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On Tuesday evening, the AIIA and Young Lawyers International Law Committee held their first joint event on the future of immigration and refugee law and policy in Australia. The event was a resounding success and was attended by more than 80 members of our respective organisations.

The discussion panel consisted of Sydney University professor, Mary Crock, whose specific research interests range from studies of the interaction between Parliament and the judiciary, to the legal rights of migrants and refugees. Her research and analysis of the various policies and laws enacted by the Australian Government exposed serious flaws in our approach to refugees and Mary’s passion added a dimension to the discussion that humanised the whole experience.

Mary was be followed by Kerry Murphy, a partner of D’Ambra Murphy Lawyers working on all aspects of migration law including administrative and judicial review. Kerry’s work has taken him to the many Detention Centres scattered throughout Australia and off-shore. Listening to some of his experiences and hearing about the hardship suffered in these camps was vital to appreciating the austerity of some of the immigration legislation passed in the last ten years.

Pouyan Afshar, the immediate past president of NSW Young Lawyers and an Associate at Baker & McKenzie, closed off the discussion with his account of the cultural and social elements that rarely gain a mention in these kinds of discussions. Drawing from his own experiences as a migration agent and working with refugees as an interpreter, Pouyan’s account of the economic, political and cultural dimensions of the debate regarding “illegal immigration” had a grounding affect that was the final ingredient required in such a discussion.

Immigration and refugee law in Australia has been thrown around the political landscape to emulate the same emotional reactions synonymous with crime and social welfare. This is not a political issue. As Mary states: “The number of refugees who come to Australia as asylum seekers – by plane or boat – is minute in world terms. The numbers are manageable. Most come because of prior connections with communities in Australia.” Australia has a legal, moral and ethical requirement to approach this issue as more than just a political one.

Discussions such as these are vital to understanding the real issues that face Australia regarding immigration and refugees and I’d like to thank our panellists for their insightful and grounded contribution to this debate.

If you would like to read more about this topic, please find below a selection of articles that deserve a read:

Adam Segal of the Council of Foreign Relationsrecently labelled State sovereignty as a more 19th century concern. Considering the continuing evolution of the Responsibility to Protect and events in Iraq, Afganistan, the former Yugoslav Republic of Macedonia, is Mr Segal correct? Are we becoming sufficiently globalised to consider State Sovereignty less of a concern than it was in the 19th century? The centrality and importance that debates over security and immigration have or had in most of the current or recent elections around the world argues that Sovereignty is far from dead. Nonetheless, the recent and continuing crisis in the global financial system provides support for Mr Segal’s position.

Are we seeing a trend away from the centrality of Sovereignty in international and domestic law? Are we approaching a tipping point, after which globalisation will continue to inexorably strip away Sovereignty? Alternatively, is the current global position a low point for Sovereignty, from which we will return to a less globalised position, at least from the point of view of international and domestic law? Your thoughts?

It seems that momentum continues to grow towards the “responsibility to protect” (or R2P) becoming a norm of international law. The Centre for Conflict Resolution, a South African organisation based at the University of Cape Town, South Africa, with “a pan-African focus” (that, according to its website, plays a leading role in contributing towards the resolution of conflict and the reduction of violence in Africa) has published a report titled Africa’s responsibility to protect. The report makes ten key recommendations implementing the R2P principle, which it notes “gained international legitimacy since its adoption at the UN World Summit in September 2005”.

(The Canadian government sponsored International Commission on Intervention and State Sovereignty (ICISS) report, co-chaired by Gareth Evans and Mohamed Sahnoun, developed the principle in 2001. Further information can be found on the international crisis group R2P website.)

The question, then, is: how does the principle interact with the international obligations of Member States of the UN under Article 2.7 of the UN Charter:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

Does the principle rely upon the actions of the Security Council under Chapter VII? Does that in effect neuter the R2P principle?

The R2P principle is clearly inconsistent with Article 2.7. Does the principle only apply to the extent that it is not inconsistent with Art 2.7? Is the adoption of the principle a new means of overriding prior, inconsistent law, notwithstanding that that prior law is expressed in the words of one of the most important treaties? Are we seeing a pragmatic aproach to the thorny problem of how to modify the Charter? Will the approach lead to larger problems down the track, with States able to avoid their obligations under treaty? Has the adoption demonstrated the Member States’ understanding of how they interpret the Charter?

R2P is, in my mind, an essential evolution of public international law. Unfortunately, the inconsistency between the adopted principle and existing treaty law will set precedent. How this precedent will be used in future remains uncertain. What is not uncertain it that it will be used. It seems that the approach taken in adopting the principle is the least worst approach.

Over to you.

As you are now no doubt aware,  Kosovo declared its independence from Serbia during an emergency session  of parliament on Monday, 18 February 2008. Serbia has vowed to never recognise the breakaway State. The USA has already congratulated Kosovo on its independence and internationally recognised its new status. Unsurprisingly, Russia and China have refused to do so. In the EU, Britian, France, Germany and Italy have recognised the move. States such as Spain and Greece refuse to do so, being concerned over domestic separatist movements.

Notably, the USA’s recognition is specifically worded to avoid setting precedent – Dr Rice stated that the case of UN-run Kosovo was unique and would not set a precedent for other ethnic secessionist movements around the world. UN Security Council Resolution 1244 placed Kosovo under interim UN administration in 1999. The resolution allowed an international civil and military presence in Kosovo, a Serbian province.

Over to you: what can we expect to flow from this? Will Kosovo be recognised by the UN, noting China and Russia’s opposition. Will Kosovo become another “Chinese Taipei”?

Christopher Langman, current head of the DFAT’s Office of Trade Negotiations, with particular responsibility for Australia’s participation in the WTO, presented a seminar to the Lowy Institute today.

Read the rest of this entry »

I highly recommend looking at the following sites and subscribing to their newsfeeds or email alerts:

 The International Crisis Group is a very highly respected international non-government organisation (NGO) focused on preventing and resolving conflict situations through analysis and advocacy.

Another great site for international news, and especially for those with a specific interest in International Humanitarian Law is the Human Security Report Project. The Project is a research body making that research, as well as international news, public.

Transparency International is another highly respected NGO, focusing upon combating corruption around the world. Of particular relevance to lawyers is the corrosive effect corruption has upon the rule of law and all the issues stemming from that, such as respect for the law and access to justice.

Jurist is a news site published by the University of Pittsburgh’s School of Law, which provides legal news and articles submitted by (often most highly qualified) publicists.

Lastly, and certainly not least, is perhaps the capital s “Source” site for international news and developments in international law and relations, the United Nations. For their news service, click here.

The Department of Foreign Affairs and Trade (DFAT) has invited submissions on the implementation of the International Trade Integrity Act (2007) (the Act). The Act implements the first of the recommendations of the Cole Commission, and focuses upon Australia’s obligation to implement the sanctions of the United Nations Security Commission (UN-SC).  That obligation is implemented through the Charter of the United Nations Act 1945  and the Customs Act 1901.

The timetable for the submissions is tight, and will require work over this weekend, 13 and 14 October 2007.

Please contact bothYu Zhang (Yu_Zhang@courts.nsw.gov.au) and myself, Robert Dunworth (rnd@cbp.com.au), by close of business tomorrow, Thursday, 11 October 2007, if you are interested in researching and drafting the NSW Young Lawyers International Law Committee submissions to DFAT in response to the above invitation.

We look forward to working with you.

The Lowy Institute is an independent international policy think tank based in Sydney. Its objective is to generate new ideas and dialogue on international developments and Australia’s role in the world. Its mandate is broad. It ranges across all the dimensions of international policy debate in Australia – economic, political and strategic – and it is not limited to a particular geographic region.

Check out their website for numerous useful research papers and project information.

http://www.lowyinstitute.org/

About this site

THE RED TELEPHONE is the newsblog and discussion forum of the International Law Committee of NSW Young Lawyers, a division of the Law Society of New South Wales.

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