Wednesday, November 30, 2005

Full circle

Cycling home from my third Christmas dinner in college (I have been here a frighteningly long time now) a strange thought struck me.

When I first found out I would be coming to Cambridge for my Masters, a friend in the Federal Court loaned me her copy of Phillip Allott's "Eunomia" to read. It's a dense and difficult book, but quite inspiring in its depiction of what international law could be, not what it is. (His "Health of Nations", while still tricky, is a much easier read).

I still recall the sense of wonder it evoked, the dizzyingly alternative perspective on a subject I thought I knew, as I read in snatches on a late-winter tram in Melbourne traveling to and from the Court.

Despite never seeing myself as a legal theorist, I took Professor Allott's History and Theory of International Law course; an experience that more than anything else inspired me to stay on for the PhD.

And now, two years later, tomorrow night I am taking the colleague who leant me the book (who has also landed in Cambridge) to a discussion group and supper hosted by Professor Allott.

Funny how things sometimes come full circle.

Saturday, November 26, 2005

Bad character deportation

The Robert Jovicic case seems to have touched a nerve, and exposed something I have considered scandalous for some time: the number of people who should be Australian citizens, but aren’t by mere oversight, and who are expelled every year from the only country they’ve ever known.

For those who don’t know, Jovicic is one of many dozens of individuals every year – people who have spent all their lives here and are Australians in all but the paperwork – who the government expels for being “of bad character”. They are then “returned” to the country of their birth, where they may not speak the language or even have access to employment rights or welfare.

In my time working at the Federal Court, this type of case always struck me as unusually heartless, driven by the utterly inflexible use of section 501 of the Migration Act.

Section 501 allows the Immigration Minister to cancel your visa if you fail a “character test.” You automatically fail the test if imprisoned for 12 months on one occasion, or a total of two years over more than one occasion.

Now, if someone arrives in Australia as an adult, on a working visa and commits a serious crime – they should be deported.

What angers me is the way, as in the Jovicic case, this provision is used to deport people who are only not naturalised citizens by their parents’ error.

Every year people migrate to Australia with infants and just forget to naturalise them. If they get into trouble later in life, this leaves them vulnerable to deportation to a country where they may have no contacts, no language skills and where – as in the Jovicic case – the national government may either not recognise your citizenship or have revoked it on the grounds you have been out of the country all your life.

These people are being subjected to an extraordinary double punishment, which is also utterly arbitrary. The victims of this system have served their time, but are punished again by deportation – a punishment that wouldn’t apply to them had they been naturalised. It is also a punishment that is utterly disproportionate to the nature of their crimes, these are usually small-time drug offenders who supported their habit through burglary or cheque-bouncing: not armed robbers and rapists.

These people are scarcely major-league threats to the community.

It seems a bit much to expel someone from the only country they’ve ever known because they’ve done two years for burglary – especially when you’re chucking them out of a country founded upon the transportation of a home-grown criminal class.

Thursday, November 24, 2005

Moments not to forget your camera ...

So, I was cycling to the train station today. As anyone who has ever visited Cambridge would know, it's famous for its rising bollards.

Yes, yes, centuries of tradition, punting on the Cam, Harry Potter gowns, what really freaks people out are the rising bollards.

The edges of the down-town pedestrian area, and certain taxi-and-busses only points in the one-way system, are guarded by these stout metal poles about 3 feet high that rise out of the ground. There has been much debate about how they work, but a cabbie informed me vehicles that are allowed to pass are fitted with transponders.

anyway, the bollards at the edge of the pedestrian area rise at 10 am and lower at 4 pm, Monday through Saturday.

Today, as I passed the set near august St John's college, there was what looked like a roadwork crew milling about and a car parked in front of the bollards.

All I thought was: "Do they expect me to get off and walk, or can I just duck round the side here and carry on?"

As I did just that, I glanced back.

A gorgeous, new model silver VW Beetle was precariously astraddle two semi-risen bollards: one under each tire. The left one had come about two-thirds of the way up, the right only about a foot. The Vee-Dub's bumper sloped forlornly left-to-right.

Someone must've tried to slip past at 10. Or not know of their existence. Or had their clock set wrong.

And I didn't have my camera, dammit.

Sunday, November 20, 2005

Japanese Whaling in ‘Australia’s’ Antarctic Waters

You might think that if illegal whaling was occurring in Australian waters, there might be a Court in Australia where you could challenge that activity. However, if those waters are off Antarctica, you’d be wrong.

In two judgments in the one case Justice Allsop has refused leave for the Humane Society to start proceedings in the Australian Federal Court regarding the whaling activities of a Japanese company in the 200 nautical mile Exclusive Economic Zone (“EEZ”) that Australia has declared off the coast of its Antarctic territory (see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664 and [2004] FCA 1510).

The most recent judgment was in May, so you’ll have to excuse my being a little behind the times.

So, in brief at international law a State can proclaim a 200 nm EEZ off its coast, and in that area pass laws relating to natural resources – including fisheries – and enforce them even against foreign ships. Australia claims part of the territory of Antarctica and has proclaimed an EEZ adjacent to its coastline. So any whaling there is subject to Australian law and you could bring a case under Australian environmental legislation, right?

Well, as it turns out, no.

The basic reason for this is the 1959 Antarctic Treaty, which has about 46 parties or so, including Australia. The genius of the 1959 Treaty is that it ‘freezes’ all territorial claims in Antarctica, including those which overlap (those of Argentina, Chile and the UK) and provides that nothing done there will count as a claim of sovereignty and no State will make new or enlarged territorial claims. The trade-off is that all States are then free to send scientific missions wherever they please, and all people present in Antarctica are governed by the law of the State that sent them.

Now, here’s the tricky bit. Under Article 6, the 1959 treaty applies “to the area south of 60° South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.” The 1982 Convention on the law of the sea enshrined the idea of the 200 nm EEZ. Prior to which, it was usually assumed all States were free to sail, fish (or whale) upon the high seas without being subject to another State’s law.

So, does Article 6 mean Australia is allowed to assert a high seas right that came along later than 1959 (the 1982 EEZ), or that Japan’s vessels enjoy the freedom of the high seas?

(Alright, I’m setting aside questions here of the Whaling Convention and later environmental treaties on Antarctica.)

Only four countries in the world that acknowledged the Australian claim of territorial sovereignty in Antarctica (Norway, New Zealand, France and the United Kingdom), and it is not clear that this extends to the Australian Antarctic EEZ. Of 46 parties to the 1959 treaty, the inconclusive support of only four makes it quite likely that any State who had a flag vessel arrested in that area would challenge the lawfulness of Australia’s EEZ jurisdiction and might well win.

The Japanese view would obviously be that Australia has no right to apply its environmental legislation to this area.

Basically, the argument put by the Australian government was that this was a matter of international relations and enforcement of these laws would prove embarrassing and possibly damaging to the national interest (ie a definitive ruling against the EEZ by an international tribunal now could prevent it later being more widely accepted later).

The Court was very careful to say that these submissions from the government did not purport to direct the Court as to the outcome or interfere with its independence. However, its established as matter of case law that the Courts will seldom go against government submissions on international relations issues.

Also, rather importantly, the Court found that allowing the case to proceed would be “futile”. The case concerned leave to serve process on a Japanese company in Japan. It had no assets in Australia and there was no way to compel it to appear in Court in Australia. Thus, there is every chance the case would be ineffective, as well as diplomatically embarassing (and, in my view, very likely contrary to international law).

Leave was granted to appeal on the same day as judgment, though I doubt the outcome will be any different on review.

Friday, November 18, 2005

St Paul's Cathedral, London.

Thursday, November 17, 2005

Everybody’s talkin’: the Israeli-Palestinian negotiations

So, I’ve been to a couple of great talks this week. Yesterday, one on UN reconstruction efforts in Liberia, today an account of Israeli-Palestinian negotiations.

The speakers were to be two friends, a former negotiator from each side, both old friends now, but in the end only the former Israeli military lawyer could make it. He was still remarkably balanced.

It seemed that at least one of the reasons he was kept at the negotiating coalface 12 years was that – perhaps surprisingly – all stakeholders tended to see him as relatively neutral and objective in negotiations, precisely because he was from the military and not a political appointee. He struck me both as a true believer in the peace process, and a hard-headed pragmatist.

Just some of the little details he mentioned about the early days were telling. Not knowing how to speak to address the other side at first (the answer being, in the end, as people), decisions about what to wear (should serving officers attend in uniform?) and the problems of negotiating with Palestinian delegations who had sometimes not met each other, or even their head of mission, before the meetings let alone having had time or the resources to prepare.

Some of his views were surprising. He supported negotiating with groups his government regarded as terrorists, and having them involved in political processes. The idea being that once extremists become politicians, at least some of them will begin to be caught up in political reality and start to make compromises like everyone else.

He also predicted no major work could be done on present negotiations until the middle of next year when both Israel and the Palestinian Authority come through their present electoral cycles. No-one, on either side, it seems is ever willing to negotiate with a potential lame duck – there’s no guarantee your concessions to them will buy anything from their successor.

He spoke of goodwill and good people on both sides, and the saying “It’s hard to hate in person.”

He also acknowledged, but shrugged off, the one-State thesis: the idea that the solution is not two separate states, but one integrated one (the South African model) – especially given the presence of settlements in the occupied territory.

His view seemed to be that with political will, such as the unilateral withdrawal from Gaza, settlements didn’t matter much. Obviously they matter a great deal to those on the ground, but he regarded the issue of territorial boundaries as being – while still very complex – relatively simple compared to the intractable wrangle that will be the final agreement on the status of Jerusalem.

He acknowledged that sometimes complex legal deals are a good thing, as they allow the result to be spun for domestic consumption as a win by all parties, such as the Israel-Jordan water deal which is capable of being presented as all things to all parties. However, he seemed of the view that anything but a simple solution would fail in Jerusalem because of the complexity of the interests involved.

A very interesting evening, given my recent efforts to explain the status at international law of the Palestinian people to undergraduates.

Monday, November 14, 2005

A little older, as the weather’s turnin’ colder

So, today I turned 30. Hopefully an auspicious moment to return from blog hiatus. I’ve been treated to a couple of gloriously sunny, if incrementally colder, winter’s days. Quite reminiscent of winter in Canberra: strong sun, a still and cold day outside, high blue sky streaked with cloud. Until recently, there was even a bit of an Indian summer: great weather for photos, some of which I hope to get up soon.

In a significant move, today was the first day I wore gloves cycling. The wind froze my hands bad enough last night that when I got off my bike coming back from the pub (and, well, London) I hardly had any feeling left in my little fingers.

“But you’re 30!” I hear you exclaim, “Doesn’t that scare you at all?”

Actually, no. I’ve eased into it. My first birthday celebrations were over a week early on 5 November. It just so happened on that date I could persuade a friend who’s a college fellow (read, academic) to book a nice wood-panelled college room for a party. Together we sorted out a selection of four different wines and I instructed all guests to bring cheese. A lot of very civilised, if slightly tipsy, wine tasting and cheese eating followed.

Saturday, I was at a London friend’s 30th near Tower Bridge which kind of took the spotlight off me for a bit and gave me some company in the aging process. Actually, other than catching up with friends, a real highlight of the night was seeing the Tower Bridge lit up on a cold night. Quite magnificent.

And so I stumbled back into Cambridge on Sunday in time for a night at the pub with a friend whose birthday is tomorrow. Earlier this evening I even crept away to a wine tasting where I got to taste a half glass of a 1990 French Cabernet that now apparently sells for £120 a bottle. Rather worryingly, it tasted not that much different to most red wine as far as I’m concerned.

So yes, relaxed, comfy and a little older. Possibly a little wiser and feeling more settled in my life path (academia, ho!), but certainly no taller this birthday (see photo).