusion of a motive element in the criminal law definition of terrorism, in particular whether reference to a political, religious or ideological purpose or cause unjustifiably interferes in freedom of expression and freedom of religion, or invites racial or religious discrimination. This article argues that a compelling reason for including a motive element in an international or domestic definition of terrorist offences is that it helps to differentiate terrorism from other kinds of serious violence which may also generate fear (such as common assault, armed robbery, rape, or murder), while also according with commonplace public understanding of what constitutes terrorism. As such, the criminal law should recognise this distinction in defining terrorism, so as to more accurately express what is considered by the international and national communities to be distinctively wrongful about terrorism. Inevitably, this view reflects judgments of policy, politics and ethics, which may not be shared by all; but it is the critical impulse underlying arguments for including motive in definitions of terrorism.

terrorism, motive, definition, criminal law, freedom of expression, freedom of religion, discrimination, human rights

Abstract:
This paper first outlines the phenomenon of climate-induced displacement, with a focus on displacement from small island States (particularly in the Pacific), on which the impacts of climate change are well documented and keenly felt (although the challenges manifested there have parallels in vastly different contexts). The paper next reviews how existing international law applies to those displaced or at risk of displacement from the effects of climate change. Having identified the limitations of existing international law in responding to the needs of those displaced by climate change, this paper then focuses on whether the emerging concepts of 'human security' and the 'responsibility to protect' could provide useful frameworks for identifying and analyzing the rights and interests at risk and for crafting responses to those risks.

international law, climate change, human security, human displacement, international environmental law, human rights, humanitarian law

Abstract:
The first part of this article outlines the purported causes of terrorism advanced in the UN General Assembly since the 1970s, and the contrary views of States on whether these causes ought to justify or excuse terrorist violence - particularly self-determination or national liberation violence. The second part examines how a limited range of justifications for any new international crime of terrorism could be accommodated by individual defences in international criminal law (including self-defence, and duress/necessity). It then proposes that non-State group actors accused of terrorist crimes should be entitled to plead 'circumstances precluding wrongfulness', drawn analogously from the law of State responsibility. While a narrow class of terrorist acts may be excused by individual or group defences, some acts considered justifiable may still fall outside the scope of defences. To maintain the law's legitimacy, the final part argues that some crimes of terrorism could be regarded as 'illegal but justifiable' (or at least, excusable) in stringently limited, objectively verifiable circumstances, possibly under the rubric of a 'collective defence of human rights'.

terrorism, international criminal law, defences, causes, human rights, self-determination, State terrorism, national liberation, religious violence

Abstract:
In the absence of a bill of rights in Australia with which to evaluate and challenge sophisticated rights-based arguments for evaluating anti-terrorism laws, those faced with arguably excessive laws are left with little upon which to hang their challenges. In the High Court case of Thomas vs. Mowbray (2007) 237 ALR 194; 81 ALJR 1414; [2007] HCA 33, a classic double attack on constitutional grounds was mounted against the imposition of a control order on Joseph (Jack) Thomas under Div 104 of the Criminal Code (Cth) first, Chapter III arguments about judicial and non-judicial power, and secondly, arguments about lack of legislative power. This comment briefly sets out the Chapter III arguments before focusing on the legislative power issues (specifically, whether the defence and external affairs powers support control orders), questioning whether the High Court exhibited too much deference towards government concerns about security threats.

arbitrary detention, terrorism, emergency powers, human rights, constitutional power, defence power, external affairs power, control orders

Abstract:
The use (and misuse) of law to counter terrorism has proliferated at the national, regional and international levels since the terrorist attacks on the United States of 11 September 2001. Asia is no exception, although the roots of counter-terrorism laws run much deeper than those which grew out of 9/11. What is relatively new in the region after 9/11 is the increase in the scope and range of specific anti-terrorism laws, including those which generically define terrorism for various purposes. Not surprisingly, in the absence of an international definition of terrorism, some national definitions of terrorism in Asia are very wide indeed. As such, this article will examine a number of key counter-terrorism legal initiatives at the regional level in Asia.

terrorism, cooperation, Asian law, regional law, ASEAN, APEC, SAARC, human rights

Abstract:
Without a bill of rights to bring Australian human rights and administrative law together, the Australian relationship between the two is a contradictory story of convergence and divergence. This paper first traces and compares the values underlying both areas of law, before exploring a number of specific issues spanning both areas such as the concept of proportionality, the public/private distinction, and the 'right' to administrative justice. The paper then examines how interpretive principles are employed by the courts to safeguard rights, at least where they are not expressly limited by statute. The final part of this paper focuses on two institutional mechanisms which assist in protecting human rights: the Commonwealth Ombudsman, and scrutiny of bills by parliamentary committees. The aim of this chapter is not to comprehensively examine every human rights issue arising in Australian administrative law, but to outline some of the key trends and patterns.

administrative law, human rights, bill of rights, statutory interpretation, legitimate expectation, ombudsman

Abstract:
International debate about the problems of defining terrorism historically centred on the General Assembly. Yet, between 1985 and 2001, the Security Council adopted a range of measures addressing terrorist threats to peace and security, and analysis of the incidents involved reveals much about the Council's understanding of "terrorism". After September 2001, problems of definition became acute, since the Council adopted general legislative measures against terrorism - with serious legal consequences - without defining it. The Council has encouraged States to unilaterally define terrorism in national law, permitting wide and divergent definitions. A non-binding Council definition of late 2004 fails to remedy the serious difficulties caused by the lack of an operative definition in Council practice.

definition, terrorism, international law, United Nations, Security Council

Abstract:
Paradoxically, justifications for State torture and non-State terrorism are strikingly similar, often drawing on the same underlying logic, reasoning, ethics, politics, ideology and philosophy. This chapter explores the range of claims, justifications and excuses which have been invoked to support arguments for torture and terrorism, including ideas about the defence of human rights, asymmetry of power, the simultaneous antiquity and malleability of the law, and exceptional doctrines such as 'necessity'. While the absolute prohibition of torture in international law is appropriate and ought to be defended, by contrast there are considerable inadequacies in the legal regulation of terrorism, resulting in the complicity of international law in repressing legitimate struggles against political oppression.

Abstract:
Alarming predictions have been made about the potential for climate change to fuel war and other forms of violent or social conflict, particularly due to resource scarcities (including food, water and energy) driven by climate change. This article first charts the likely security risks arising from the effects of climate change, including traditional security threats (such as armed conflict) and non-conventional or ‘human security’ risks (particularly as regards access to resources – food, water, energy – that are essential to human dignity). The article then examines the spectrum of international law implications of the relationship between climate change and these forms of insecurity. While the spectre of ‘climate wars’ is fanciful, the effects of climate change are likely to stimulate domestic and global tensions and to aggravate other underlying causes of conflict. Conventional and human security problems will arise from distributional conflicts over scarce resources (food, water, energy, land and seas), disputes over maritime boundaries, competition in the polar regions, pressure upon public health infrastructure, changing migration patterns, potential for radicalisation, and systemic stresses upon weak States, economies and social orders. Such consequences do not inexorably lead to outbreaks of violence or political instability, but they may be contributing factors given the right constellation of conditions. With the processes of climate change already well underway, even the rapid conclusion of an effective post-Kyoto global climate change regime (such as a carbon tax or cap-and-trade scheme) would not be sufficient to avert the security risks that are already in formation. It is vital, therefore, to consider the range of ways in which public international law can be marshalled to prevent, contain and remedy the consequent security threats. Problems of identifying relevant primary obligations and attendant problems of causation limit the utility of relying upon principles of State responsibility to confront climate-related security risks. More promising are the specialised branches of international law (such as environmental law and the law of the sea), some of which offer prospects for responding to the challenge and others which would require more radical refashioning. Engaging the specialised branches of international law enables a thicker, more systemic response to the security risks attending climate change and is likely to prove more effective than relying on singular institutions (such as the Security Council) or normative frameworks (such as a new global climate deal). The costs of modifying international law in these ways is undoubtedly less than the human and financial costs which will likely ensue from resource conflicts and sovereign competition aggravated by unmitigated climate change.

climate change, environmental conflict, resource scarcity, climate wars, climate change conflict

Abstract:
United Nations Security Council adopted non-binding Resolution 1624 calling on States to prohibit by law incitement to commit a terrorist act or acts, prevent incitement, and deny safe haven or entry to inciters. The resolution was sponsored by the United Kingdom during the aftermath of the July 2005 terrorist bombings in London which announced new policy guidelines governing deportation, which listed unacceptable behaviours by non-UK citizens in Britain or abroad, which involved expressing views that foment, justify or glorify terrorist violence in furtherance of particular beliefs, and seek to provoke others to terrorist acts.

criminalization, incitement, terrorism, international law, sedition, freedom of speech, freedom of expression

Abstract:
Much of the international legal debate about defining terrorism has focused on the ideological disputes, or technical mechanics, of definition, rather than on the underlying policy question of why-or whether-terrorism should be internationally criminalized. Since most terrorist acts are already punishable as ordinary criminal offences in national legal systems, it is vital to explore whether-and articulate why-certain acts should be treated or classified as terrorist offences rather than as ordinary national crimes such as murder, assault or arson. Equally, it is important to explain why terrorist acts should be treated separately from existing international crimes in cases where conduct overlaps different categories, particularly the existing sectoral treaty offences, war crimes and crimes against humanity. This article argues that terrorism should be defined and criminalized because it may be a threat to human rights, the stability of governance and to international peace and security. There is also better conceptual value differentiating political violence from other crime which causes fear.

criminalization, terrorism, definition, international law

Abstract:
This paper focuses on the growing pressure to automatically exclude suspected terrorists from refugee status since the late 1990s including exclusion based on mere membership of terrorist organizations. As the first part of this paper shows, such pressure has emanated from the UN General Assembly, the Security Council, regional organizations, States and even the UN High Commissioner for Refugees (UNHCR). Yet, as the remainder of the paper illustrates, terrorism is not listed as a separate ground of exclusion in the 1951 Refugee Convention, and there is no internationally accepted definition of terrorist offences which could serve as a principled basis of exclusion. In the absence of an international definition of terrorism, operative legal reference to terrorism in exclusion decisions endangers refugees and violates international refugee law. This chapter argues foremost that exclusion must be based on an individual assessment of whether a person meets the specific criteria for exclusion in Article 1F of the 1951 Refugee Convention. Further, the existing exclusion grounds - though misapplied by some States in practice - are adequate and appropriate for addressing the serious challenges posed by modern terrorism.

security, refugees, 'war on terror', terrorism, exclusion

Abstract:
This article considers how international law responds, fails to respond, and ought to respond, to the special global problems (including conflict) posed by increasing resource scarcity, particularly shortages of food, water and energy. It demonstrates that international law has been historically poor at articulating and realizing any aspiration of global distributive justice, despite some promising developments in specialised branches of law such as international environmental law and the law of the sea. It argues that distributive justice is an important global ethical principle which ought to animate and underpin the international legal order, and that there is sufficient global political solidarity and community to enable such a principle to be pursued. Distributive justice can assist in addressing poverty and defusing resource conflicts. Embedding a principle of distributive justice is ultimately likely to enhance the legitimacy of the international legal order which, in the long run, will help to establish the conditions for human dignity, shared prosperity and global peace.

climate change, resource scarcity, distributive justice, right to development, new economic order, environmental conflict

Abstract:
Amidst the understandable enthusiasm for enlarging the traditional state-centred view of security and embracing a "human security" agenda, little scholarly attention has been paid to the implications of this shift for international law. This article first charts the scope and genesis of "human security," including within the United Nations and in the Asia-Pacific region, and traces the views of key Asian governments on the concept. It then analyses the relationship between human security and human rights and highlights the likely adverse impacts on human rights law. The remainder of the article considers how the human security agenda may destabilize the constitutional distribution of powers among UN organs under the UN Charter, especially by transferring power away from the more participatory General Assembly and towards the less representative and less accountable Security Council. In line with the position of some Asian States, this article reasserts that UN organs other than the Security Council, along with other major international institutions, are the appropriate bodies within which to pursue and address human security issues. In particular, the General Assembly and the Economic and Social Council require revitalization to avoid the trap of securitizing issues that are better framed as developmental and social concerns.

human security, Asia-Pacific, human rights law, non-traditional security threats

Abstract:
There has been considerable ambivalence in the response of the international community and different national governments towards the problem of how to respond to individual terrorist acts and sustained campaigns of terrorist violence. Responses vacillate between a desire to punish and deter terrorists through the strict application of the criminal law, and counter impulses to temper or even suspend the application of the law to mitigate the potential harm from exceptional threats of extreme violence. This paper first outlines how international law has responded to the question of amnesties for serious international crimes, before extracting and elaborating some basic guidelines for their use. It then specifically examines whether terrorist acts raise similar or different considerations in relation to amnesties than other serious international crimes, before focusing on the impacts of terrorism amnesties on international security and justice issues.

terrorism, international criminal law, amnesties, pardons, peace agreements, transitional justice, peace

Abstract:
This article illuminates the points at which indigenous peoples and their legal systems may be raised in general courses on public and private international law and in courses on specialised areas of public international law (including international intellectual property; international environmental law; international human rights law; international law of the sea; cultural heritage law; international economic law; international criminal law; international labour law). (1) In private international law, the recognition of indigenous customary law can be characterised as raising classic conflict of laws issues concerning the choice of substantive law applicable to a particular dispute and the persons involved in it. In places where indigenous legal institutions persist, it may also be necessary to resolve a choice of 'jurisdiction' question (so to speak, for there will seldom be indigenous 'courts' readily equivalent to civil or common law institutions). The teaching of indigenous issues as part of a private international law curriculum can shed light on the diversity of law systems and institutions which may be engaged by that subject, beyond the more typical (and in some ways more straightforward) 'conflicts' arising between different national or sub-national (federal) law systems. (2) In public international law, indigenous peoples are central to the historical development of foundational concepts such as acquisition of title to territory, sovereignty, Statehood, colonization and decolonization, self-determination, legal personality, and treaty-making. In addition, indigenous peoples surface in numerous specialised branches of public international law, including human rights, environmental law, law of the sea, intellectual property law, cultural heritage law, economic law, criminal law, and labour law. Whether an international law of indigenous peoples per se has emerged, or by contrast general international law applies to indigenous peoples in particularised ways, is a ripe jurisprudential question which can itself be taught as a theoretical question of some importance in the development (and diversification and fragmentation) of international law as a whole.

indigenous peoples, private international law, public international law, conflict of laws, international law teaching, curriculum development, legal education

Abstract:
This article focuses on an established area of Australian law which has been recently redeployed to restrict freedom of expression for anti-terrorism purposes. Long a field of controversy, particularly in the arts, literature and student media, censorship law is a politically malleable tool which has now been applied ostensibly to avert the incitement of terrorism. This article analyses two decisions of Australia's Classification Review Board in mid-2006 to refuse classification to two radical Islamic publications concerning 'jihad': Join the Caravan and Defence of the Muslim Lands. It first outlines the reasons for the decisions, before questioning whether the decisions were correctly made. It then examines whether the criteria for refusing classification are appropriate for dealing with religious texts, particularly in a climate of pervasive anti-terrorism sentiment which increasingly devalues freedom of expression as something which jeopardizes the higher public good of security.

terrorism, censorship, classification, freedom of expression, freedom of religion, pluralism

Abstract:
Terrorism was first confronted as a discrete subject matter of international law by the international community in the mid-1930s, following the assassination of a Yugoslavian king and a French foreign minister by ethnic separatists. The League's attempt to generically define terrorism in an international treaty prefigured many of the legal, political, ideological and rhetorical disputes which plagued the international community's attempts to define terrorism in the 50 years after the Second World War. Although the treaty never entered into force following the dissolution of the League itself, the League's core definition has been highly resilient and has influenced subsequent legal efforts to define terrorism. While the League's 1937 Convention for the Prevention and Punishment of Terrorism is often referred to obliquely in international legal discussions of terrorism, the drafting of the Convention has seldom been intensively analysed. By closely examining its drafting, this article elucidates how the drafters of the Convention agreed on a definition of terrorism, and why they rejected alternative definitions. In doing so, it hopes to refresh and enliven current international debates about definition in the wake of the United Nation's 60th anniversary year, which saw renewed emphasis placed on the quest for definition.

Behçet, Corticosteroids, Erythema nodosum, Genital ulcer, Therapy

Abstract:
Journalists and war correspondents have long assumed a special importance in investigating and documenting war crimes and other human rights violations in armed conflict. In recent years, threats to the safety of journalists have proliferated. This article considers how international law protects journalists and media personnel and objects from violence. The examines the legal regimes applicable in international armed conflict, followed by non-international conflict, and finally violent situations (or public emergencies) beneath the level of armed conflict (such as low-level insurgency, terrorism or other domestic unrest). While the normative legal frameworks protecting journalists and media objects are well developed, the application of those norms raises complex interpretive issues which are examined in this article, while there remains the residual problem - common to humanitarian law as a whole - of securing enforcement and implementation of those norms.

law of armed conflict, international humanitarian law, journalists, media, war crimes

Abstract:
This article is interrogates the international law arguments articulated between the 1940s and 1980s by the influential Australian international law and jurisprudence scholar, Sir Julius Stone. In particular, it critically examines Stone’s views on key controversies which still resonate today: the right of self-determination of peoples in Palestine; the legality of foreign occupation of territory; the lawfulness of Israeli settlements in occupied territory; the applicability of the 1949 Geneva Conventions to occupied territory and to the conflict as a whole; the use of force against “terrorists”; and the legal position, rights and prospects of Palestinian refugees. Many of Stone’s positions on critical international legal issues in the Israel/Palestine conflict stepped outside even generous zones of plausible or reasonable interpretations of the law, even on the law as it then often ambiguously stood, and certainly in hindsight. His casting the Jewish people as the only victims who mattered in that dispute fatally undermines the prospects for a just and equitable application, or creative adaptation, of international law to the Israel/Palestine dispute.

Israel, Palestine, self-determination, Julius stone, law of occupation, palestinian refugees, right of return, Palestinian occupied territories, Israeli settlements, Geneva conventions, use of force, terrorism

Abstract:
While most terrorism remains localised, aspects of some transnational terrorism and counter-terrorism have been simultaneously enabled and constrained by globalisation. This paper addresses both the material, causative and legal dynamics of globalisation in relation to terrorism and counter-terrorism. That is, firstly, how terrorism and counter-terrorism are immediately enabled by certain material characteristics of globalization (the movement of goods and people, transport, communications technology and international finance); secondly, how terrorism is 'caused' by resistance to certain dynamic or systemic processes of globalisation (particularly hegemonic economic, political and cultural forms); and thirdly, how legal responses to terrorism often have globalising ambitions or effects (paradoxically sometimes fuelling further terrorism). Legal responses to terrorism have been ‘global’ and pluralistic, encompassing international, regional, national, non-State and private norms and processes (including the top-down incorporation of international treaty norms into domestic law; the more decentralised domestic incorporation of Security Council obligations; the transplantation of domestic norms across domestic legal orders; and the uplifting of national norms to the international plane). The promise of globalization for countering terrorism is that it enables a cosmopolitan dialogue in the face of shared global risks, which may ultimately help to ease the inter-cultural angst, religious differences, and economic and political alienation which drive the construction of some terrorist identities and animate their recourse to violence.

globalization, global law, international law, terrorism, security council, Al Qaeda, Islam

Abstract:
The killing of five young Australian, New Zealander and British journalists at the village of Balibo during the Indonesian invasion of Portuguese Timor in 1975 has long been surrounded by controversy, obfuscation and intrigue. While many suspected that the journalists were deliberately killed by clandestine Indonesian military forces or proxy militias, for 35 years Indonesia has maintained that the journalists were collaterally killed in the crossfire of battle, or were active participants in hostilities. Despite numerous executive inquiries over 30 years, it was not until late 2007 that a judicial inquiry into their deaths was held in Sydney, which found that the journalists were wilfully killed by Indonesian forces, in circumstances likely amounting to war crimes. The Australian Federal Police is currently considering whether to prosecute and extradite Indonesian suspects, including a former government minister. This article picks up where the recent coronial inquest left off by examining whether the killings amounted to war crimes which can be prosecuted. In doing so, it investigates the complex nature of the conflict (international and non-international); the obligations of the parties (Indonesia, Portugal, Australia and non-state forces); the attribution of non-State conduct to Indonesia; the legal status and protection of journalists; universal jurisdiction for war crimes and Australia's 1957 implementing legislation (under which there has never been a prosecution); difficulties of evidence and inter-temporal law; immunities and non-justiciability; and prospects for extradition under a bilateral agreement between Australian and Indonesia.

war crimes, international armed conflict, non-international armed conflict, universal jurisdiction, extradition, state immunities, non-justiciability, East Timor, journalists

Abstract:
This article examines the scope of the obligation under article 5 of the Genocide Convention to enact domestic legislation giving effect to the Convention, in particular to criminalise genocide in domestic law. That provision assumes central importance in giving domestic, practical effect to the Convention and its aspiration to prevent and punish genocide. The article examines the scope of article 5 in light of State practice on its implementation and in relation to the drafting history.

genocide, genocide convention, crime of genocide, obligation to criminalise genocide, international criminal court