James5

I recently read this article by William Worster on the immunity of peacekeepers operating without a Status of Forces Agreement – it’s an interesting read, especially the discussion of the general law on the immunity of foreign forces in host States.

Relying on the US case of the Schooner Exchange, Worster writes that when a host State allows a foreign aircraft or ship to enter its territory, immunities can be implied to be granted, due to the host State consenting to the presence of the foreign forces.

What surprised me was that this was also extended to situations where a host State is forced to allow entry of a foreign ship or aircraft (e.g. because it is in a state of emergency) – not an entirely hypothetical situation if you remember the 2001 incident of the US Navy plane that made an emergency landing in China.

A strong tension arises in that scenario, because the foreign State has no choice but to enter the host, given that their vessel is in a state of emergency; and the host State has no choice but to allow entry, as in the case of the US Navy plane it virtually crash-landed. Thus, no consent has been issued to either grant immunity or to enter on terms excluding immunity.

Worster resolves this tension in favour of the foreign State, “where consent to the immunity regime cannot be accepted freely, yet consent to the presence of the foreign organ must be granted, we can conclude that the host State is precluded from denying the usually applicable rules of State immunity.”

This seems to me to be slightly at odds to the general principles underlying immunity and State sovereignty, which emphasise that grants of immunity must be traced back to the consent of the host State, whether that consent is implied or explicit. I don’t quite see why the foreign State can’t be precluded from denying any claim to immunity due to their entry – especially as the “usually applicable rules of State immunity” would indicate that grants of immunity are entirely discretionary.

Perhaps Worster’s view is a more pragmatic interpretation of the law – States probably don’t want to have to be at risk of searches and detention when their vessels are in a state of emergency. And if immunities are all about encouraging comity between nations and easing the interaction between States, then certainly forcing immunity could be understandable.

I also think that this may be another instance where the theory of international law, that immunity is only granted with the consent and at the exceptional discretion of the host State, doesn’t quite reflect the reality of its practice, where immunity for foreign forces can be so easily implied that it virtually is the status quo.

Popularity: 3% [?]

It seems all posts on Israel/Hamas are bringing out the worst on both sides. Charles Lechner examines the folly of labelling Israel’s acts as genocide without a proper legal basis, but some people commenting refuse to accept that the legal definition matters or can see the real danger in the ‘exploitative’ use of the terms holocaust or genocide.

Popularity: 3% [?]

Rudd released his climate change solution and not everybody’s happy. Greens want higher cuts and less handouts to industry, business says 5% is going to hurt with the Global Financial Crisis and everything.

Below is my snarky take on the first page of the government’s Carbon Pollution Reduction Scheme and You booklet, part of the $130 million their planning to spend on convincing us that the scheme is a good thing.

I didn’t actually have the visceral reaction many people did to the PM’s announcement, but do think that if we realistically want to take the lead on climate change and make a difference, we need to go beyond 5%.

Climate change is a global problem caused by carbon pollution.

Climate change is a global problem, so don’t blame us for not doing anything, especially when no-one else is doing anything either.

The Carbon Pollution Reduction Scheme will build a low-pollution
economy of the future for Australia.

The CPRS will build a low-pollution economy in the far off, distant, post-election future of Australia.

Under the scheme, Australia’s biggest polluters will pay for the pollution they generate and there will be a limit placed on the number of Australian carbon pollution permits issued each year.

Except for the generous handouts of permits we issued to the heaviest polluters, who are being paid for contributing to climate change in the past.

The sale of permits will raise $11.5 billion for the Australian Government in 2010-11. Every cent will be used to help households and businesses adjust to the scheme.

The $11.5 billion raised from the sale of permits will be used to help offset the cost of the scheme, thereby nullifying any effect on consumption or emissions, as well as serving as any easy bit of middle-class welfare to sure up the votes from ‘working families’.

The scheme will result in changes to a wide range of prices, but the
overall increase in the cost of living will be modest.

Don’t worry, this is all symbolic, nothing will really change. In fact, we’re going to ‘compensate’ you beyond the real rise in prices, so you’ll end up consuming more!

The Carbon Pollution Reduction Scheme and You outlines the package
of cash assistance, tax offsets and other measures the Government will
provide to help Australian households maintain their standard of living,
while we create a low-pollution future.

Keep reading to see how to get your bit of the pork we’re spreading around. And don’t forget, this isn’t about changing your standard of living or way of life, it’s only 5%.

Popularity: 6% [?]

What’s going on at Telstra? The news today that the government has dumped them from tender for the National Broadband Network saw a 12% drop in its share value, talk of Telstra competing against the NBN with a mash of ADSL2+, NextG and their cable network, plus bravado from the Opposition with Nick Minchin blaming the government for Telstra’s poor behaviour (even though less than a month ago they were arguing against a Telstra bid).

With the all the roadblocks and stalling along the way, their 13 page submission (which only promised 90% coverage), and the missing statement on small to medium businesses, arguably it was about time the government called their bluff. Clearly Telstra have never been all that interested in getting the NBN underway – at least on the government’s terms.

I’m just wondering on whose advice they were acting when they decided to hold off on submitting the SMB plan. According to the AFR they ‘lodged’ it with Malleson’s prior to the November deadline but weren’t planning on handing it over to the government until December 4. Malleson’s wasn’t briefed on this aspect of the tender, so they can’t be blamed for the mishap.

Telstra argue that the plan could have been submitted at a later date. But the government have five separate legal briefs on their side – ranging from one from Corrs Chambers Westgarth to one from an SC and one from the Solicitor-General.

It does seem like a strange thing for Telstra to accidentally miss, so I can’t see how this could have been a mistake. Though given the other bidders did see the plan as compulsory by the November deadline it’s also a strange interpretation to make of the tender requirements. Especially given it was ready to go by the November deadline.

If the comments over at the ABC are anything to go, most lay people are siding with the government. They’ve had enough of Telstra and the wrangling over the NBN. And see this as another obstruction.

In the end, competition between the NBN builder and Telstra will probably be a good thing for consumers, providing a spur to lower prices and improve our options. Though for whoever wins the NBN tender, Telstra’s current stranglehold on the ‘last mile’ to our houses may prove to be a real issue. One thing is certain, though, this will keep some lawyers very busy for a few more years yet.

Popularity: 5% [?]

I can’t wait for A-Span. Please stream it live to the internet.

Popularity: 3% [?]