Australia,US torture and the power of international law

ABSTRACT

Australia cooperated extensively with the George W. Bush administration during the ‘war on terror.’ However, in doing so, Australia failed to condemn, and in some instances, condoned US torture and detention programs. Does Australia’s conduct demonstrate a failure of international law and human rights to constrain Australia’s actions? Although the Howard government was heavily criticised for failing to uphold human rights in the fight against terrorism, international law was not forgotten. This article argues that international law shaped Australia’s cooperation with the US. Australia strategically used international laws to legitimise its cooperation with the US in the face of evidence of US torture. International law was not dismissed to pursue national security interests but used to legitimise Australia’s security policies.     

Editorial

Abstract

During this last century war has taken more lives and wrought more damage than in all of human history. Its persistence - with over a hundred armed conflicts on the scale of ‘war’ raging in the last decade - prompts a search for causes, since diagnosis comes before a cure. Many fingers point to the stress of poverty as a major contributing factor, but both anecdotal and modelling approaches reveal that poverty has not been and is not now a significant proactive or enabling factor: if poverty were to become a thing of the past there would be no assurance that wars would be eliminated or even significantly reduced. Poverty is associated with societal stress and with sporadic and endemic societal violence, but stress does not lead to war or play a major role in enabling the rise to power of war prone leaders and their associated elites unless other factors are at play. The causal factors conducive to war making are varied but all are characterised by tribal, religious, and ethnic rivalries that political leaders exploit to mobilise support for war, and/or by the lust for money or hegemonic power of the political leadership. It is exceptionally difficult to prevent the rise of leaders who, for various self-serving reasons, are able to gain power and are prone to pursue policies leading to war. The way to thwart these ambitions is to create conditions, nationally and internationally, that are inimical to the rise to power of such leaders and, if they do gain power, to make the realisation of their war bent policies too costly to them. At the national level of governance the essential elements of policies to create such war inhibiting conditions are education, especially at the primary level, a free independent media, and a guaranteed protection of political and civil rights - in a phrase, democratic governance. At the international level of governance the support calls for financial and other forms of assistance that would enable national governments to carry through the democracy enhancing programmes and projects related to education and to political and civil rights, and measures to strengthen democratic control of the system of international institutions and to constrain the exercise of national sovereignty in those areas where doing so enhances ‘the global common good’, one key element of which is the radical diminution of international and intrastate wars. Economic and social rights are the other aspects that comprise the concept of ‘human rights’, and, though they are mutually reinforcing, for tactical reasons the struggle to achieve these rights should be pursued on a separate track from the struggle to gain political and civil rights that appear to face less formidable obstacles and could thus, in the short and medium term, progress sufficiently to have a significant impact in reducing the occurrence and intensity of wars.     

The Politics of Disciplining Water Rights

This article examines how the legal systems of Andean countries have dealt with the region's huge plurality of local water rights, and how official policies to ‘recognize’ local rights and identities harbour increasingly subtle politics of codification, confinement and disciplining. The autonomy and diversity of local water rights are a major hindrance for water companies, elites and formal rule‐enforcers, since State and market institutions require a predictable, uniform playing field. Complex local rights orders are seen as irrational, ill‐defined and disordered. Officialdom cannot simply ignore or oppress the ‘unruliness and disobedience’ of local rights systems: rather it ‘incorporates’ local normative orders that have the capacity to adequately respond to context‐based needs. This article examines a number of evolving, overlapping legal domination strategies, such as the ‘marrying’ of local and official legal systems in ways that do not challenge the legal and power hierarchy; and reviews the ways in which official regulation and legal strategies deny or take into consideration local water rights repertoires, and the politics of recognition that these entail. Post‐colonial recognition policies are not simply responses to demands by subjugated groups for greater autonomy. Rather, they facilitate the water bureaucracy's political control and help neoliberal sectors to incorporate local water users’ rights and organizations into the market system — even though many communities refuse to accept these policies of recognition and politics of containment.     

Migration discipline hijacked: distances and interruptions of a research militancy

Abstract

In this paper we reflect on some instruments to interrupt the governmentalization of knowledge production at play in migration studies – mainstream, critical, and radical alike. We take knowledge production as the struggle-field where confronting, resisting, and interrupting the disciplining of migrations that arises from their academic and governmental incorporation as objects (of research and of policies). In contrast, we sketch a political epistemology of migrations, asking: which knowledge practices and interventions account for the contestedness migrations spark, and for the turbulence, excess, and upheavals migrants trigger? The paper discusses two of such paths. First, we sketch an approach to research that works ‘within and against’ the distances that perform and define migration field-sites and their pristine subject positions; second, we argue for the development and deployment of interruptions against those unquestioned chains of equivalences that are embedded in migration knowledge. Building on our engagement with Libyan war refugees in Tunisia and in Italy, we reflect on how these instruments somehow bring scholarly knowledge to its limits while working within its premises.     

The fusion of law and ethics in cultural heritage management: The 21st century confronts archaeology

Abstract

Archaeologists around the world face complex ethical dilemmas that defy easy solutions. Ethics and law entwine, yet jurisprudence endures as the global praxis for guidance and result. Global legal norms articulate ‘legal rights’ and obligations while codes of professional conduct articulate ‘ethical rights’ and obligations. This article underscores how a rights discourse has shaped the 20th century discipline and practice of archaeology across the globe, including in the design and execution of projects like those discussed in the Journal of Field Archaeology. It illustrates how both law and ethics have been, and still are, viewed as two distinct solution-driven approaches that, even when out of sync, are the predominant frameworks that affect archaeologists in the field and more generally. While both law and ethics are influenced by social mores, public policy, and political objectives, each too often in cultural heritage debates has been considered a separate remedy. For archaeology, there remains the tendency to turn to law for a definite response when ethical solutions prove elusive.

As contemporary society becomes increasingly interconnected and the geo-political reality of the 21st century poses new threats to protecting archaeological sites and the integrity of the archaeological record during armed conflict and insurgency, law has fallen short or has lacked necessary enforcement mechanisms to address on-the-ground realities. A changing global order shaped by human rights, Indigenous heritage, legal pluralism, neo-colonialism, development, diplomacy, and emerging non-State actors directs the 21st century policies that shape laws and ethics. Archaeologists in the field today work within a nexus of domestic and international laws and regulations and must navigate increasingly complex ethical situations. Thus, a critical challenge is to realign approaches to current dilemmas facing archaeology in a way that unifies the ‘legal’ and the ‘ethical’ with a focus on human rights and principles of equity and justice. With examples from around the world, this article considers how law and ethics affect professional practice and demonstrates how engagement with law and awareness of ethics are pivotal to archaeologists in the field.     

Community Antagonism Towards Asylum Seekers in Port Augusta,South Australia

An overtly hostile response to asylum seekers was observed in questionnaire responses provided by residents of Port Augusta, South Australia in April 2002. A social construction approach to identity and representation was used to interrogate this antagonism within its social, cultural, political and geographical contexts. Asylum seekers were constructed as ‘burdensome’, ‘threatening’ and ‘illegal’, and opposition to them was set within the discursive framework of a ‘Self/Other’ binary. Enmity towards asylum seekers was articulated concurrently with overwhelming support for the Federal Government's exclusive and deterrence‐oriented asylum policies. However, vehement opposition was expressed regarding the government's decision to construct Baxter Immigration Reception and Processing Centre in close proximity to Port Augusta. Factors contributing to the respondents’ negative perceptions of asylum seekers include xenophobia (specifically Islamophobia), events of geopolitical significance, and problematic government and media representations of asylum seekers. An awareness of these factors is necessary to unpack and, potentially, to destabilise the negative constructions of asylum seekers circulating in contemporary Australian discourses. Their entrenchment in the national consciousness may lead to tangible social implications including fear, friction and ultimately violence between the ‘Self’ and ‘Other’, and this should therefore be countered. Community antagonism also contradicts notions of a culturally tolerant Australia and fosters electoral support for the policies of exclusion and deterrence that undermine Australia's commitment to international human rights frameworks.

相似文献   

Prices and Politics in Andean Water Reforms

Water rights are best understood as politically contested and culturally embedded relationships among different social actors. In the Andean region, existing rights of irrigators’ collectives often embody historical struggles over resources, rules, authorities and identities. This article argues, first, that the neo‐liberal language that is increasingly used in water policies is ill‐suited for recognizing and dealing with these social, cultural and political dimensions of water distribution. Local water rules and rights, their dynamics, and the way they are linked to power relations, local identities and contextualized constructions of legitimacy, remain invisible in neo‐liberal policy discourse. Second, this same discourse actively destroys these local rights systems and presents itself as the only viable cure to the problems it generates. The ways in which local irrigators’ collectives attempt to protect their water security raise questions about the fundaments and effects of neo‐liberal water reforms, but these questions are neglected or poorly understood. This article proposes a more situated, layered and contextualized approach to Andean water questions, not just to improve representational accuracy but also to increase political visibility and legitimacy of peasant and indigenous water claims. What is needed is not just a new ‘typology’ or ‘taxonomy’ of water rights, but an alternative ‘water rights ontology’ that understands locally existing norms and water control practices, and the power relations that inform and surround them, as deeply constitutive of water rights.     

Principled pragmatism in climate policy? The EU and changing practices of climate justice

Climate change constitutes one of the most pressing political problems of our time and has profound implications for global justice. However, despite the recent progress of the international negotiations embodied in the Paris Agreement, most scientists and activists agree that the adopted measures are not adequate or ‘just’ considering the magnitude of the problem. Thus, there is a pressing need for political forerunners that could push the regime towards a more just handling of the problem. The European Union for most of the time has presented itself as a strong advocate for progressive climate action and has been called a climate vanguard or ‘green normative power’. This paper critically assesses the EU's role concerning climate change from a perspective of global political justice, which builds on a tripartite theoretical conception, consisting of ‘non-domination’, ‘impartiality’ and ‘mutual recognition’. It inquires to which conceptions of justice the EU's climate strategy and approach to the international negotiations have corresponded, how and why changes have come about, and whether the EU was able to influence the international regime. The paper finds that while the EU started out from a focus on political measures linked to impartiality, after the failed negotiations in Copenhagen in 2009 it has become more open towards policies and instruments in line with mutual recognition and non-domination. Thus, the emphasis moved away from top-down, legally binding measures, towards voluntary bottom-up procedures, a recognition of difference and diplomatic outreach activities. While this shift was necessary to reinstate the EU's influence and secure the Paris Agreement, it could hamper the quest for robust climate abatement measures and global climate justice.     

The securitisation of migrant smuggling in Australia and its consequences for the Bali Process

This article analyses the Bali Process in the context of Australia’s securitised approach to migrant smuggling, and the consequences this has for both the Australia–Indonesia diplomatic relationship and the Bali Process overall. The Bali Process is the premier regional forum for combating migrant smuggling and is well placed to discuss and develop regional cooperation policies on irregular migration within the region. In particular, the Bali Process remains a key domain where Australia and Indonesia can contest and amend the norms and practices around the human rights of refugees and asylum-seekers. This article traces and analyses the emergence of Australia’s bilateral agreements for offshore processing and resettlement between 2011 and 2014, which Australian political elites aligned rhetorically to the Bali Process, but which the authors argue remain in tension with stated Bali Process objectives in terms of rights and protections for asylum-seekers and refugees. This article identifies that Australia’s security-driven policies and regional disagreements over humanitarian responsibility remain an ongoing tension within Bali Process states, and provides commentary on the implications of this for future Australian policy relating to regional cooperation on irregular migration.     

Becoming the ‘party of civil rights’: the Radical Party, 1962–1979

ABSTRACT

The article reconstructs how the Italian Radical Party became, from the mid-1960s, the party of ‘civil rights’, and what its main battles for these rights were between 1967 and 1979. In the Italian political system the Party played a crucial role in the process of re-institutionalization that took place in the 1970s, helping to transfer demands formulated in social and cultural terms since the 1960s to the legislative-institutional level. Making the battle for civil rights the object of their own political action had a systemic meaning for the Radicals – namely, to undermine the dominion of the Christian Democrats and redefine the relations between the political sphere and society. This was closely linked to the political strategy of the party and to the organizational form it gave itself from 1967 onwards. These aspects, however, did not remain unchanged between 1967 and 1979; rather, they fed on the Radicals’ evolving vision of Italian society (on its social turmoil) on the one hand, and on the other they reacted to the evolution of the Italian political scenario, in particular to the possibility of building a parliamentary alternative to the Christian Democracy.     

Constitutionalists,Despots, Whigs,and Revisionists: Tudor Parliamentary History in the 20th Century

The 20th century was the great age of Tudor parliamentary history. This essay examines the contributions and profound changes to the field made by the leading historians of the era, especially Sir John Neale and Sir Geoffrey Elton. Taking as its starting point the whiggish ideas of Stubbs's Constitutional History of England, it traces the impact of A.F. Pollard, G.M. Trevelyan, and Sir Lewis Namier on the field. At its core, though, lie the often acrimonious differences of opinion between Neale and his pupil, Elton. For Neale the Elizabethan parliaments were characterised by an increasingly puritanical Commons eager to wrest control of debates on religion and the succession away from the queen. In so doing this created a constitutional clash that would eventually lead to civil war in the mid 17th century. This ‘orthodoxy’ was savagely critiqued by a revisionist ‘school’ led by Elton that dismantled the interpretation of Neale and replaced it with an institution that was not dominated by political conflict but by largely consensual politics. It was also a position that gave equal weight to the Lords and to the importance of the business of parliament – legislation. The revisionists were masters of critique and highly effective at demolishing Neale, but did little to replace his theories or to explain religio‐political conflict – in doing so it could be argued that they killed the subject. The essay ends by suggesting some new approaches to Tudor parliaments that could help revitalise the subject.     

Rentiers and Autocrats, Monarchs and Democrats, State and Society: the Middle East Between Globalization, Human 'Agency', and Europe

The key concerns in work on the politics of the Middle East in the past decade have been economic and political liberalization/democratization (or the absence thereof) and security, both domestic and international, along with a continued focus on the Arab‐Israeli conflict. There has been an increasing recognition that these issues are strongly interrelated. Europe cannot avoid concerns over economic and political stability in the region affecting its own interests. Together with economic reasons for engagement with the region, this has brought about a desire to see economic and political reform take place. The Euro‐Mediter‐ranean Partnership Initiative (EMPI) is one result of this. The background against which these policies, concerns and hopes are evolving is ‘globalization’, both of the discourse of ‘democracy’ and in the growing hold of liberal market economics internationally. Recent research on the politics and political economy of the region, and on EMPI, however, shows that a combination of political‐economic and related political‐cultural factors, along with the Arab‐Israeli conflict, continue to hamper political and economic reform in the Middle East, and that European policy as currently conceived is unlikely to affect this greatly. Yet such recent work also shows that aspects of globalization are changing the environment in which Middle Eastern regimes are having to function, while at the same time offering civil society new tools. Middle Eastern societies do, to varying extents, possess the necessary ‘spaces’ and traditions for human ‘agency’ to escape the constraints of domestic and international ‘structures’ and evolve new political cultures‐including democratic ones. Existing judicial or legislative institutions may acquire volition of their own and reinforce this process. There is nothing in ‘Islam’ that necessarily obstructs such possibilities. And supposedly ’obsolete‘ monarchies might yet be among the most successful types of regime in coping with such change.     

Analysing international nuclear order

William Walker's article, ‘Nuclear enlightenment and counter‐enlightenment’, raises fundamental questions about the history of efforts to construct order in international politics in relation to nuclear arms and weapons‐related capabilities. However, Walker's ‘enlightenment’ and ‘counter‐enlightenment’ tropes are clumsy and unsatisfactory tools for analysing contemporary policies concerning nuclear deterrence, non‐proliferation and disarmament. Walker holds that in the 1960s and 1970s most of the governments of the world came together in pursuit of ‘a grand enlightenment project’. This thesis cannot withstand empirical scrutiny with regard to its three main themes—a supposed US‐Soviet consensus on doctrines of stabilizing nuclear deterrence through mutual vulnerability, a notion that the NPT derived from ‘concerted efforts to construct an international nuclear order meriting that title’, and the view that the NPT embodied a commitment to achieve nuclear disarmament. Walker's criticisms of US nuclear policies since the late 1990s are in several cases overstated or ill‐founded. Walker also exaggerates the potential influence of the United States over the policies of other countries. It is partly for this reason that the challenges at hand—both analytical and practical—are more complicated and dif cult than his article implies. His work nonetheless has the great merit of raising fundamental questions about international political order.     

Nudging Bentham: indirect legislation and (neo-)liberal politics

SUMMARY

The debates over Sunstein and Thaler’s Nudge oppose libertarianism and paternalism, or defend the authors’ proposed manipulation of individuals’ ‘choice architectures’ as a consistent system of libertarian paternalism. My essay looks beyond the terms of this debate and revisits Bentham’s ‘Indirect Legislation’ in order to excavate the issues raised by the deployment of technologies of behavioural economics in schemes of government. On the one hand, nudging is nothing other than a mild and carefully considered mode of indirect legislation, and the authors are right to join Bentham in pointing out that the landscape they seek to improve is always with us; we are always already governed and governing others, and we might as well govern and be governed better than we do/are. On the other hand, nudge-like innovations reveal the extent to which Bentham’s insights have been captured by a disciplinary orientation that removes its subjects from political space. Put differently, the issue with this kind of government is not that it interferes with our liberty so much as that it presumes our lack of political orientation and efficacy. Bentham’s liberal subjects inhabit a public and even republican space that Sunstein and Thaler’s neo-liberal subjects have long since abandoned.     

The Paris Agreement and the new logic of international climate politics

This article reviews and assesses the outcome of the 21st Conference of the Parties (COP‐21) to the United Nations Framework Convention on Climate Change (UNFCCC), held in Paris in December 2015. It argues that the Paris Agreement breaks new ground in international climate policy, by acknowledging the primacy of domestic politics in climate change and allowing countries to set their own level of ambition for climate change mitigation. It creates a framework for making voluntary pledges that can be compared and reviewed internationally, in the hope that global ambition can be increased through a process of ‘naming and shaming’. By sidestepping distributional conflicts, the Paris Agreement manages to remove one of the biggest barriers to international climate cooperation. It recognizes that none of the major powers can be forced into drastic emissions cuts. However, instead of leaving mitigation efforts to an entirely bottom‐up logic, it embeds country pledges in an international system of climate accountability and a ‘ratchet mechanism’, thus offering the chance of more durable international cooperation. At the same time, it is far from clear whether the treaty can actually deliver on the urgent need to de‐carbonize the global economy. The past record of climate policies suggests that governments have a tendency to express lofty aspirations but avoid tough decisions. For the Paris Agreement to make a difference, the new logic of ‘pledge and review’ will need to mobilize international and domestic pressure and generate political momentum behind more substantial climate policies worldwide. It matters, therefore, whether the Paris Agreement's new approach can be made to work.     

Europe at the crossroads of three worlds: alternative histories and connections of European solidarity with the Third World, 1950s–80s

Abstract

Over the past few years, there has been growing interdisciplinary interest in the history of European solidarity movements that mobilized on behalf of the ‘Third World’ in the wake of the post-war decolonization process. Focusing on European campaigns against the Vietnam War and Pinochet’s Chile, this article aims at positioning these international solidarity movements in the broader history of North–South and East–West exchanges and connections in Europe during the Cold War. It explores some key ideas, actors and alternative networks that have remained little studied in mainstream accounts and public memories, but which are key to understanding the development of transnational activism in Europe and its relevance to broader fields of research, such as the history of Communism, decolonization, human rights, the Cold War and European identity. It delves into the impact of East–West networks and the Communist ‘First World’ in the discovery of the Third World in Western Europe, analyses the role of Third World diplomacy in this process, and argues how East–West and North–South networks invested international solidarity campaigns on ‘global’ issues with ideas about Europe’s past and present. Together, these networks turned resistance against the Vietnam War, human-rights violations in Pinochet’s Chile, and other causes in the Third World into themes for détente and pan-European cooperation across the borders of the Iron Curtain, and made them a symbol to build a common identity between the decolonized world and Europe. What emerges from this analysis is both a critique of West-centred narratives, which are focused on anti-totalitarianism, as well as an invitation to take North–South and East–West contacts, as well as the role of European identities, more seriously in the international history of human rights and international solidarity.     

The RAAR Project — Heritage Management Aspects on Reburial After Ten Years of Work

Abstract

The general purpose of the international reburial project, Reburial and Analyses of Archaeological Remains (RAAR), is to evaluate reburial as a method for the long-term storage and preservation of waterlogged archaeological remains. Since 2001 material samples have been buried, retrieved, analysed systematically, and the results reported.

RAAR has mainly focused on the degradation of materials commonly encountered on archaeological sites, and on environmental monitoring techniques in order to determine what type of material can be reburied and for how long. The project has concluded that a heritage institution could provide short- or long-term curation for its archaeological archive by using reburial depots provided they are set up according to guidelines and restrictions stipulated by the RAAR project.

However, there are management and legal aspects that need to be discussed and resolved before each reburial project. Actual reburials that have been carried out so far are often a solution to emergency situations and lack collection and management policies. The questions ‘what’, ‘why’, and ‘for how long’ have been forgotten and need to be addressed. The legal protection of a reburial site is also important. This paper discusses these aspects and their consequences and highlights possible differences in approaches between the countries involved in the RAAR project.     

In the footsteps of George Orwell: Patrick McCarthy as Italian correspondent for Tribune, 1978–1980

Abstract

This paper examines Italy's contribution to the United Nations (UN) and how effective this has been in protecting Italian interests. The first part outlines the areas where Italy's input to the UN has been most relevant in terms of ideas, policies and participation, such as for example the campaign to ban the death penalty and its participation in collective security through participation in UN peacekeeping missions. This paper also highlights the critical role that Italy's long-standing positions on UN reform and the enlargement of the Security Council have played in defining Italy's status in the international community, and asks whether there have been significant changes in the traditional Italian position and its loyalty to the UN and, more generally, to the multilateral system. The second part analyzes the origin and rationale of Italy's policies toward the UN and their effectiveness in defining and defending the national interest. It explores the idea that these policies have been determined by the ‘institutional multilateralism’ of the Italian Constitution, the ‘genetic multilateralism’ of the Italian society and the ‘forced multilateralism’ of Italy as a middle-range power. Italy's positions on the UN and its reform are examined in the light of claims that Italy's foreign policy reflects its ‘complex of exclusion’ and presumed lack of influence in the ‘major stakes’ in world diplomacy.     

Imperial Projections & Crisis: The Liberal International Order as a ‘Pseudo-Empire’

ABSTRACT

This article proposes that empire serves as a suitable framework for understanding how and why the liberal international order is exhibiting symptoms of ‘imperial overstretch’. Noting that many of its critics and opponents subscribe to a simplistic and yet powerful narrative that views liberal internationalism as a pseudo-imperial project, it shows that detractors tend to perceive democracy promotion and globalisation as the two main instruments of an order-building endeavour that is remoulding international structures along imperial lines to reflect liberal values and institutions. Within the transatlantic community, critics from the left resent liberal internationalism for its corporate greed, its imperialistic tendencies, wars of intervention, and the veneer of humanitarianism that disguises its ideology of a ‘civilising mission’. Critics from the right fear the erosion of national boundaries and the subversion of the nation-state as a result of mass migration, the dilution of national identities, and the constant meddling of supra-national organisations. Externally, the order is under attack by revisionist states, competitors, and violent non-state actors. Ideological incompatibility and differences in motives notwithstanding, these hostile forces are increasingly united in their struggle against the liberal order – with the risks of its possible disintegration all too familiar to the students of empire.     

Contested Self-determination: Indonesia and East Timor's Battle over Borders,International Law and Ethnic Identity

ABSTRACT

East Timor's twin experiences of colonialism established its collective identity and internally recognised rights of self-determination. Political boundaries were created through negotiated treaties between Portugal and the Netherlands, and Portuguese colonialism provided East Timor with its status as a non-self-governing territory under international law in 1960. Indonesian colonialism resulted in a discursive battle over identity as both the Indonesian government and East Timor's independence movement employed ethnocultural narratives and myths to persuade the international community of the legitimacy of their respective political claims. During debates over East Timor's political status that occurred between 1975 and 1999, Indonesia emphasised the ethnic ‘kinship’ between Indonesians and East Timorese. In contrast, East Timor's representatives emphasised cultural links with Portugal and Melanesia to prove its distinctiveness from Indonesia.