Law Commons^™

Identities In Transition: South Pacific, Paul Sharrad

Faculty of Law, Humanities and the Arts - Papers (Archive)

Surveys the history of fiction production in the South Pacific as a process of creating new identities as print culture impinges upon oral traditions.

The Law Of The Sea Convention And Sea Level Rise In The Light Of The South China Sea Arbitration, Stuart B. Kaye

Faculty of Law, Humanities and the Arts - Papers (Archive)

Sea level rise from anthropogenic climate change is an increasing concern for the international community and especially for coastal States. The prospect of whole islands disappearing under rising waters raises serious questions as to the impact upon maritime jurisdiction and the ability of the United Nations Convention on the Law of the Sea to deal with the inundation of large areas of territory. The South China Sea Arbitration Tribunal recently considered these questions. Here, the Tribunal relied on a high standard for what constituted human habitability under Article 121 of the Law of the Sea Convention, which likely will have …

The Arbitral Award In The Matter Of The South China Sea Between The Philippines And China What Are The Implications For Freedom Of Navigation And The Use Of Force?, Cameron Moore

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article considers the implications of the Award for freedom of navigation and the use of force in the South China Sea, identifying the conclusions that can be drawn from the Award and the questions that remain. The Award also indirectly raised the question of the use of force to defend navigational rights. This article therefore revisits the Corfu Channel Case for the light it may shed on the use of force and freedom of navigation in the South China Sea. This leads to questions of the danger of miscalculation and the potential importance of the Code for Unplanned Encounters …

Chinese Transnational Cinema And The Collaborative Tilt Toward South Korea, Brian Yecies

Faculty of Law, Humanities and the Arts - Papers (Archive)

To shed light on the important and growing trend in international filmmaking, this chapter investigates the increasing levels of co-operation in co-productions and post-production work between China and Korea since the mid-2000s, following a surge in personnel exchange and technological transfer. It explains how a range of international relationships and industry connections is contributing to a new ecology of expertise, which in turn is boosting the expansion of China’s domestic market and synergistically transforming the shape and style of Chinese cinema.

How Will The Next Philippine President Navigate The Turbulent Waters Of The South China Sea?, Lowell Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

The leadership change in Manila after the May 2016 presidential elections will certainly have significant impact on the country's policy towards China over the ongoing dispute in the West Philippine Sea. The change in Philippine leadership may portend either continuity or dramatic foreign policy shifts when it comes to this heated issue.

The South China Sea Issue And Philippine President-Elect Rodrigo Duterte, Lowell Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

No abstract provided.

The Southern Tree Of Liberty Explained: Class Struggle, Popular Democracy And Representative Government In New South Wales Before, Terence Irving

Faculty of Law, Humanities and the Arts - Papers (Archive)

In 2006 The Federation Press published my book, The Southern Tree of Liberty - The Democratic Movement in New South Wales before 1856. It received better reviews overseas than in Australia, where some reviewers persisted in assimilating it to the standard account of a British-influenced, elite-led, peaceful transition to responsible self-government in 1856. The "radicals" that the book concentrated on were seen as just part of that story, a tiny group of agitators whom no one took seriously - certainly not the established historians who wrote those reviews

Stemming The Black Tide: Cooperation On Oil Pollution Preparedness And Response In The South China Sea And East Asian Seas, Robin M. Warner

Faculty of Law, Humanities and the Arts - Papers (Archive)

As global hydrocarbon resources on shore steadily decline, there has been an increase in offshore hydrocarbon exploration and exploitation. Some estimates suggest that there are over 6,000 offshore oil and gas installations worldwide. Notwithstanding simmering disputes over the territorial sovereignty and associated maritime zones of a number of island groups in the South China Sea and adjacent East Asian seas, exploration for offshore oil and gas resources under national and joint development regimes has become a prominent feature of these areas. It is estimated that there are now over 1,390 offshore oil and gas installations in the South China Sea …

Institutional Influences On The Parameters Of Criminalisation: Parliamentary Scrutiny Of Criminal Law Bills In New South Wales, Luke J. Mcnamara, Julia Quilter

Faculty of Law, Humanities and the Arts - Papers (Archive)

Within criminalisation scholarship, there has been little engagement with the work of ‘real-world’ mechanisms for promoting principled law-making, like the activities of parliamentary scrutiny committees. This article reports on an examination of the New South Wales (‘NSW’) Legislation Review Committee’s findings and recommendations in relation to all criminal law bills during the period 2010–12 and assesses the impact of the Committee’s recommendations on the passage of bills through the NSW Parliament. It considers whether the potential for scrutiny committees to play an effective role in delineating the legitimate boundaries of criminalisation is realised in practice.

The Rise Of The Global South, The Imf And The Future Of Law And Development, Gabriel Garcia

Faculty of Law, Humanities and the Arts - Papers (Archive)

Following the onset of the Asian Financial Crisis the world has witnessed a re-accommodation of the global financial system. In the particular case of middle-income countries they have disentangled themselves from the conditionality of the IMF and grown into more assertive actors in international forums, proposing new alternative mechanisms to become more financially independent and for the provision of development assistance. This article critically reviews the new reality by assessing the strategies deployed by developing countries to reduce the IMF's influence, and explores the potential consequences of the rise of middle-income nations for Law and Development.

The Developmental State Model: A Comparative Analysis Of Japan Approach And The New Developmental State In South America, Gabriel Garcia

Faculty of Law, Humanities and the Arts - Papers (Archive)

This is a working-in-progress paper on the Developmental State Model: a Comparative Analysis of Japan's Approach and the New Developmental State in Brazil. The case of Brazil was the topic of a book published in 2013 edited by Trubek, Alviar Garcia, Coutinho and Santos titled 'Law and the New Developmental State, the Brazilian Experience in Latin American Context'. The volume contains contributions that argue a 'new' developmental state model is emerging in Brazil. A preliminary literature review suggests that the Brazilian government has incorporated in its development policies some of the features that defined the Japanese developmental state a few …

Food Safety Offenses In New South Wales, Australia: A Critical Appreciation Of Their Complexities, Abu Noman Mohammad Atahar Ali, S M. Solaiman

Faculty of Law, Humanities and the Arts - Papers (Archive)

Food is essentially a primary need of all life to remain alive. Faults or carelessness of human beings renders foods unsafe, which may cause disease and death. This article examines selected food safety offenses of New South Wales aimed at assessing their definitional clarity and penal rationality looking through the lens of an offender's culpability. It carries out a critical analysis based on archival materials and concludes that the present offense provisions hold significant merits to regulate food safety; however, further clarity of their inherent complexities could enhance their efficacy.

Defining Eez Claims From Islands: A Potential South China Sea Change, Robert Beckman, Clive Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

In the face of seemingly intractable territorial and maritime disputes in the South China Sea, the article examines how the 1982 United Nations Convention on the Law of the Sea (LOSC), sets out what maritime claims States can make in the South China Sea and how it establishes a framework that will enable States to either negotiate maritime boundary agreements or negotiate joint development arrangements (JDAs) in areas of overlapping maritime claims. It provides an avenue whereby the maritime claims of the claimants can be brought into line with international law, potentially allowing for meaningful discussions on cooperation and maritime …

Speaking Too Soon: The Sabotage Of Bail Reform In New South Wales, D. Brown, Julia Quilter

Faculty of Law, Humanities and the Arts - Papers (Archive)

Within just over one month of coming into operation in May 2014, the new Bail Act 2013 (NSW), a product of long-term law reform consideration, was reviewed and then amended after talk-back radio ‘shock jock’ and tabloid newspaper outcry over three cases. This article examines the media triggers, the main arguments of the review conducted by former New South Wales (NSW) Attorney General John Hatzistergos, and the amendments, with our analysis of the judicial interpretation of the Act thus far providing relevant background. We argue that the amendments are premature, unnecessary, create complexity and confusion, and, quite possibly, will have …

The Philippine Claim To Bajo De Masinloc In The Context Of The South China Sea Dispute, Lowell Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Philippine claim to Bajo de Masinloc, otherwise referred to as Scarborough Shoal, finds solid basis in international law. The territorial claim of the Philippines over Bajo de Masinloc is strong relative to the claim of China as well as with respect to the principles on the acquisition of territory in international law, in particular, on the basis of effective occupation. The sovereign rights and jurisdiction asserted by the Philippines over the maritime entitlements of the features in Bajo de Masinloc are founded on principles of international law and consistent with the United Nations Convention on the Law of the …

What's At Stake In The South China Sea? Geographical And Geopolitical Considerations, Clive Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

The South China Sea ranks among the most geographically and geopolitically complex ocean spaces in the world. It certainly appears to have been one of its most vigorously contested, featuring multiple, longstanding and competing territorial and maritime jurisdictional claims. The objective of this chapter is to provide the geographical and geopolitical background to the frequently conflicting national maritime claims made by the South China Sea littoral States. This exercise is designed to provide the necessary contextual backdrop to considerations of the application of maritime joint development mechanisms and/or other provisional arrangements of a practical nature in the South China Sea. …

Factors Conducive To Joint Development In Asia -Lessons Learned For The South China Sea, Robert Beckman, Clive Schofield, Ian Townsend-Gault, Tara Davenport, Leonardo Bernard

Faculty of Law, Humanities and the Arts - Papers (Archive)

Joint development in the South China Sea has been suggested as a solution to the Spratly Islands disputes since the 1980s. China was one of the earliest proponents of ‘setting aside the dispute and pursuing joint development’. The South China Sea Workshops on Managing Potential Conflicts in the South China Sea discussed joint development but ran into a number of obstacles, notably because of longstanding sensitivities over sovereignty issues and conflicting maritime claims. Consequently, the Workshops sought to focus on less contentious issues such as cooperation on marine biodiversity and the safety of navigation. Through this non- confrontational, non-binding and …

Moving Forward On Joint Development In The South China Sea, Robert Beckman, Clive Schofield, Ian Townsend-Gault, Tara Davenport, Leonardo Bernard

Faculty of Law, Humanities and the Arts - Papers (Archive)

The examination of the factors that facilitated the conclusion of joint development arrangements in Asia in Chapter 11 has demonstrated that there remain considerable obstacles before joint development in the South China Sea can be discussed in a serious and meaningful manner. The following recommendations set out steps which the claimants and, in certain circumstances, other relevant stakeholders, can take to move towards a situation where joint development is a feasible dispute settlement option.

Increasingly Contested Waters? Conflicting Maritime Claims In The South China Sea, Clive Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

The South China Sea is host to a complex coastal geography, numerous sovereignty disputes over islands featuring multiple claimants, excessive and controversial claims to baselines, confl icting and overlapping claims to maritime jurisdiction and, most recently, contested submissions regarding extended continental shelf rights. The objective of this paper is to review and analyse these issues from spatial, legal and geopolitical perspectives. An overview and assessment of the geographical and geopolitical factors that inform and underlie the South China Sea disputes is offered prior to the claims of the littoral states to baselines and maritime zones being assessed. Maritime boundary agreements …

Strategic Environmental Assessment: Lessons For New South Wales, Australia, From Scottish Practice, Andrew H. Kelly, Tony Jackson, Peter Williams

Faculty of Law - Papers (Archive)

Disparate approaches to strategic environmental assessment (SEA) in New South Wales (NSW), Australia and Scotland are compared. The first is fragmented and unfamiliar while the other is well established. A detailed analysis of the use of SEA in each jurisdiction follows a contextual evaluation of its purpose. Whereas the Scottish system is supported by recent regulation and policy, both NSW and the overriding Commonwealth Government follow haphazard actions with few if any settled methodologies. In order to improve its environmental assessment credentials and promote more sustainable development outcomes, NSW might consider the need for SEA more seriously. Investigation of other …

Island Disputes And The "Oil Factor" In The South China Sea Disputes, Clive H. Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

The South China Sea has long been regarded as one of the key potential flashpoints for conflict in the Asia-Pacific, alongside North Korea and Taiwan. Recently tensions have been on the rise and relations between China and the other South China Sea littoral states have become more fraught – characterised not only by diplomatic claim and counter-claim (though frequently framed in less than diplomatic language) but also, more worryingly, by confrontations at sea.

Context, as they say, is everything. This article briefly outlines geopolitical drivers that sustain these complex and seemingly intractable disputes, and seeks to shed light on their …

Perspectives On The Organisation And Control Of The Illicit Traffic In Antiquities In South East Asia, Christine Adler, Duncan Chappell, Kenneth Polk

Faculty of Law - Papers (Archive)

We intend addressing three issues in till paper. First we will describe in detail not available elsewhere the patterns that are found in the illicit traffic in antiquities that flow out of Southeast Asia in particular from Cambodia, China, Laos, Myanmar Thailand and Vietnam. Second, we shall examine the focus of organized crime that have emerged in order to support that traffic. Third, we will propose initiatives that are both focused on the demand end of the market chain (rather than on the supply end), and on tho e approaches than give emphasis to persuasion' rather than punishment and prohibition.

Joining Forces To Combat Crime In The Maritime Domain: Cooperative Maritime Surveillance And Enforcement In The South Pacific Region, Robin M. Warner

Faculty of Law - Papers (Archive)

The South Pacific as a region has far more ocean space than land territory. The majority of small island States in the South Pacific are heavily dependent on the sea for their resources and livelihoods. While militaries in our region have recently been focussed on resolving the civil disorder generated by political unrest on land, in locations such as Bougainville, Solomon Islands and Fiji, navies have also had prevalent maritime law enforcement roles in the region, both advisory and operational, for several decades. Threats to the security of the region from crime in the maritime domain will continue to arise …

Thinking Outside The Box: The South China Sea Issue And The United Nations Convention On The Law Of The Sea (Options, Limitations And Prospects), Lowell Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

The South China Sea issue is a geopolitical tinder box waiting to explode.2 It is clear that the primary reason for the claims is based on its strategic location and its hydrocarbon potential,3 However, this is more than a simple conflict over resources.4 The issue goes beyond the question of territorial sovereignty and natural resource jurisdiction.s This 1S more than a legalquestion of ownership.

South Pacific Security And The Emerging Doctrine Of 'Co-Operative Intervention': The Pacific Way Or Howard's Way, Gregor H. Allan

Faculty of Law - Papers (Archive)

The end of the Cold war catalysed considerable recalibration in the world's security architecture. In Australia, whilst this entailed a closer embrace of Asia, the South Pacific did not initially engage Australian security interests. However, post 11 September 2001 and post the terrorist attacks in Bali of October 2002, much has changed. The notion of 'comprehensive security'—in which Pacific security is seen as a function of a wide variety of social, political and strategic phenomena—has assumed such prominence it has ushered in an expanded justification for one state to intervene in the affairs of another. Although, as in the case …

Legal Framework And Enforcement Experience Of Marine Protected Areas In Tasmania, New South Wales And Commonwealth Waters, Warwick Gullett

Faculty of Law - Papers (Archive)

With the exception of the Great Barrier Reef Marine Park, there have been no prosecutions for specific offences within marine protected areas (MPAs) in Australia at the federal level or in Tasmania and New South Wales. However, it cannot be assumed that compliance is responsible for this lack of prosecutions. Rather, in some cases, enforcement officers prosecute offences under more general provisions found in fisheries legislation than under provisions for specific offences created in MPAs. In other cases, there has been a long lag time between the declaration of MPAs and the adoption of comprehensive and effective legislative arrangements creating …