International Advocate Volume 3 Issue 1

INTERNATIONAL ADVOCATE March 2014 Volume 3 Issue 1

Double Feature:

Operation Sovereign Borders: Charting the Legal Issues

by Donald Rothwell

From Conscience and International Trade Law to Global Artificial Photosynthesis in the Sustainocene

by Thomas Faunce

The International Advocate is published by the ANU International Law Society with the proud support of the International Law Students’ Association.

Publications Director: Tristian Delroy Editing Team: Isabel Roper, Elizabeth James.

The opinions expressed in the articles are those of the contributors and do not necessarily reflect those of the ANU International Law Society, its partners or the Australian National University.

ANU International Law Society Student Facilities Building 17a Australian National University Canberra ACT 0200 Australia President: Jacqueline Wilmott Vice President: Megan Lingafelter Finance Director: Varun Sundar Careers Director: Georgia Lourandos Events Director: Sami Hook Publications Director: Tristian Delroy

President’s Address Welcome to the International Law Society. We are a relatively new society, but 2014 is going to be exciting. This year we are hoping to turn our focus to revealing new and exciting opportunities that facilitate the pursuit of international law.

With Australia’s whaling case against Japan progressing in the International Court of Justice, a decision could well be imminent later this year. ILS Patron Hilary Charlesworth is Australia’s ad-hoc judicial appointment to that case, and we are looking forwarding to hearing from her in Semester Two. To the north, regional politics will continue Submissions from in Asia academics, legal to involve jurisdictional claims and counterclaims, including in the South China Sea. There is no doubt that ANU continues to practitioners, and students are always build on its outstanding expertise in international law. We’re looking forward to welcome. submit essays, keepingPlease up with all this actionphotos and more, and hope you can join with us! and ideas to anu.international.advocate@gmail.com

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Jacqueline Wilmott

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Operation Sovereign Borders: Charting the Legal Issues Donald Rothwell

From Conscience and International Trade Law to Global Artificial Photosynthesis in the Sustainocene Thomas Faunce

Legalise Torture?

Alexandra Shearer

Law and Religion: Reflections on a CIPL Internship Rui Rong Lam

Patron’s Address The ANU International Law Society has quickly become an active ginger group, promoting interest in international law among ANU students. I am proud to be patron of this group and am always inspired by the enthusiasm and energy that its members bring to the organisation.

In 2014, Australia is more engaged than ever before in the world of international law. One example of this is the fact that Australia is a party to two cases currently before the International Court of Justice — the Whaling in the Antarctic case (Australia v Japan) and Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). In different ways, these cases demonstrate the relevance of international law within Australia and to Australia’s international relations. An appreciation of international law has changed from my student days, when it was considered an optional extra, to being an important area of knowledge for all lawyers.

I hope that you enjoy this first issue of the International Advocate for 2014 and I look forward to meeting you at ILS activities this year.

Hilary Charlesworth Director, Centre for International Governance and Justice, Professor & ARC Laureate Fellow ANU College of Asia and the Pacific and ANU College of Law

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Editor’s Welcome

By Tristian Delroy

The motto of the ANU ILS is ‘bringing international law into your world.’

International Advocate seeks to achieve this by making accessible the writings of leading academics and practitioners, allowing students to engage in this conversation as writers and editors, and publicising upcoming seminars and internship opportunities.

It is a magazine about issues in International Law. Yet these issues necessarily intersect with other areas of study, as is evident in this issue, which spans from politics to science to religion. Professor Donald Rothwell explores the legal issues arising from the Abbott government’s policies for dealing with asylum seekers. Professor Thomas Faunce discusses the International Law surrounding developments in artificial photosynthesis. Alexandra Shearer considers whether torture should be legalised. Finally, Rui Lam reflects on her CIPL internship, and the tension between the freedoms of religion and expression.

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Special thanks to editors Isabel Roper and Elizabeth James for their hard work in preparing this issue, academic and student contributors, the ILS Executive, and Nishadee Perera, 2013 Publications Director, for laying such strong foundations for the Advocate.

Operation Sovereign Borders: Charting the Legal Issues

By Donald Rothwell Professor of International Law, ANU College of Law, ANU

Introduction As the tempo of Operation Sovereign Borders (OSB) increases the law of the sea dimensions of the Abbott government’s policies for dealing with asylum seekers attempting to reach Australia by boat continue to mount. The policies promoted by the Coalition whilst in Opposition always had the potential to raise multiple law of the sea issues. The implementation of those policies from government has further served to highlight the law of the sea dimensions of OSB and their impact upon Australia’s relations with Indonesia. Recent reports, albeit officially unconfirmed, that Australia

is now deploying lifeboats as a means of returning asylum seekers to Indonesia raise the international law dimensions of OSB to an even higher level.

In this article I shall consider Australia’s entitlements under the international law of the sea to interdict vessels bringing asylum seekers to Australia, the capacity of Australia to exercise control over those vessels once an interdiction (ie. the actual interception of a vessel at sea) has taken place, issues associated with the entry of Australian government vessels into Indonesia’s territorial sea and exclusive economic zone (EEZ),

Photo Credit: Alice Verheij INTERNATIONAL ADVOCATE | 5

and issues arising from the use of lifeboats to return asylum seekers to Indonesia. I shall not be considering the application of the Refugee Convention. In preparing this article I have been not had the benefit of being aware of how significant onwater operational aspects of OSB are being conducted. As a result, some of my remarks and conclusions are qualified.

The LOSC creates the legal framework for the three major maritime zones that have proven significant for OSB:

The International Law of the Sea

The outer limits for each of these zones are uncontested under the international law of the sea.

Only in the case of the exclusive economic zone does the Australian and Indonesian claim overlap and temporary boundary arrangements are in place dealing with the relevant area between Christmas Island, Ashmore Reef and the Indonesian Archipelago.

The overarching legal framework for the law of the sea is governed by the 1982 United Nations Convention on the Law of the Sea (LOSC) to which both Australia and Indonesia are parties. For Australia, the convention is the basis from which Australia’s vast maritime zones encompassing the exclusive economic zone and continental shelf have been proclaimed. In sum, Australia’s maritime domain encompasses an area of over 13 million km2, which is one of the largest among the world’s nations. In addition to enjoying equivalent entitlements to LOSC maritime zones, the convention is particularly significant to Indonesia as it provides the legal framework upon which archipelagic baselines have been declared. These baselines encompass the outer limits of the Indonesian archipelago from which its maritime zones have been proclaimed.

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• The 12 nautical mile (22km) territorial sea; • The 24 nautical mile (44km) contiguous zone; and • The 200 nautical mile (364km) exclusive economic zone.

Each one of the these maritime zones are proclaimed from baselines around the Australian and Indonesian coast, which in the case of Indonesia include the archipelagic baselines which consistently with the convention connect up islands such as Timor and Rote. It is therefore important to note that Indonesia’s maritime zones are not exclusively delimited from its coastline, but are predominantly proclaimed from its archipelagic baselines which have gone through various phases since Indonesia joined the convention

Photo Credit: Geoscience Australia

in 1986, and most recently were updated with the UN in 2009.

Interdiction and Control of Asylum Seeker Vessels A key dimension of the LOSC is the balancing of the rights and interests of coastal states over their maritime zones, and the rights and interests of the international community to enjoy navigational freedoms.

The balancing of these respective interests is found in various navigational regimes throughout the convention. Within the territorial sea, foreign vessels enjoy a right of innocent passage. As such a foreign vessel is entitled to pass through Australia’s territorial sea, including for the purpose of entering an Australian port, if it conducts itself in a manner that is “not prejudicial to the peace, good order and security of the coastal State.” (Article 19(1), LOSC).

Importantly for OSB, a vessel entering Australia’s territorial sea with the purpose of unloading persons contrary to the Migration Act would not be engaged in innocent passage. Consistent with the LOSC, Australia is entitled to “take the necessary steps in the territorial sea to prevent passage that is not innocent” (Article 25 (1), LOSC). This could extend to ordering the delinquent ship to remove itself from the territorial sea, or physically removing the ship by taking control of it. A similar right exists in the case of the contiguous zone, where Australia can rely upon its capacity to “prevent infringement” of its immigration laws within the territorial sea (Article 33 (1(a)).

What is unclear from the LOSC is the extent of ongoing control that can be exercised over a delinquent ship that has been interdicted in the territorial sea or the contiguous zone. It cannot be in dispute that INTERNATIONAL ADVOCATE | 7

under the law of the sea Australia has a capacity to remove asylum seeker boats from the territorial sea and contiguous zone and direct them to Australia’s EEZ. Absent flag state consent (ie. the state of nationality of the vessel), what is unclear is the extent to which continuing control can be exercised over those vessels within the Australian EEZ or the Indonesian EEZ. The interdiction and seizure of asylum seeker vessels within the Australian EEZ is legally dubious absent flag state consent, the breach of specific Australian laws that apply within the EEZ, or conduct that would be subject to universal jurisdiction such as piracy. The persons on board such a vessel could give their consent to a boarding by the Australian Navy to, for example, provide assistance in the case of a safety of life at sea scenario. However, that consent would be limited to deal with that particular matter. It would not extend to consent being granted to control being exercised over the vessel and the persons on board being returned to the place from where they had come.

It could be argued that as many of the asylum seeker vessels that depart Indonesia en route to Australia are unregistered and do not fly the Indonesian flag, that 8 | INTERNATIONAL ADVOCATE

they are without nationality and fall within the right of visit provisions of the LOSC that apply within the EEZ and high seas (Article 110, LOSC). Even stronger grounds for interdiction can be found in the 2000 People Smuggling Protocol to the Convention against Transnational Organized Crime (Article 8 (7)).

This would certainly enhance Australia’s right to board and search such vessels. Yet while the People Smuggling Protocol permits Australia to take “appropriate measures in accordance with… international law” with respect to these vessels and the persons aboard, the extent of those measures is unclear. While Indonesia is also a party to the Protocol and along with Australia has obligations to “prevent and suppress” people smuggling, there is no evidence to suggest that Indonesia has given its consent to such vessels being returned to Indonesia (Article 7).

Tow-Back Operations Indonesia also has equivalent rights and obligations to Australia within its maritime zones. In that respect it needs to be made clear that the mere presence of an Australian Navy ship within the Indonesian territorial sea is not a violation of international law. Australian Navy ships enjoy a right of innocent passage within the Indonesian territorial sea and

the right of archipelagic sea lanes passage within recognised sea lanes that run through the Indonesian archipelago. These navigational rights are critical to Australian trading interests in Southeast Asia and are also a component of Australia’s maritime security.

However, the entry into Indonesia’s territorial sea by an Australian Navy or Customs vessel that has control over an asylum seeker boat by way of a tow line, with the intention of returning that boat to Indonesia, would not be consistent with the right of innocent passage. In that instance, Indonesia could take the “necessary steps” to prevent such passage, including interdiction by its Navy.

Indonesia could also assert that any tow back operation being conducted by Australia within the Indonesian EEZ is not consistent with the freedom of navigation being exercised within those waters.

In this respect the characterisation of OSB as a “military-led, border security operation” in which Australia asserts sovereignty over its borders, necessarily leads to the conclusion that Australia is asserting an aspect of its sovereignty within the Indonesian EEZ if a tow back or escort operation is conducted. By way of contrast, this is not a towing or escort operation following the completion of a hot pursuit and

law enforcement operation where a vessel detained in the Indonesian EEZ could be towed or escorted back to Australia for arrest. Likewise, this is not a commercial towing operation following a salvage or by a tugboat. Rather what may be taking place under OSB is an Australian government vessel towing a vessel, which may include a lifeboat, into the Indonesia EEZ and at some point that activity is discontinued with the intention that the towed vessel make its way towards the Indonesian territorial sea and eventual landfall. Such an activity cannot be characterised as Australia exercising the freedom of navigation but rather bringing another vessel into the Indonesian EEZ without consent.

Transfer of Asylum Seekers to Lifeboats The recent apparent deployment under OSB of lifeboats into which asylum seekers have been transferred and returned to Indonesia raise additional legal issues. In addition to whether transferring asylum seekers to lifeboats is consistent with Australia’s interdiction rights within its maritime zones, these actions raise more direct questions with respect to Australia’s responsibility under international law for the control that it has exercised over the INTERNATIONAL ADVOCATE | 9

asylum seekers, providing them with a lifeboat by which they are directed to return to Indonesia, and the safety and security of that lifeboat to complete that return journey.

This would extend, for example, to whether Australia has provided them with a seaworthy lifeboat, and whether it is adequately provisioned with fuel, food and water. It also raises questions as to whether the persons placed in control of the lifeboat have the seamanship skills to be able to successfully navigate their way back to the Indonesian coast. Variables would also need to be taken into account such as the prevailing sea conditions and the weather, both at the time of release of the tow line but also in the coming hours and days. If a maritime disaster was to strike one of these lifeboats then Australia’s responsibility under international law could be considerable.

Conclusion As I initially observed, this legal analysis of the law of the sea dimensions of Australia’s conduct of OSB is limited by the material that is in the public domain. Nevertheless, on the basis of official statements it is assumed that Indonesia has not given its consent to those aspects of OSB that may be conducted within the EEZ or territorial sea of Indonesia.

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With that qualification, by way of conclusion the following can be stated: • Australia has a firm legal basis under the law of the sea to interdict asylum seeker vessels within the Australian territorial sea, contiguous zone, or EEZ • Australia has a firm legal basis to be able to exercise control over those vessels to remove them from Australia’s territorial sea and contiguous zone • Australia’s ability to exercise continuing control over asylum seeker vessels interdicted within the Australian EEZ, or taken from Australia’s territorial sea and contiguous zone into the EEZ, is limited • Australia has no legal basis to tow back asylum seeker vessels into the Indonesia territorial sea, and Indonesia would have a legal basis to object to this activity being conducted within its EEZ • Australia’s transfer of asylum seekers to lifeboats for the purposes of being towed back to Indonesia raise issues as to the legality of the transfer and significant issues of state responsibility in the event of an incident at sea involving that lifeboat Article based on remarks at the seminar ‘Operation Sovereign Borders: Charting the Legal Issues,’ hosted by the Centre for Military and Security Law, ANU College of Law, on 13 February, 2014.

From Conscience and International Trade Law to Global Artificial Photosynthesis in the Sustainocene

By Thomas Faunce Professor and ARC Future Fellow, ANU College of Law and ANU College of Medicine, Biology and Environment

Beginning of the Journey: International Law and Physics This article sets out a story of how my interest in international law commenced at the ANU Law Faculty, continued into international trade law, and then into global artificial photosynthesis. It addresses issues about the ultimate sources of law and about the future of governance

of human society and its ecosystem.

As a student at what was then the ANU Law Faculty, my interests focused closely on what at first sight may seem the widely disparate fields of international law, conscience and meditation. With Andrew Byrnes, Vivienne Bath and Chris Erskine, I had been part of the first team from outside North America to win the

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Jessup International Law Mooting competition. I meditated every morning during the competition and afterwards, while in the US, went off on a pilgrimage to Thoreau’s Walden Pond near Concord, Mass.

I won the prize for International Air and Space Law and wrote one essay for that course on the requirement for “high moral character” in the Secretary General of the United Nations and, considering the mystical side of Dag Hammarskjold, whether that could be interpreted to require a level of contemplative attainment similar to that required in the Dalai Lama. My first job after law school was as associate to Mr Justice Lionel Murphy at the High Court of Australia, when one of the main cases concerned whether a dam on the wild Franklin River in Tasmania should be stopped – amongst other things, because it contravened legislation passed in compliance with an international environmental law treaty (the World Heritage Convention). After graduating in medicine and then becoming an academic at ANU, my interests moved to preventing the inclusion in the AUSFTA of the Australian Pharmaceutical Benefits Scheme (PBS) (one of the few pieces of public health policy supported by a majority of people in a majority of states in the 1948 Chifley constitutional referendum).

I didn’t know much about trade 12 | INTERNATIONAL ADVOCATE

agreements at that stage, but I had continued meditating ever morning and I felt it kept me in tune in some way with conscience. It seemed very wrong to me that the corporations of another nation should, through the medium of a trade negotiation, strive to alter the governance requirements of another community, which referred to itself as a sovereign nation. That led me to my first Australian Research Council (ARC) Grant. Following conscience later helped me to get other grants on nanotechnology including an ARC grant on how nanotechnology could assist Australian and global public health.

The Risk of Embracing Global Artificial Photosynthesis Since I first started law school, academic and professional life seem really to be about critically examining the hypothesis that there is a field of consciousness behind the material world that will conspire with you help you discover what you’re ‘meant’ to do, in terms of an altruistic ‘calling.’ The premise holds that knowledge is communicated through subtle coincidences that provide answers to profound questions presently being grappled with in your mind. Gradually I came to realise that as you kept following the lead provided by such coincidences and intuitions (many

of which arose during morning meditation) your mind identified more with the interests of others (as a type of ‘wave function’ in terms of physics). In fact it seemed that the true basis of both natural law and international law (the idealistic as opposed to the more positivist forms of law) was physics and concepts such as string theory in which the true equations of general relativity and those of quantum mechanics are joined in a universe of thirteen or more dimensions.

Once, when I was working on the UNESCO Global Health Law and Ethics database, I visited Namibia.

In the Zebra River region of Namibia one can find fields of stone-age hand tools alongside much more ancient stromatolites. Stromatolites are the fossil remnants of cyanobacteria that were amongst the first photosynthetic organisms.

They began creating oxygen on earth 2.5 billion years ago. At the time I had thought very little about photosynthesis. I had been doing neutron and light scattering experiments on nanoparticles with Prof John White’s team at Lucas Heights and Grenoble. I’d told him I wanted to do something about the bigger issues of energy and climate change that humanity and its planet were facing; something to do with hydrogen and with carbon.

My first opportunity to review the ethical and legal aspects of artificial photosynthesis (AP) came at a ‘Nanotechnology for Renewable Energy’ conference at the foot of a glacier at Obergurgl in Austria. One morning, while wandering off from the presentations to the tea lounge, I met Prof. Peidong Yang from the University of California Berkeley.

He told me he was awaiting the outcome of a large grant proposal to study artificial photosynthesis and believed he would solve the problem of developing a practical AP device within his lifetime.

Peidong looked like a relatively young chap and I suggested that humanity did not have much time to wait. I suggested that the work would proceed faster if a large global project (like the Human Genome Project) could be established to foster collaboration amongst AP researchers across the world. He said “good idea, why don’t you do something about it.” This became the theme of my oral presentation the next day at Obergurgl, which was further elaborated in an oral presentation at the 15th congress of the International Society of Photosynthesis research in Beijing a few months later.

Photosynthesis is not only the source of our oxygen, but also, from absorbed carbon dioxide, food and basic fuels (including oil INTERNATIONAL ADVOCATE | 13

(from decayed cyanobacteria in shallow oceans), coal and natural gas (from decomposed old forests)).

Photosynthesis can be viewed as the planet breathing, although in a reverse way to us, taking in carbon dioxide and releasing oxygen. But it can also be considered as the planet’s nervous system – generating a basic voltage that powers the world’s life. This is because photosynthesis takes light energy from the sun and stores it in chemical bonds.

Photosynthesis, the ultimate source of our oxygen, food and fossil fuels, has been operating on earth for 2.5 GYr (1). More solar energy strikes the Earth’s surface in one hour of each day than the energy used by all human activities in one year (2) (3). At present, the average daily power consumption for a citizen to flourish in life with a reasonable standard of living is about 125kWh/ day. Much of this power is devoted to transport (~40 kWh/day), heating (~40 kWh/day) and domestic electrical appliances (~18 kWh/day), with the remainder lost in electricity conversion and distribution (4).

World energy consumption is currently in the region of 450 EJ/ yr, but the solar energy potentially usable is vastly more than this, at ~1.0 kilowatts per square metre of the earth – 3.9×106 EJ/yr (5).

Photosynthetic organisms absorb 14 | INTERNATIONAL ADVOCATE

photons from various regions of the solar spectrum into chlorophyl molecules in thylakoids, or intracytoplasmic membranes; plants do the same in intracellular organelles called chloroplasts. A crucial component of this process is the oxygen-evolving complex (OEC) in a protein known as photosystem II (PSII) to split water (H20) into hydrogen and oxygen. At the core of this process is the tetranuclear manganese/calcium cluster (Mn4CaO5). The structure was recently characterised in a paper in Nature by Professor Kamiya and others at Osaka University to the level of 1.9 angstroms; showing that the cluster had a ‘distorted chair’ shape. Some of its components remain controversial, but such fundamental characterisation of the natural photosynthetic structure makes the scientific and commercial risks of attempting a wholly nanotechnologically-based structure much more feasible.

The electrons produced by sunlightdriven water splitting are captured in chemical bonds by photosystem I (PSI) to reduce NADP (nicotinamide adenine dinucleotide phosphate) for storage in ATP (adenosine triphosphate) and NADPH (nature’s form of hydrogen). In the relatively less efficient ‘dark reaction,’ ATP and NADPH as well as carbon dioxide are used in the Calvin-Benson cycle

to make food in the form of three carbon sugars, then sucrose and starch via the enzyme RuBisCO. In its present, technologicallyunenhanced form, photosynthesis globally already traps around 4,000 EJ/yr solar energy in the form of biomass (6). The global biomass energy potential for human use from photosynthesis as it currently operates globally is approximately equal to human energy requirements (450 EJ/yr) (7) (8)(9).

Yet artificial photosynthesis (AP) is the subject of intense and advanced research by large groups of scientists in all developed nations (10). A dozen European research partners, for example, form the Solar-H network, supported by the European Union (11). The US Department of Energy (DOE) Joint Center for Artificial Photosynthesis (JCAP), led by the California Institute of Technology (Caltech) and Lawrence Berkeley National Laboratory, has US$122m over 5 years to build a solar fuel system.

Caltech and the Massachusetts Institute of Technology have a $20 million National Science Foundation (NSF) grant to improve photon capture and catalyst efficiency, while several Energy Frontier Research Centers funded by the US DOE are focused on GAP-related endeavours

(12).

Natural photosynthesis is capable of substantial improvement with nanotechnology. It is estimated, for example, that even if 3000m2 per person is devoted to it, biomass fuel from natural photosynthesis will indirectly (via intermediate energy carriers) contribute only 36 kWh/ day per person (13). Photovoltaic energy systems are improving their efficiencies towards 25%, and the cost of the electricity they produce is nearing or has passed grid parity in many nations. But they are not an “off-grid� solution and so do not presumptively encourage new community-based governance patterns more likely to emphasize environmental sustainability. Even large solar farms (for example taking up 200 m2 per person with 10%-efficient solar panels) could produce but ~50kWh/day per person (14). This is still a long way short of ~125 kWh/day average developed nation consumption and still leaves the problem of power storage for night use and transport.

Clearly, if we are to make better use of the ratio of available solar energy to world annual energy consumption a better way to convert solar energy into fuel needs to be developed.

In the 1800s most people believed that only birds would ever fly, so they took risks to achieve that ideal INTERNATIONAL ADVOCATE | 15

– attaching large artificial wings and jumping off cliffs. Likewise, most people today still believe that only plants or certain bacteria can “do” photosynthesis, so they take risks genetically engineering them. Yet imagine a world in which international law facilitates every house, road and vehicle on the surface of the earth performing photosynthesis better than plants.

I ended up coordinating the first international conference dedicated to creating a Global Artificial Photosynthesis (GAP) project, held in Australia on Lord Howe Island on 14-18 August 2011. As well as having endorsement from the UNESCO Natural Science Sector, it was an official event of the UNESCO 2011 International Year of Chemistry.

Speakers included national and international experts in various aspects of artificial photosynthesis, such as photovoltaics, hydrogen fuel cells, quantum coherence in electron transfer and international governance systems.

The UK Royal Society have funded me to coordinate a second such meeting at their rural retreat at Chicheley Hall in July 2014 (16).

Will Artificial Photosynthesis Become a Major Area of International Trade and Investment?

Artificially 16 | INTERNATIONAL ADVOCATE

enhanced

photosynthesis, if applied equitably, could produce tradable products that assist crop production on marginal lands, reduce atmospheric CO2 levels, lower geopolitical and military tensions over fossil fuel, food and water scarcity, and create carbon-neutral hydrogen fuel for domestic, community and industrial storage (17). One Global Artificial Photosynthesis (GAP) model involves bio-mimetic polymer photovoltaic generators plugged in to the national electricity grid to power hydrogen fuel and waterless agriculture, chemical feedstocks and polymers for fibre production (18). This model has the advantage of the ‘light’ and ‘dark’ reactions being uncoupled in relation not only to energy/ material flow balance, but also to the requirement to be co-located in space. Such an uncoupling will vastly extend the area for capturing light over otherwise barren land, and also allow the elimination or reduction of molecular oxygen in GAP reactions, enhancing longevity of the components.

Another model emphasizes the greater potential for individual and community economic autonomy implicit in micro or local generation of fuel and food through GAP products installed as a policy priority on domestic dwellings and vehicles. Under such a model, large

GAP facilities providing fuel for industry or backup supply can still be preferentially located near large sources of seawater, CO2, waste heat, high solar irradiation, and in proximity to end use facilities.

Global promotion of AP (through its potential to reduce carbon dioxide) is directly relevant to the 2009 Copenhagen Accord – a nonbinding political agreement that recognized the critical impacts of population growth and fossil fueldriven climate change, as well as the need to establish a comprehensive adaptation program, including international support for those countries most vulnerable to its adverse effects (19). For the first time, all major CO2-emitting countries agreed to a target of keeping global warming to less than 2°C above pre-industrial levels. It contained important undertakings concerning mitigation, including the Copenhagen Green Climate Fund and establishing a mechanism to accelerate renewable energy technology development and transfer (20).

Other important internationally agreed targets to reduce poverty and lack of necessary fuel and food are expressed in the United Nations Millennium Development Goals (21). These critical survival issues for the poor will be exacerbated as the global population grows towards 10 billion

by 2050 and energy consumption rises over 600 EJ/yr.

Many observers have derided such so-called ‘soft-norm’ (unenforceable and non-legally binding) agreements as facilitating a model for business-as-usual by the fossil fuel-related industries that are so central to energy supply and anthropogenic climate change.

What if, however, science could provide in the next twenty years a means by which such goals and principles could be satisfied without compromising the capacity of people to obtain sufficient energy for survival and flourishing?

What if the global economy’s energy dependence on fossil fuels could be reduced as GAP products allowed buildings, cars, planes and ships to become producers of their own fuel? Economies would restructure to emphasize smaller locally-powered and controlled units, minimizing energy use in transportation (much present-day energy consumption is dedicated to gathering raw materials and lowcost labour to make and transport goods for use in other countries).

Nanotechnology-based artificial photosynthesis systems might be programmed to remove carbon dioxide from the atmosphere in proportion as it was used in the burning of the produced ethanol, INTERNATIONAL ADVOCATE | 17

or help coastal industrial plants split sea water using sunlight to produce carbon-neutral hydrogen-based fuels.

These thought experiments involve a future perspective in which solar fuels created though humanity’s capacity to fully understand the principles and enhance (particularly through nanotechnology) the operation of photosynthesis, have become the predominant form of energy generation on the planet. Such micro or local generation of food and fuel will challenge the present paradigm of centralized fossil-fuel oriented power generation controlled by multinational corporations. It may not be an easy transition for them to manage and they may resist or try to delay the change to a GAPfuelled world. International trade and investment law may provide them with a particularly useful mechanism in this regard.

Establishing the principles for the dissemination of GAP technology under international trade and investment law will be equally important as facilitating the scientific collaborations that will allow it to take place in time to address the major societal and environmental challenges that the expanding human population and its dependence on fossil fuels are 18 | INTERNATIONAL ADVOCATE

currently creating.

Societies, just as individuals, acquire virtues or character traits through the consistent application of principles in the face of obstacles (22). In the past those principles were predominantly a matter of philosophic and religious, as well as legislative and judicial debate.

One hypothesis is that it should be statements on bioethics and human rights by international organizations such as the United Nations or UNESCO instead of international trade and investment law that consensually shape the principles applied in globally rolling out new technologies such as artificial photosynthesis. ‘Soft-law’ norms may be particularly valuable in this context. The United Nations Millennium Development Goals, for instance, have a high global symbolic resonance and democratic acceptance. They are particularly focused on issues of energy storage, production and conversion, agricultural productivity enhancement, water treatment and remediation, and experts have encouraged nanotechnology to systematically contribute to their achievement (23). Principles supporting similar goals (and directed to individuals, communities and private corporations and well as States (article 1)) appear in the

UNESCO Universal Declaration on Bioethics and Human Rights (particularly the social responsibility principle in article 14(b) – ‘access to adequate nutrition and water’, 14(c) –‘improvement in living conditions and the environment’ and 14(e) – reduction in poverty and illiteracy’) (24).

Governance of Global Artificial Photosynthesis and International Trade Law There are high stakes for supranational corporations should the nanotechnology revolution begin to develop global artificial photosynthesis (GAP). Many global corporate entities may be concerned that GAP products will take financial and political power from their hands and return it to individuals and communities. Studies such as the Limits to Growth report confirm how the process of corporate profitdriven economic growth utilizing the structures of international trade and investment law is undermining the capacity of the biosphere to support the human species.

International trade, and more particularly international trade and investment law, lies at the heart of the corporate globalisation process by which foreign capital takes advantage of abundant natural resources (particularly timber,

oil, coal and minerals) or cheap labour, to manufacture products for distribution and profitable sale throughout the world using road, rail, sea and air freight transport, reduced tariffs and mass marketing techniques. If international trade in GAP products is to make a successful contribution to public and environmental benefit, then established thinking suggests it must be rolled out utilising this ‘free trade’ and corporate globalisation process.

International trade and investment law, which provides the rules governing the system of corporate globalisation, does not sit easily within established social contract, rule of law, or science-based natural law thinking. There are many reasons for this. One is that international trade and investment law is a normative scheme with a limited range of corporatefocused interests that do not cover the full range of human societal and environmental concerns. A second is that it represents law at the service of private corporate interests that has never emerged from protracted social contract thinking— its democratic legitimacy rests chiefly on an indirect link to the representatives of nation states who have rarely if ever sought a democratic mandate about its activities. The third is that INTERNATIONAL ADVOCATE | 19

its governance mechanisms are not transparent or accountable to international ‘civil society’ or the rule of law. The discussion that follows highlights some important ways in which international trade and investment law may create obstacles to the successful international trade of GAP products.

The World Trade Organisation (WTO) is headquartered in Geneva near many of the United Nations human rights organisations with which it normatively has so little in common. The WTO is comprised of a secretariat and public officials from nation states who have been involved in agreements by which those states agree to not merely reduce various trade barriers, but to allow supranational corporations to take control of major national assets (such as intellectual property, hospital and health services, water, agriculture, power-generation and manufacturing) in a way that is very hard to undo (due to the compensation to corporate stakeholders that must be paid by taxpayers). What has been created, in other words, is a supranational corporation-controlled legal system that is pushing global governance in directions different to those of democratic-based community and civil society institutions committed to societal virtues such as justice, equity and, increasingly, 20 | INTERNATIONAL ADVOCATE

environmental sustainability.

One example of a WTO agreement that may create particular problems for the global roll-out of output from a macroscience NES project is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS is a propatent agreement likely to increase the price paid by governments, communities and citizens for nanotechnology-based products, by requiring increased patent terms and enhanced protection of patent monopolies under threat of trade sanctions. Its norms can be relied upon by corporate lobbyists to restrict the capacity for governments to issues compulsory licenses and mass-produce cheaper versions of patented GAP products in public health emergencies. The WTO General Agreement on Trade in Services (GATS) likewise allows small cliques of government trade officials (many of whom have been appointed from, and/or will subsequently be rewarded with, lucrative private sector employment) to ‘liberalise’ various health–related service areas (such as hospitals, electricity and water utilities) where GAP technology might be prioritized by governments. That privatization process is likely to diminish the likelihood that GAP technology will be speedily implemented in those

sectors, even if that is in the global public interest, if such a course would undermine the relevant corporate profits.

‘Liberalise’ is a word which draws on liberal ideologies of individual freedom, but in this WTO usage it appears to represent pro-corporate ‘spin’ to disguise a process that in effect facilitates the ownership of such services by foreign-based private corporations with little local accountability or motivation to reduce costs to citizens. Such WTO agreements have arisen despite considerable evidence against the public benefit of applying pro-privatisation, neo-classical economic theory to the health and environment sectors. Missing from such sectors, for example, are a genuinely competitive market, government capacity to regulate the market to prevent market failure, or the ability to accurately place a financial value on interests such as good health or a pristine environment.

Other WTO multilateral agreements potentially likely to create obstacles for GAP products include the Agreement on Agriculture (AoA), the Sanitary and Phyto-Sanitary Agreement (SPS) and the Agreement on Technical Barriers to Trade (TBT).

In the period 1970-2000, in order to obtain leniency on national debt

repayments, many less developed nations were coerced into removing trade barriers via the Structural Adjustment Policies (SAPs) of the International Monetary Fund (IMF) and World Bank. SAPs were a practical manifestation of the socalled ‘neoliberal political-economic consensus’ that recommended deregulation of financial institutions and government technology regulators, so that free market forces could operate in more lucrative promonopolistic conditions.

In practice, neoliberal economic policy and SAPs entailed reductions of government expenditure on health, welfare, education and other public services; privatization of government enterprises and utilities; reducing government tax revenues; elimination of tariffs and subsidies (in practise for developing nations but not for protected agricultural industries in developed nations); undermining laws for minimum wages, collective bargaining, unfair dismissal and improved employment conditions, opening of capital and currency markets; removing barriers to foreign direct investment; and promotion of private property rights over natural resources and public goods. Such WTO policies, in other words cut across and even opposed policy initiatives and domestic legislation emerging out of established social INTERNATIONAL ADVOCATE | 22

contact understandings predicated on foundational social virtues such as justice, equity and environmental sustainability. To the extent that GAP products may have a profound impact of developing nations economic situations and debt levels SAPs could have a major impact in either facilitating or inhibiting their roll-out.

WTO agreements do contain some recognition of public health and environmental norms that are likely to assist global roll-out of GAP products. Article 27.2 of TRIPS, for example, provides: Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment.

Likewise article XIV of GATS provides: …nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures: (a) necessary to protect public morals or to maintain public order; See footnote 5 23 | INTERNATIONAL ADVOCATE

(b) necessary to protect human, animal or plant life or health; (c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to: (i) the prevention of deceptive and fraudulent practices Article XXb of the GATT (adopted in 1947 and incorporated into WTO Agreements in 1994) similarly allows an exception to GATT corporate privatisation rules when that is necessary ‘to protect human, animal, or plant life or health.’ Exceptions along these lines are now found in the Agreements on Application of Sanitary and Phytosanitary Measures (SPS agreements) and the Technical Barriers to Trade (TBT) agreement. The problem is that such considerations exist as difficult to justify exceptions, rather than considerations equally important as core international trade law concepts such as ‘liberalisation’ (which can be translated as ‘open-access to social control by supranational corporations’).

To give an example, in 1988 the European Union (EU) imposed a ban on the sale of beef from cattle fed with artificial hormones following the precautionary principle and

evidence that this could cause cancer or nerve disorders. The US challenged the decision in 1996 and a WTO panel of trade lawyers ruled the ban was illegal (against the restricted set of WTO norms they apply) chiefly because it was inconsistent with the SPS agreement and its risk-assessment procedures.

More recently, United Statesbased corporations have been instrumental in inducing the US Trade Representative (USTR) to negotiate a series of regional and bilateral Free Trade Agreements (FTAs) in which provisions are included increasing intellectual monopoly privileges (IMPs), promoting investor-state dispute settlement mechanisms and pressuring health-technology costeffectiveness assessment systems in ways not possible in the WTO (where the bargaining power of the US is countered by opposing blocks of developing nations). These mechanisms too could become obstacles to global roll-out of GAP products.

The United States has a long history of using trade law to influence health and environmental policies in other nations to the benefit of its corporations. In 1988, for example, an amendment called ‘Special 301’ was made to a section of the Trade Act 1974 (US). This became

the principal statutory authority under which the US investigated and, if need be, threatened trade sanctions against foreign countries that maintained acts, policies and practices that its corporations considered violated, or denied their rights or benefits under trade agreements, or, though otherwise being justifiable, reasonable or non-discriminatory, nonetheless burdened or restricted US commerce. The USTR was required under the Trade Act 1974 (US), to create, in its annual review, a Special 301 Report Priority Watch List. Using this mechanism corporations could petition the USTR to investigate and, ultimately, threaten trade sanctions against what they perceive to be an unjustifiable, unreasonable or discriminatory policy related to utilization of GAP products by a foreign country (for example a subsidy for GAP products that were competing in the market against existing patented products).

The capacity of US bilateral trade agreements to undermine global marketing of GAP products is highlighted by their use to attempt to alter public-focused regulatory processes such as quarantine, blood fractionation, safety and cost-effectiveness assessment of health technologies. A World Health Organization (WHO) commission and numerous civil society INTERNATIONAL ADVOCATE | 24

publications have documented the contradictory relationship of such provisions with the Doha Declaration on TRIPS and Public Health and their potentially deleterious impacts on public health.

The tactics that might be employed by supranational companies in connection with trade agreements to preferentially alter domestic governance arrangements concerning GAP products are both multitudinous and morally questionable for not being capable of universal application and lacking coherence with global or domestic social contracts. Apart from specific provisions increasing intellectual monopoly privileges, they may include revolving door appointments (between private interest lobby groups and the USTR trade offices) and ‘working groups’ established under bilateral and regional trade agreements to lobby for and block domestic governance changes in the other signatory nations.

Global Artificial Photosynthesis and Investor-State Provisions Another tactic of particular concern as a potential obstacle to global rollout of GAP products are attempts by supranational corporations to influence global governance regimes by means of so-called ‘investor state’ 25 | INTERNATIONAL ADVOCATE

dispute settlement provisions. In the 1990’s, civil society prevented the creation of a supranational investment protection agreement (the Multilateral Agreement on Investment or MIA) that would have allowed the global implementation of such provisions, but they have nonetheless proliferated in a series of bilateral and regional arrangements.

Basically, they allow supranational corporations to sue (before small panels of commercial arbitration lawyers with little understanding of or desire to apply international public law) other nations who have imposed governance requirements (even when in the public health and environmental interest based on good scientific evidence) if their commercial interests are thereby impeded.

Investor-state provisions surfaced in the failed Multilateral Investment Treaty (MAI) in the 1990’s and in the 1994 North American Free Trade Agreement (NAFTA) between the United States (US), Canada and Mexico (25). They are now part of over 2000 bilateral investment treaties (BITs) (26). They grant investors covered by them a right to initiate dispute settlement proceedings (before a panel of trade lawyers known as commercial arbiters) for damages against foreign governments in their own right (27).

The lawyers officiating on such arbitral proceedings view such investment agreements as private contracts, are paid by the parties and do not necessarily take account of domestic public health and environment protections – creating a pro-investor jurisprudence. It should be of concern to those supporting marketing of GAP products that investor-state challenges have occurred in relation to a broad spectrum of public health and the environment legislation and policies.

Supranational corporations could use this mechanism to claim compensation where a global NES project was subsidised by a government on the basis that its products were more environmentally friendly or safe from a public health point of view.

Statutes on water protection, waste disposal and waste treatment as well as universal health care and access to affordable medicines have been challenged by supranational corporations under investor-state mechanisms.

Should GAP products begin to look as if they are likely to replace those upon which supranational corporations have substantial investments (in say old photosynthesis fuels or electricity distribution networks), then those corporations may well resort to

investor-state mechanisms to protect their profits and inhibit the roll-out.

The investor-state legal mechanism sits in a twilight zone between international public law (including international human rights law) and commercial arbitration. In Philip Morris’s investor-state claim against Australia one of the lawyers will be chosen by Philip Morris. That company will undoubtedly choose a commercial arbitrator who views the issues through the narrow vision of contractual rights. This results, for example, in the appointment of a lawyer likely to view sovereign states as having no capacity to issue interpretive declarations of their intentions under the treaty (as would normally be the case under international public law). The United States has never lost an investorstate dispute settlement claim (28).

Australia can choose another member of the panel, but this might often be done through the agency of a private legal firm that doesn’t appreciate the importance of ensuring a lawyer is appointed with public law expertise. Each party then chooses the president of the panel who has the deciding vote. It will be important but difficult for Australia to get a lawyer with a public law background into that role.

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Investor-state provisions have been criticised as allowing foreign investors leverage to undermine government legislation promoting, for example, sustainable development, environmental protection, and public health policy (29).

Investor-state dispute settlement claims have challenged attempts by nation states to regulate against chemicals proven to cause developmental disability (30), neurotoxins (31), hazardous lawn pesticides (32) and carcinogenic gasoline additives (33). The mechanism has also been used by foreign corporations to attempt to overturn legislation on water security (34), waste disposal (35), waste treatment (36) and a US ban on cattle with suspected bovine spongiform encephalopathy (BSE or mad cow disease) (37).

The Australian Productivity Commission’s final report in December 2010 recommended that the government should seek to avoid the inclusion of investor-state dispute settlement provisions in its trade agreements. The Commission found against the need for such provisions because of the desire on the part of governments to retain a good reputation with foreign investors, the lack of systematic regulatory bias against foreign investors, the availability of insurance and investor-state 27 | INTERNATIONAL ADVOCATE

contracts as well as the “considerable policy and financial risks” arising from them (38).

The Australian government signalled that it did agree with the inclusion of investor-state dispute settlement provisions in the TPPA, though this was probably one of the main reasons the TPPA was initiated by the US. In a published letter responding to an opinion editorial piece (by the author and a colleague) about the inclusion of investor-state provisions in TPPA, Australian Trade Minister Simon Crean wrote: Let me say we have serious reservations about the inclusion of investor-state dispute settlement provision in this agreement. We do not want new layers of red tape under the guise of trade liberalization. Australian negotiators will make this clear at the Melbourne meeting which concludes today.” (39) In 2011 the Australian Government went further and announced in a Trade Policy Statement: Some countries have sought to insert investor-state dispute resolution clauses into trade agreements. Typically these clauses empower businesses from one country to take

international legal action against the government of another country for alleged breaches of the agreement, such as for policies that allegedly discriminate against those businesses and in favour of the country’s domestic businesses…

The Gillard Government supports the principle of national treatment — that foreign and domestic businesses are treated equally under the law. However, the Government does not support provisions that would confer greater legal rights on foreign businesses than those available to domestic businesses.

Nor will the Government support provisions that would constrain the ability of Australian governments to make laws on social, environmental and economic matters in circumstances where those laws do not discriminate between domestic and foreign businesses.

The Government has not and will not accept provisions that limit its capacity to put health warnings or plain packaging requirements on tobacco products or its ability to continue the Pharmaceutical Benefits Scheme.

In the past, Australian Governments have sought the inclusion of investor-state dispute resolution procedures in trade agreements with

developing countries at the behest of Australian businesses.

The Gillard Government will discontinue this practice. If Australian businesses are concerned about sovereign risk in Australian trading partner countries, they will need to make their own assessments about whether they want to commit to investing in those countries.

Foreign businesses investing in Australia will be entitled to the same legal protections as domestic businesses but the Gillard Government will not confer greater rights on foreign businesses through investor-state dispute resolution provisions. (40) Since the election of a conservative government in 2013, this policy has changed. A trade agreement has been signed between Australia and South Korea which contains an ISDS provision and some ‘carve outs’ for health and the environment. It is likely that this will be the approach of the Australian government to ISDS in the TPPA (41). This, combined with a raft of privatisation measures driven by the National Commission of Audit (NCA) could see a massive haemorrhaging of sovereignty in favour of multinational corporations and several steps taken towards Australian citizens becoming corporate –serf-consumers in their INTERNATIONAL ADVOCATE | 28

own land.

International Public Law and Photosynthesis as Planetary Common Heritage

Fourth, there can be no weaponry developed using common heritage materials. Fifth, the commons should be preserved for the benefit of future generations (47)(48).

A GAP Project governance structure emphasizing international law might protect photosynthesis from excessive patents promoting inequitable or unsustainable use within the class of United Nations treaties involved with protecting the common heritage of humanity (such provisions cover, for instance, outer space (42), the moon (43), deep sea bed (44), Antarctica (45) and world natural heritage sites (46)).

Five core components are generally regarded as encompassing the common heritage of humanity concept under public international law. First, there can be no private or public appropriation; no one legally owns common heritage spaces or materials. Second, representatives from all nations must manage such resources on behalf of all (this often necessitating a special agency to coordinate shared management).

Third, all nations must actively share with each other the benefits acquired from exploitation of the resources from the commons heritage region, this requiring restraint on the profit-making activities of private corporate entities and linking the concept to that of global public good.

The claim for GAP and its core components to common heritage status would likely be at an inchoate stage initially. Probably the closest analogies involve claims that genetic diversity of agricultural crops (49), plant genetic resources in general (50), biodiversity (51) or the atmosphere (52) should be treated as not just areas of common concern but subject to common heritage requirements under international law. The non-binding UNESCO Universal Declaration on the Human Genome and Human Rights, for example, only goes so far as to declare in Article 1 that: “The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity.” Article 4 states: “The human genome in its natural state shall not give rise to financial gains” (53).

Other international law concepts that could be influential are those that may declare GAP a global public good (54), an aspect of technology sharing obligations (55), or those arising under the international right to health (set out for example

29 | INTERNATIONAL ADVOCATE

in article 12 of the United Nations International Covenant on Civil and Political Rights)(56). The UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations expresses a concept of planetary common heritage that could encompass GAP in article 4: The present generations have the responsibility to bequeath to future generations an Earth which will not one day be irreversibly damaged by human activity. Each generation inheriting the Earth temporarily should take care to use natural resources reasonably and ensure that life is not prejudiced by harmful modifications of the ecosystems and that scientific and technological progress in all fields does not harm life on Earth. (57) Planetary medicine is now a growing field in which the expertise of medical professionals is directed towards issues of global health and environmental protection, particularly including climate change (58).

A GAP Project could well be promoted through domestic and international media as a defining symbolic endeavour of planetary nanomedicine (59) (60). One benefit of this for artificial photosynthesis researchers is that

funding agencies respond indirectly to public and governmental national interest concerns and nanotechnology, despite its great promise, still has a problematic place in the popular imagination owing to safety issues. A GAP Project therefore represents an excellent opportunity to create high-profile awareness of nanotechnology as a positive contributor to overcoming major contemporary public health and environmental problems.

The process of photosynthesis is as central to life on earth as DNA; thus there are likely to be similar major debates over whether patents should be allowed over any part of the photosynthetic process. Such a debate will be unlikely to inhibit patents being taken out over many aspects of GAP. The US Supreme Court, for example, has ruled that genes (despite the symbolic importance of DNA to human heritage) can be patentable if they are isolated and purified (61).

GAP research and development will also face major issues about whether patents should cover GAP products as well as processes and functions (62). It is likely that in the US the ‘utility’ for a GAP patent (as is the case for DNA) will be that it must be specific, substantial and credible (63). If GAP IMP ownership becomes fragmented, researchers INTERNATIONAL ADVOCATE | 30

in the field may find their ‘followon’ research hampered by the high cost and difficulty in negotiating contracts with large numbers of GAP IMP owners. Each individual GAP patent owner, for example, without some prior licensing and sharing arrangement, will have an incentive to overcharge other researchers requiring access (64).

Conclusion Global artificial photosynthesis could replace globalisation as an unsustainable model of perpetual economic growth at the service of multinational corporations. This could transform the current model in which citizens are made serf-debtors to corporations upon graduation form university, upon buying a house with a mortgage and through having their superannuation gambled on the stock exchange.

In such an anthropocene world people exist like tread mill rats frantically running round and round from brief job till next part-time brief job in fear of debt and naively believing their vote will bring change or that their capacity to make choices in a supermarket (the corporate globalisation outer circle of hell) equates with democratic responsibilities.

In the coming epoch known as the Sustainocene (which must 31 | INTERNATIONAL ADVOCATE

last a billion years if humanity is to repay its debt to evolution and earn a status as an ethical species) economies might restructure to emphasise smaller locally-powered units, minimising the energy used in gathering raw materials and lowcost labour to make and transport goods for use in other countries.

In the Sustainocene international law will be replaced by global law representing people rather than facilitating, as it does now, the rule of law being hijacked by oligarchies in the name of nation states (under the fiction that they represent the will of the people) and their special interest corporate clients. Electronic communication will allow direct citizen participation in democratic processes locally and globally to a much greater extent. Corporations of a certain size will be required to be ‘married’ each year to nominated public goods as a condition of registration under corporations law.

A world powered by artificial photosynthesis will be much closer to being ecologically sustainable as a foundation for society valuing contemplation in the elderly and the ‘Copernican’ revolution in consciousnesss (to realise the paradoxical truth that it has a wave function existing outside the physical form as well as a particle function within its brain).

Moving towards environmental sustainability as a non-

anthropocentric foundational social virtue alongside justice and equality is a jurisprudential investigation I find very challenging. The next generation of legal and political leaders will need to stay idealistic and optimistic about humanity’s future if this transformation is to occur. One of my inspirations in this regard is the tank commander Oddball in ‘Kelly’s Heroes.’ Oddball’s favourite line when faced with a bleak and hopeless scenario is “don’t hit me with them negative waves.

Have a little faith, man. Have a little faith.” To get to the Sustainocene from these bleak and destructive times we all need a bit of faith in humanity’s destined moral role as a good steward over the planet.

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Legalise Torture?

By Alexandra Shearer Fifth-year Student, Bachelor of Arts / Bachelor of Laws, ANU

Introduction The first decade of the 21st century has been labelled ‘the age of torture’ (1). Yet Mirko Bagaric argues that there is ‘not enough official torture in the world’ (2). He considers the ‘absolute prohibition against torture morally unsound and pragmatically unworkable’ (3) and that ‘torture is morally defensible, not just pragmatically desirable’ (4). This article will disprove this argument, and contextualise the discussion within the wider framework of the positive/natural law debate in human rights law to show that the absolute prohibition of torture reflects natural law theories of human rights, is morally

sound, pragmatically workable, and should be upheld under all circumstances. This article will highlight the legal, moral and practical issues surrounding support for official torture by considering moral arguments surrounding the legalisation of torture, critiquing utilitarian calls for its legalisation, highlighting problems with regulation of torture and finally discussing the slippery slope argument.

Background Definition The Convention Against Torture and Other Cruel, Inhuman or Degrading

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Treatment or Punishment defines torture as ‘severe pain and suffering, generally used as an interrogation device or a punitive measure’ (5).

This definition is widely recognised and accepted, however in many instances countries have been accused of stretching the definition and engaging in interrogation practices which should be legally classified as torture (6). These ‘grey areas’ are acknowledged by the European Court of Human Rights, which has stated that ‘the word “torture” included in Article 3 of the [European] Convention [on Human Rights] is not capable of an exact and comprehensive definition’ (7).

This article will use the definition of ‘torture’ adopted in the U.N. Convention Against Torture, with a primary focus on state-sanctioned use of physical or psychological force in interrogation. It focuses on conceptual issues regarding the use of torture and examines these using the example of Israel’s experiment with legalised torture. It does not canvass in detail the controversial use of ‘enhanced interrogation’ by the United States.

Debate There is a long-running theoretical debate in rights discourse between positive and natural law theorists.

Natural law theorists posit that rights are imbued in every human by virtue 35 | INTERNATIONAL ADVOCATE

of their humanity, and that ‘what the law is depends in some way on what the law should be’ (8). This means that the laws of society are founded on the inherent and natural rights of humans; the theory upholds human rights as equal, intrinsic, universal and non-derogable. In contrast, legal positivists believe that rights exist as they are proscribed through the legal system, and that, as Hart stated, ‘it is in no sense a necessary truth that law reproduce or satisfy certain demands of morality’ (9).

From a positivistic perspective, no rights are absolute; they exist only to the extent they are explicitly laid out in law. Further, there is no obligation of morality or ethics in any legal system.

Naturalists, however, believe that fundamental human rights exist by virtue of humanity, not legislation. This means that absolute rights do exist and warrant protection in modern legal systems. Rather than affirming a positivistic requirement of concrete laws to establish and manage human rights, the moral, legal and practical difficulties inherent in the legalisation and regulation of torture reinforce the importance of recognising – and protecting – the natural and universal human right to freedom from torture.

Legal Position

Reality

The prohibition against torture is one of the most fundamental tenets of international human rights law, and extends to all humans by virtue of their humanity (10). The preamble of the Universal Declaration of Human Rights reinforces this naturalist approach to human rights when it appeals to the ‘inherent dignity … of all members of the human family’ (11). Beyond this natural right, the prohibition against torture has also been entrenched in an array of international documents, including the Universal Declaration of Human Rights of 1948, the Declaration against Torture of 1975 and the U.N. Convention Against Torture, which was ratified in 1987 (12). Article 2.2 of the U.N. Convention Against Torture explicitly states that there can be no derogation whatsoever from the ban on torture, no matter the circumstances (13). The prohibition of torture has also been accepted as a jus cogens norm of international law, which extends protection to all humans, regardless of their nations’ ratification of the relevant treaties (14). Thus, ‘one of the most fundamental values of democratic societies’ is firmly entrenched in all levels of international law (15).

With such a solid legal foundation, the prohibition against torture cannot be lightly ignored or easily overruled.

Despite this absolute prohibition, even liberal democracies use torture to combat their adversaries.

An Amnesty International study of 195 countries and territories found reports or torture or ill-treatment by state officials in more than 150 countries, which was reported as “widespread or persistent” in more than 70 of those countries (17), including the US, Canada and parts of the EU (18). Bagaric uses this to support his argument in favour of legalising torture (19), but in reality it reinforces the importance of reaffirming the absolute prohibition against such practices and the need to prosecute violators. Although it is a right that appears to be commonly ignored, the right to be free from torture is inherent in all humans and should be protected, not encouraged, by the international legal system.

Moral Theory Bagaric’s attempt to square the legalisation of torture and regulated violation of fundamental human rights norms with moral theory is flawed and far-reaching.

Bagaric postulates that ‘torture is permissible pursuant to … [a discussion of ] ethical theories’ (20).

This argument does not correlate with current rights discourse or INTERNATIONAL ADVOCATE | 36

legal reality. International human rights law has developed to protect individuals from harm or illtreatment by authorities, regardless of their race, religion, nationality or lack thereof (21). This system provides the moral basis for the legal prohibition against torture, and posits that rights belong to all humans, universally, based on a man’s dignity, and so cannot be removed at risk of ‘estrang[ing] [men] from their moral nature’ (22).

Bagaric posits a positivistic approach to human rights law, arguing particularly against the absolutist overtones of deontological rightsbased moral theory (23). Bagaric responds to Rawls’ statement that ‘only rights-based theories take seriously the distinction between human beings and protect certain rights and interests that are so paramount that they are beyond the demands of net happiness’ (24), by concluding that no right is absolute, and that not even the right to life remains sacrosanct (25). He then equates the legalisation of torture to the use of the right to self-defence in threatening situations, to show that no right can exist unconditionally.

Such legal positivism disregards moral considerations in legal decisions, and requires a strict division between law and non-legal factors such as reason, ethics and politics (26). This separation denies 37 | INTERNATIONAL ADVOCATE

the existence of fundamental moral rights owed to all humans, and necessitates acceptance that no right is absolute. In deeming all extra-legal arguments irrelevant to legal analysis, positivists (and Bagaric) argue away fundamental rights of human beings and weaken the moral and legal framework of rights discourse and enforcement.

Human rights differ crucially from legal rights. This difference is as intentional as it is valid. Legal rights protect existing legal entitlements; ‘human rights ground “higher” supra-legal claims’ (27). For this reason, rights exist outside, and above, the legal framework, and should be upheld and protected (never removed) by legislation.

These human rights work because they ‘protect each of us from abuse by protecting all of us unconditionally’ (28). To achieve efficacy, this system requires an absolute acceptance of inviolable rights. This also means accepting the sometimes-ambiguous nature of rights claims, and allowing that some actions can never be justified, even if they provide the potential for some greater good. Fundamental human rights must remain, as Dworkin argues, ‘political trumps held by individuals’ (29). Morally, considerations of the greater good are never enough to override the fundamental right to freedom from

torture, ill treatment or harm caused by the state.

Bagaric, however, believes that torture can be morally and practically justified, leading to divergence between rights theory and practice. In the ideal scenario, where rights theory and practice converge, this is thought to be ‘largely because the posited rights have helped to construct society, and human beings, in their image.

Where they diverge, claims of human rights point to the need to bring (legal and political) practice into line with (moral) theory’ (30).

This division between legal practice and moral theory is precisely why human rights and ideas such as the right to be free from torture and ill treatment exist. A legal positivist argues that there are no rights without remedies, and no remedies except as provided by law. Natural law theory shows us that human rights ground “higher” claims – such as the absolute right to be free from torture – which are fundamentally based on human dignity (31).

Acceptable Torture? A Utilitarian Discussion Bagaric considers torture to be acceptable when it is used to gather information required to avert a risk to society (32). The crux of Bagaric’s argument is a utilitarian hypothesis

of using torture to protect the greater good. Bentham explains that torture should be considered acceptable when ‘the danger of what may ensue from his not doing it is a greater danger than even that of an innocent person’s suffering the greatest degree of pain’ (33). This argument is the most commonly cited by proponents of legalising torture. An examination of expert opinion and tangible evidence shows, however, that torture runs contrary to utilitarian aims and cannot be evidentially supported (as shown by a discussion of the ‘ticking bomb’ scenario), that torture causes more harm than good, and that the information gained is ultimately unreliable.

Ticking Bomb The ‘ticking bomb’ scenario hypothecates a situation wherein the torture of one individual has the potential to save hundreds of innocent lives, placed in peril by an acknowledged but hidden bomb.

Proponents claim that such cases are distinctly possible and cannot be wished away, and that an outright ban is limiting and puts the lives of innocents in peril (34). Experts, however, agree that the number of confirmed ‘ticking bomb’ scenarios is ‘infinitesimal’ (35). Reconciling utilitarian arguments for legalised torture becomes difficult when one INTERNATIONAL ADVOCATE | 38

compares the rarity of ‘ticking bomb’ scenarios with the vast number of innocent victims of torture globally.

Commentators have roundly condemned the use of the ‘ticking bomb’ scenario in creating public policy as ‘disastrous, serving only to rationalise the institutionalisation of torture’ (36). In reality, ticking bomb arguments cannot be evidentially supported, and merely reinforce calls for improving intelligence gathering, analysis and coordination, in an effort to pre-empt any such situation.

They have proven implausible and should remain ‘interesting case[s] for philosophy students to ponder about the limits of moral absolutism’ (37) rather than justification for overriding such a fundamental human right.

abuse of detainees in US custody … damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority” (39). Torture has fostered hatred and caused further tension and atrocities (40).

Well-documented case studies and empirical data show that torture ostensibly perpetrated to protect ‘the greater good’ has the opposite effect – ‘fermenting hatred and spirals of violence, but also resulting in the breakdown of civilian institutions amounting to … collective trauma for the entire community’ (41). Such evidence illustrates why torture cannot be justified and should not be legitimised, including by reference to utilitarian arguments.

More Harm than Good

Reliability

A second blow to utilitarian arguments comes from evidence that torture can actually harm far more than it ever helps. This point is particularly salient when considering the ramifications of revelations of torture and ill treatment in the United States prisons of Abu Ghraib and Guantánamo Bay. Not only have the photos from Abu Ghraib been used as recruiting posters for jihad (38), but the US Senate Armed Services Committee has also found that “the

Thirdly, and importantly, information gained through torture is widely accepted to be unreliable at best.

Some experts even believe that it is ‘one of the least effective ways to gain information from suspects’ (42). This simple fact that torture generally does not work seriously undermines utilitarian arguments in favour of legalised torture.

Given the non-derogable status of the prohibition against torture in international human rights law, the use of torture for interrogative

39 | INTERNATIONAL ADVOCATE

purposes cannot warrant deviation from such a concrete legal rule, let alone justify the moral implications of ignoring such a basic natural right. Once one acknowledges that the pain and suffering caused by torture rarely achieves anything save false confessions and potentially misleading information, it is impossible to sustain a utilitarian argument in favour of the practice.

The unreliable nature of information gained through torture, stemming from systemic and ineradicable sources of error from torture processes, precludes it from admission in most Western legal systems (43). While, to an extent, this is a reflection of the existing international prohibition against the practice, it also shows a wide acceptance of the information’s unreliability and legal utility. At no point does Bagaric discuss this unreliability or inadmissibility.

This omission is a key flaw in his argument, and strongly discredits utilitarian arguments in favour of torture. In failing to consider either the reliability or legal utility of torture, Bagaric undermines his own positive approach to human rights law.

Regulation v Prohibition In a more practical discussion of his proposal, Bagaric follows

Dershowitz’s lead in calling for regulation of torture. Dershowitz calls for the ‘ formal requirement of a judicial warrant as a prerequisite to nonlethal torture … [to] decrease the amount of physical violence directed against suspects’ (44). The idea is that this will minimise harm and increase accountability (45).

Such arguments stem from concerns that the absolute prohibition has simply pushed torture below the ‘radar screen of accountability’ (46).

The notion that rights must be protected through positive legal actions – even at the expense of what some consider to be inherent human rights – is a positivistic approach. A natural rights theorist could never condone such explicit acceptance of an inherently rights-defeating practice. Reality disproves the positivistic approach, because even when theoretically regulated, ‘torture has a tendency to metastasize and spread into ever more horrific forms’ (47).

Examination of a case study shows that legalisation of torture is realistically impossible and ultimately dangerous. Israel was, for more than a decade, the only country in the world formally to adopt legal torture. The Landau Commission recommended that the Israeli government ‘should acknowledge that some measure of coercion is permissible, and INTERNATIONAL ADVOCATE | 40

then codify and carefully monitor the allowable techniques’ (48).

The Commission relied on the ‘ticking bomb’ premise discussed above, and a utilitarian approach to human rights to ‘prevent a greater evil’ and allow the use of moderate but regulated physical and psychological in interrogation (49).

The proposed regulation methods failed, however, and the practice became widespread and indiscriminate meaning that the Landau Commission ultimately facilitated the transition of torture into routine practice in ‘almost every GSS interrogation’ (50).

A decade later, in response to the widespread violation of torture regulations, Israel’s High Court of Justice intervened with a ruling that the coercive measures of interrogation were illegal as they were degrading and infringed upon the detainees’ human dignity (51).

Although there is evidence that there was wide-scale, agency-wide complicity in the practice (52), there have been few (if any) consequences for those involved since the Court’s ruling on the matter. Official investigations have led to only a small number of prosecutions in which the interrogators were all either acquitted or given symbolic sentences (53). Israel’s experience with legalised torture shows that it cannot be effectively regulated.

41 | INTERNATIONAL ADVOCATE

Even after a conclusively proven systemic deviation from torture guidelines, the lack of genuine investigation and failure of accountability mechanisms show that Bagaric’s concept of regulated torture remains incompatible with natural or positive theories of human rights, or simple legal, moral or practical reality.

Slippery Slope Argument The Israeli case illustrates that a serious danger arising from Bagaric’s proposal is the spread of torture. ‘Once tolerated for some limited purpose, torture tends to spread like ink on wet paper’ (54).

This statement sums up the slippery slope argument – a key idea in the defence of an absolute prohibition against torture. The experience in Israel illustrates the difficulties involved in stemming the spread of torture once it starts. Torture’s slippery slopes are manifold. ‘[It] increasingly takes in more suspects than those approved, leads to harsher methods than are authorised, and leads to greater bureaucratic fragmentation’ (55).

Once it started, the GSS regularly tortured ‘political activists … students suspected of being proIslamic, sheiks and religious leaders … the brothers and other relatives of persons listed as “wanted”, and Palestinians in professions liable to

be involved in preparing explosives’ (56). In some cases, wives and children of detainees were arrested and ill-treated to pressure their husbands to confess (57). This devolution from strictly regulated torture to widespread malpractice highlights why torture should remain absolutely prohibited.

It is clear that the slippery slope argument is not limited to unregulated torture. The only way of protecting the universal human right to freedom from torture is to uphold an absolute prohibition against the practice, and prevent the slope from forming at all. As Pokempner states, ‘it is difficult to torture just a little’ (58). The floodgates, once open, have the dangerous tendency to burst, and do so quickly. Although there are claims that the legalisation of torture will reverse the slippery slope argument and create a level of accountability (59), accountability does not unequivocally accompany legalisation, as seen in Israel. Even the best regulation will not protect innocents from the spread of torture.

To protect the universal natural right to freedom from torture, state sanctioned torture must remain absolutely prohibited. This will help governments worldwide to retain their legitimacy and uphold, unimpeded, the fundamental and inherent human rights of their inhabitants.

Conclusion The debate surrounding the legalisation of torture provides a grounding context for an often conceptually vague debate regarding natural and positive approaches to human rights.

As illustrated above, there are a number of weaknesses in Bagaric’s argument. By arguing that the proscription of legalised torture will better protect the rights of all humans, Bagaric poses a basic positivistic argument, based on the surmise that no rights are absolute, and that they do not exist until they are legislated. A consideration of the moral, legal and practical implications of this argument shows that it is not sustainable, and will not solve the problems surrounding torture in the world today. Although rights discourse is often difficult and can be unclear, it must be remembered that ‘human rights are human (rather than legal) rights. If they did not function differently from legal rights there would be no need for them’ (60). A natural law perspective of human rights enables consideration of political, social and ethical morality in law, which renders it superior to positivistic theories in protecting universal human rights (61).

Bagaric’s argument in favour of INTERNATIONAL ADVOCATE | 42

legalized torture is not morally, legally or practically valid. His attempts to justify overriding one of the most fundamental human rights is flawed, both morally and practically, as history shows that torture cannot be regulated and that it often slides down a slippery slope. Bagaric’s failure to account for the unreliability of information gathered through torture and his heavy reliance on the ticking bomb scenario are further weaknesses in his argument. Given that ‘organised torture yields poor information, sweeps up many innocent, degrades organizational capabilities, and destroys interrogators’ (62), it is impossible to agree with Bagaric’s statement that there is ‘not enough official torture in the world’.

The absolute prohibition against torture is both morally sound and pragmatically workable and should retain its status as an absolute right with no possibility for derogation, no matter what the circumstances.

From a human rights and international law perspective, the legalization of torture cannot and must not be condoned under any circumstances.

1.

Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Engel Verlag, 2nd ed, 2008) 158.

2.

Mirko Bagaric and Julie Clarke, ‘Not Enough Official Torture in the World? The 43 | INTERNATIONAL ADVOCATE

Circumstances in which Torture is Morally Justifiable’ (2005) 39:3 University of San Francisco Law Review 581, 581.

3.

Ibid 616.

4.

Ibid 582.

5.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, Supp. No. 51, pt. 1, art. 1, at 197, U.N. Doc.A/29/51 (1984) (‘U.N. Convention against torture’).

6.

Vittorio Bufacchi and Jean Maria Arrigo, ‘Torture, Terrorism and the State: a Refutation of the Ticking-Bomb Argument’ (2006) 23:3 Journal of Applied Philosophy 355, 356; and Amnesty International, Amnesty International Report 2003, London.

7.

Ireland v the United Kingdom (Judgment) (European Court of Human Rights, Appl. No. 5310/71, 18 January 1978) [89] (Judge Zekia).

8.

Ronald A Dworkin, ‘“Natural” Law Revisited’ (1982) 36:2 University of Florida Law Review 165, 165.

9.

H.L.A Hart, Concept of Law (Clarendon Press, 2nd ed, 1994) 185-6.

10.

Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, 2013) 15.

11.

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).

12.

Bufacchi and Arrigo, above n 6, 356.

13.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, Supp.

No. 51, pt. 1, art. 1, at 197, U.N. Doc.A/29/51 (1984) [hereinafter U.N. Convention against torture].

14.

For example, Prosecutor v Anto Furundzija (Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Case No IT-95-17/1-T10, Trial Chamber, 10 December 1998) [153-154].

15.

Egmez v Cyprus (Appeal) (European Court of Human Rights, Appl. No. 30873/96, 21 December 2000) [77].

16.

Bufacchi and Arrigo, above n 6, 368.

17.

Amnesty International, ‘Introduction: Amnesty International Report’, 2004 accessed at <http://web.amnesty.org/report/2004/index-eng>.

18.

Amnesty International, ‘Amnesty International Report 2004: Torture and Ill-Treatment’, available at <http://www.amnesty.org/resources/ report04/stats-eng/text/03.html>.

19.

Bagaric and Clarke, above n 2, 615; see also Alan M. Dershowitz quoted in James Silver, ‘Why America’s Top Liberal Lawyer Wants to Legalise Torture’, Scotsman (Scotland), May 22, 2004, available at <http://thescotsman.scotsman.com/international/

cfm?id=582662004>.

20.

Bagaric and Clarke, above n 2, 596.

21.

John Quigley, ‘International Limits on Use of Force to Elicit Confessions: A Critique of Israel’s Policy on Interrogation’ (1988) 14 Brookings Journal of International Law 485, 491.

22.

Donnelly, above n 10, 15.

23.

Bagaric and Clarke, 604.

24.

John Rawls, A Theory of Justice (Harvard University Press, 1971) 27-28.

25.

Bagaric and Clarke, above n 4, 603.

26.

Bruno Simma and Andreas L Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’ (1999) 93:2 The American Journal of International Law 302, 304; see also H.L.A Hart, ‘Positivism and Separation of Law and Morals’ (1958) 71 Harvard Law Review 593, 606-615.

27.

Donnelly, above n 10, 13.

28.

Desmond Manderson, ‘Another Modest Proposal: In Defence of the Prohibition against Torture’ in Miriam Gani and Penelope Mathew (eds), Fresh Perspectives on the War on Terror (ANU E Press, 2008) 46.

29.

Ronald Dworkin, Taking Rights Seriously (Gerald Duckworth & Co. 4th ed, 1978) in Bagaric and Clarke, 599.

30.

Donnelly, above n 10, 16.

31.

Ibid 15.

32.

Bagaric and Clarke, above n 2, 611.

33.

Jeremy Bentham, ‘The Classical Statement of the Case’, in William F. Schultz (ed), The Phenomenon of Torture: Readings and Commentary (University of Pennsylvania Press, 2007) 224.

34.

Michael Ignatieff, ‘Moral Prohibition at a Price’ in Kenneth Roth and Minky Worden (eds), Torture: Does it Make Us Safer? Is It Ever OK? A Human Rights Perspective (The New Press, 2005) 24-25.

35.

William F. Schulz, ‘Is the “Ticking Bomb” Case Plausible?’, in William F. Schulz (ed), The Phenomenon of Torture: Readings and Commentary (University of Pennsylvania Press, 2007) 261.

36.

Eitan Felner, ‘Torture and Terrorism: Painful Lessons from Israel’, in Kenneth Roth and Minky Worden (eds), Torture: Does it Make Us Safer?

Is It Ever OK? A Human Rights Perspective (New York: The New Press, 2005) 43.

37. Ibid.

38.

Reed Brody, ‘The Road to Abu Ghraib: Torture and Impunity in US Detention’ in Kenneth Roth and Minky Worden (eds), Torture: Does it Make Us Safer? Is It Ever OK? A Human Rights Perspective (The New Press, 2005) 151.

39.

Jamie Mayerfeld, ‘The High Price of American Exceptionalism: Comparing Torture by the United States and Europe after 9/11’, in Michael Goodhart and Anja Mihr (eds), Human Rights in the

21st Century: Continuity and Change since 9/11 (Palgrave Macmillan, 2011) 108.

40.

Sumner B. Twiss, ‘Torture, Justification, and Human Rights: Toward an Absolute Proscription’ (2007) 29 Human Rights Quarterly 346, 360.

41.

Jennifer K. Harbury, Truth, Torture and the American Way: The History and Consequences of US Involvement in Torture (Beacon Press, 2005) 15759; Amnesty International, Torture Worldwide: An Affront to Human Dignity (2000) 42.

Schulz, above n 35, 262.

43.

See, eg Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) 1465 UNTS 85, art 15.

44.

Alan M Dershowitz, ‘The Torture Warrant: A Response to Professor Strauss’ (2004) 48 New York Law School Law Review 275, 237.

45.

Bagaric and Clarke, above n 2, 614.

46.

Dershowitz, above n 44, 283.

47.

Twiss, above n 40, 362.

48.

‘Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activities: Landau Commission Report, sec 3.16 (1987) quoted in Torture and Ill-treatment: Israel’s Interrogation of Palestinians from the Occupied Territories (Human Rights Watch/ Middle East, 1994) 50.

49. Ibid.

50.

Felner, above n 36, 34.

51.

Judgment Concerning the Legality of the General Security Service’s Interrogation Methods (Supreme Court of Israel, I.L.M. 1471, 1481, September 1999).

52.

Ardi Imesis, ‘Moderate Torture on Trial: Critical Reflections on the Israeli Supreme Court Judgment concerning the Legality of General Security Service Interrogation Methods’ (2001) 19:2 Berkeley Journal of International Law 328, 329.

53.

Felner, above n 36, 41.

54. Dinah Pokempner, ‘Command Responsibility for Torture’, in Kenneth Roth and Minky Worden (eds), Torture: Does it Make Us Safer? Is It Ever OK? A Human Rights Perspective (New York: The New Press, 2005) 167.

55.

Darius Rejali, Torture and Democracy (Princeton University Press, 2007) 24.

56.

Felner, above n 36, 40.

57. Ibid.

58.

Pokempner, above n 54, 167.

59.

Bagaric and Clarke, above n 2, 614.

60.

Donnelly, above n 10, 13.

61.

Dworkin, above n 8, 186.

62.

Rejali, above n 55, 478.

INTERNATIONAL ADVOCATE | 44

Law and Religion: Reflections on a CIPL Internship

By Rui Rong Lam Final-year Student, Bachelor of Laws, ANU

I was given the opportunity to complete an internship with the Centre for International and Public Law (CIPL), ANU, under the supervision of Joshua Neoh in Semester 2, 2013, as part of the Law Internship (LAWS 2230) course.

Joshua was co-authoring a book on law and religion in Australia and kindly allowed me to assist him with the research for the book. It was my first experience researching materials beyond the regular scope of coursework essays and working directly with an academic

supervisor. It was a very practical and useful experience that I am sure will stay with me for the rest of my law degree and into my professional law career. The internship allowed me to acquire skills and knowledge that are not normally taught in a law course. Overall, it was a highly rewarding experience.

As part of the internship, I was also required to write a 6000-word essay on a topic approved by the supervisor. My paper explored the tension between freedom of

Photo Credit: Stefan Schlautmann

45 | INTERNATIONAL ADVOCATE

religion and freedom of expression, focusing specifically on blasphemy law and religious anti-vilification law – a controversial area. I was interested in finding a balance between the protection of these two opposing fundamental freedoms. My research led me to identify blasphemy law as protection of religious beliefs and religious anti-vilification laws as protection of religious believers.

Despite the difference, I proposed the abolition of both type of laws in Australia, and to use instead existing religious-neutral laws – such as the Summary Offences Acts or common law tort of defamation – to protect the community from religious hate speech. This proposal was made with the practical understanding that balancing these two competing rights in multicultural and democratic Australian society is an extremely intricate task. By using existing religious-neutral laws, it is more likely that a balance can be struck, as legal protection can still be given to the community without overly limiting the freedom of expression.

Last but not least, none of this would have been possible without Joshua’s knowledgeable and patient supervision. I would like to take this opportunity to thank him for his supervision throughout the internship.

INTERNATIONAL ADVOCATE | 46

DATE Saturday April 12 TIME 9:15am – 4pm ADDRESS Solferino Room, Level 1 Red Cross House 3 Dann Close Garran COST $60 general or $30 concession card holders and Red Cross staff/volunteers/members

ICRC/Yannick Muller

To book your place, go to http://www.trybooking.com/77275 This interactive course provides an introduction to the fundamental principles of IHL. Topics include; • What are the Geneva Conventions and their Additional Protocols and how were they developed?

• What are the activities and responsibilities of Red Cross in times of armed conflict?

• What do the red cross, crescent and crystal symbols mean?

• How do the military apply the rules in a combat zone?

• What happens when IHL is breached?

Cost includes materials, tea/coffee and lunch. The course has no prerequisites and previous experience with Red Cross, international law or legal studies is not required. This course may be counted at 6 CDP points.

47 | INTERNATIONAL ADVOCATE

DATE Saturday May 17 TIME 9:15am â&#x20AC;&#x201C; 4pm ADDRESS Solferino Room, Level 1 Red Cross House 3 Dann Close Garran COST $80 general or $40 concession card holders and Red Cross staff/volunteers/members

ICRC/Marko KokĂŽc Muller

To book your place, go to http://www.trybooking.com/77278 Issues in IHL is designed for those seeking in-depth knowledge and an examination of contemporary themes in IHL. Issues in this course changes each time due to the availability of expert speakers but topics in the past have included the Arms Trade Treaty, detention in Afghanistan, cyber warfare, private military companies and more.

Cost includes materials, tea/coffee and lunch. The course builds on the core content covered in the IHL Fundamentals course but previous experience with Red Cross, international law or legal studies is not required. This course may be counted at 6 CDP points.

INTERNATIONAL ADVOCATE | 48

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International Advocate:

Editors & Submissions Wanted!

The International Advocate is a magazine published by the ANU International Law Society. Each edition brings together articles by scholars, practising lawyers, non-government organisations and students.

We are currently looking for STUDENT EDITORS to join the publications team, and for ARTICLE SUBMISSIONS. Student Editors Editing positions are flexible, so you can work on areas which interest you, whether that be corresponding with contributors, reviewing submissions, designing layouts or coordinating distribution. All undergraduate and postgraduate students are welcome (you do not need to have studied International Law).

Article Submissions Articles could be based on PhD research, honours theses or class assignments, or be book reviews, competition reports or commentaries on issues relevant to International Law. Ideally we like articles to be in Microsoft Word format.

INTERNATIONAL ADVOCATE | 50

ABOUT THE

ANU INTERNATIONAL LAW SOCIETY The ANU International Law Society (ILS) is a student run orgnisation located at the Australian National University in Canberra. The society is dedicated to promoting interest in and the study of international law. Its activities include publishing the International Advocate featuring contributions from students, academics and practitioners, as well as providing insightful events and valuable academic support to students.

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