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Seminars for 2006

Convened Seminars

The Progressive Constitutionalisation of the European Union Through Human Rights and Union Citizenship

Topic Outline

The debate about European Constitutionalism that existed in earlier periods of the history of European integration has been revived against the backdrop of the recent failed attempt of a Treaty amendment which became known as Draft Constitution. The paper takes the opposite, namely a bottom-up, approach by looking at some of the developments in European Communities (EC) law that move beyond economic regulation and integration. Although the European Union still has no binding written human rights catalogue, human rights have recently gained momentum by the drafting of a European Charter of Fundamental Rights, a more assertive application of human rights and the concept of Union citizenship by the European Court of Justice. This paper looks at the changes in the European Union’s constitutional order over the years and argues that irrespective of a formal intensification of integration, the very fact of including non-economic values into the constitutional law of the EU leads to the insertion of new hierarchies and to a constitutionalisation – with implications from the perspective of the Union’s competences – ‘through the back door’. Although still an ongoing process, the impact of human rights in the EU may be viewed as a possible example for and compared to other systems in transition to codified human rights.

About the speaker

Dr Katja S Ziegler is Lecturer in Law, DAAD Fellow and Deputy Director of the Institute of European and Comparative Law, University of Oxford. Her main research interests lie in the fields of European, public international, human rights and (comparative) constitutional law. Prior to her lectureship in Oxford, she worked as a Rechtsanwältin (barrister-solicitor) in EC Competition Law and regulatory affairs in Brussels and as a lecturer in law at the University of Bielefeld, Germany. She wrote her doctoral thesis in public international law on the topic of state responsibility of the state of origin for causing refugee movements, published under the title Fluchtverursachung als völkerrechtliches Delikt. Die völkerrechtliche Verantwortlichkeit des Herkunftsstaates für die Verursachung von Fluchtbewegungen (Berlin, Duncker & Humblot 2002). Her complete list of publications can be found at
http://denning.law.ox.ac.uk/members/profile.phtml?lecturer_code=zieglerk

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Opting In and Opting Out of International Commercial law Instruments: Cross-border Enforcement of Judgement, Arbitration, and Contracts

Topic Outline

The 1958 New York Convention requires local courts to allow arbitrators to commence proceedings, and to enforce foreign awards, provided parties have opted in by agreeing to arbitration. The 2005 Hague Convention seeks the same if partes opt in to the (exclusive) jurisdiction of an agreed court.
A proposed Trans-Tasman regime goes further: it would allow enforcement eg of a NZ court judgment in Australia even if an Australian party lacks assets, presence or agreement to jurisdiction in NZ. The only alternative for the Australian party would seem to be to opt out of this regime by selecting arbitration, or a court in Australia or a third country as the exclusive forum. The regime aims to reinforce confidence in the other country's courts, but it might worsen if parties begin to opt out. Likewise, the UN Sales Convention may be losing favour in both countries (but not world-wide) due to its Article 6 allowing opt-outs. Behavioural law and economics suggests why this might occur.

About the speaker

Dr Luke Nottage is a Senior Lecturer in the Faculty of Law at the University of Sydney and is an Associate of the Sydney Centre for International and Global Law. See personal profile at: http://www.law.usyd.edu.au/about/staff/LukeNottage/index.shtml

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Multilateral Development Banks, Accountability and Third Party Expectations in Today’s World

Topic Outline

Accountability mechanisms in the world of international development banks are recent phenomena which enable private citizens and other groups to bring claims at the international level against these institutions for projects supported by them. This demand for institutional accountability is primarily an internal governance tool assisting developmental effectiveness of projects undertaken by theses institutions. The accountability procedures have also become part of a general question of responsibility such organisations have under international law. The seminar will also explore any structural limitations restricting private third parties and their access to international redress, ongoing developments in the suitability of the mechanisms by which the organisations are made accountable and the need for innovative methods for the settlement of claims.

About the speaker

Mr. Suresh Nanwani is the Associate Secretary of the Compliance Review Panel at the Asian Development Bank and is a Parsons visiting fellow at the Law School, University of Sydney in September 2006. After graduating with a Masters in Law from the University of London in 1982, he practised as a lawyer in the private sector in Singapore. He joined the Asian Development Bank in 1988 and worked in the legal department as a development lawyer for 15 years before assuming his current position in the Compliance Review Panel. In 2000, he was seconded for a year to assist the legal department at the European Bank for Reconstruction and Development in London. Over the past 5 years, he has been working on accountability issues including the recently-established ADB Accountability Mechanism. He co-authored with Dr. Eisuke Suzuki an article on "Responsibility of nternational Organizations: The Accountability Mechanisms of Multilateral Development Banks" in the Michigan Journal of International Law in Fall 2005 issue (Volume 27, No. 1).

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The Trial and Tribulation of David Hicks: A Citizen Without Rights

Topic Outline

David Hicks indefinite detention at Guantanamo Bay is set to continue for some more months until the US Supreme Court rules on the constitutionality of the military commission process in a another case. In the interim, his ordeal continues. His predicament has been exacerbated by a compliant Federal Government that has refused to question the legitimacy of his indefinite detention or the military commission process. The highly flawed military commission process has been extensively critiqued by many human rights advocates, legal commentators and jurists as well as other governments for its breaches of international human rights norms. The seminar will examine these breaches in detail and question the efficacy of such blatant undermining of the rule of law and the human rights norms. Furthermore, the lack of any documented meaningful assistance to David Hicks stands in stark contrast to the successful diplomatic efforts of other Governments such as the UK culminating in the release of a number of their citizens from long term custody. The seminar will juxtapose these differing approaches and their underlying policy imperatives.

About the speaker

Irene Baghoomians is a lecturer in the Faculty of Law at University of Sydney. Her experience in legal practice was focussed on civil rights and human rights litigation. See personal profile at: http://www.law.usyd.edu.au/about/staff/IreneBaghoomians/index.shtml

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Implementing constitutions in a post-conflict society: the case of Bosnia and Herzegovina

Topic Outline

After the cessation of hostilities and the Dayton Agreement in 2005 the responsibility for establishing and maintaining the peace and re-developing the war torn states was shared between domestic and international bodies. The session will look at the movement from peace-keeping to a constitutional ruling body and the problems inherent therein.       

About the speaker

Professor David Feldman is the Rouse Ball Professor of English Law, Cambridge University. Since 2006 he has also been Chairman of the Faculty of Law at Cambridge. He is a Fellow of Downing College Cambridge and in 2002 was appointed by the President of the European Court of Human Rights to be one of three international judges of the Constitutional Court of Bosnia and Herzegovina. He is a Fellow of the British Academy, an Honorary Bencher of Lincoln’s Inn and a Fellow of the Royal Society of the Arts. Professor Feldman had numerous appointments and among these is his 2000 appointment to be the first Legal Advisor to the new Parliamentary Joint Select Committee on Human Rights in the UK Parliament.

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The Relationship between Chapter VII and the UN Charter and use of force by Regional arrangements and agencies.

Topic Outline

Professor Hickey’s work considers the idea that the meaning of the Charter has changed since 1945; that the relationship between ‘regional arrangements and agencies’ and the UN Security Council over enforcement actions to maintain or restore international peace and security under the UN Charter has altered.

The words of Article 53 forbidding regional organization enforcement actions without ‘authorisation’ of the Security Council has altered somewhat to be interpreted today as meaning that regional organisations may presumptively take otherwise appropriate enforcement actions unless the Security Council denies authorisation.

A recent article of Professor Hickey, relating to the topic of his presentation and cited in the recent Centennial Issue of the AJIL is:
James E. Hickey,jr., “Challenges to Security Council Power Over the Use of Force in Enforcement Actions: The Case of Regional Organisations” 10 IUS GENTIUM 75 (2004).

About the speaker

Professor James E. Hickey Jr. is Professor of Law and Director of International and Comparative Law Programmes at Hofstra University School of Law. He teaches International Law and International Energy Law at Hofstra University Law School. Professor Hickey has also taught at Cambridge and Humboldt Universities. He has also practised with two Washington DC law firms in the fields of International Law, Antitrust Law and Energy Law.

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The United States’use Death Penalty on the World’s Stage

Topic Outline

Developments outside the U.S. criminal justice system are having a profound effect on a controversial aspect of that system, the death penalty. Decisions of the Int. Court of Justice, the European Court of Human Rights, and the highest courts of foreign nations are challenging assumptions and well-established domestic procedures. Opinion beyond U.S. borders is also weighing in, particularly as courts grapple with the meaning of the U.S. Constitution 8th amendment on the prohibition on cruel and unusual punishment. The talk explores how in recent years the world has helped shape and limit the application of the U.S. death penalty.

About the speaker

Susan L. Karamanian is the Assoc. Dean for International and Comparative Legal Studies at George Washington University Law School. Before joining the Law School in 2000 she practised law in Dallas Texas for 14 years with a major law firm. While in private practice she maintained an active pro bono docket which included representing inmates on death row in Texas. Her final case on behalf of Paul Richard Colella resulted in his release from death row. Susan is a graduate of the University of Texas Law School, Oxford University(Rhodes Scholar) and Auburn University.

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Australians and the Death Penalty: National and International Dimensons

A seminar presented by the Institute of Criminlogy and the Sydney Centre for International and Global Law.

Session 1: Off-shore Policing and Death Penalty Punishments

In recent years Australian policing agencies have expanded their investigations and protective functions into the Asia/Pacific region. As a consequence of what has become known as the 'Bali 9' case the exercise of discretion by Australian police in their investigations has contributed to the prosecutions and convictions of Australian citizens in jurisdictions where capital punishment is a possible and even likely outcome.

This throws up not just considerations of the purpose and propriety of Australian policing off-shore, but the challenges posed for a law enforcement process which otherwise administers justice where the death penalty has no place.

In this context the session will explore this transition in Australian policing practice and priorities. The extent to which Australian governments and justice agencies should do more than avoid exposing our citizens to capital punishment outcomes will also be considered.


Session 2: International Perspectives on the Death Penalty

As Australia does not currently permit any form of capital punishment, the death penalty is purely an international phenomena for Australians. But as recent events have demonstrated it is not a distant phenomena and as Australians travel more frequently overseas and are caught up in transnational crimes, the application of the death penalty against Australians will become more frequent.

In this session, the panel will review the legal and policy options to contest the legitimacy of the death penalty in international and national courts and the campaign to encourage the Australian government to take a stronger stand against the death penalty both with the regional and internationally.

For more information, see the Institute of Criminology's website.

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Crossing Over: Reflections on the Van Nguyen Case

Topic Outline

The legal issues involved in the imposition by Singapore of the death penalty on the Australian Van Nguyen are many and long ranging. Professor Rothwell will speak about his own role in advising in the case and the movement from academia to practice in this instance.

About the speaker

Professor Rothwell is the Challis Professor of International Law at the University of Sydney Law School. He was part of the legal team acting on behalf of Van Nguyen attempting to challenge the imposition of the death penalty by the government of Singapore.

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Fighting the Odious Scourge: International Developments in the Prosecution of Genocide

Topic Outline

The lecture will highlight the recent case law of the international criminal tribunals relating to issues of the crime of genocide such as the definition of the protected groups, the protected interests and the special interest required. Also included will be the admissibility and limitations on prosecution of genocide by 3rd states.

About the speaker

Gerhard Werle is a professor at the Humboldt-Universität zu Berlin, where he holds a chair in German and international criminal law, criminal procedure and contemporary legal history. He has published extensively in German, English, Spanish, Italian and Japanese on international criminal law, transitional justice and human rights. His recent books are: Principles of International Criminal Law (2005), Tratado del Derecho Penal Internacional (2005) and Voelkerstrafrecht (2003). Gerhard Werle’s teaching experience includes visiting professorships in South Africa and Japan.

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The Proposed Maritime Labour Convention

Topic Outline

Professor McConnell has been a participant in negotiations conducted collaboratively by the International Maritime Organization (IMO) and the International Labour Organization (ILO) aimed at producing a Maritime Labour Convention consolidating existing labour standards and updating international law in this area. She will speak about the process and the proposed new treaty.

About the speaker

Professor Moira McConnell is Director of the Marine and Environmental Law Institute Dalhousie Law School Nova Scotia Canada

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Pitfalls in Relying on Common Law Rules of Evidence to Determine Refugee Cases: The Canadian Experience

Topic Outline

Professor Houle examines the way in which the Refugee Protection Division of the Canadian Immigration and Refugee Board uses common law rules of evidence. In particular she examines the approach to oral testimony and to documentary (hearsay) evidence.

About the speaker

Biography: France Houle is an Associate Professor at the Faculty of Law of the University of Montreal (Province of Quebec, Canada). She is teaching in the area of administrative law and legal methodology. Her research interests are in refugee law (procedure and evidence), guidelines, rule-making and regulatory reforms. She is currently working on the use of the Regulatory Impact Analysis Statement by Canadian judges to interpret the meaning and purpose of a regulation and the use of guidelines to remodel legislative
schemes. She is affiliated with the CRIMT - The Centre of Research on Globalisation and Work - in which she participates in several research projects, including precarious forms of labour. She is developing a research project joining this theme with that of immigration. Finally, she is also working on developing a network of scholars on regulatory reforms, notably in the fields of immigration law and aboriginal law.

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