Peak hour traffic. An endless array of coloured helmets litter the streets, smoke coughing out of the exhaust of an old bus filled with tired faces, a frowning man with his forehead pasted against the dirty window stares out aimlessly at the hundreds of scooters honking their way through the busy street. Two young girls play on the footpath mimicking the others’ moves completely oblivious to the chaos surrounding them. It is easy to zone out, to shut the overwhelming unease that the thousands upon thousands can make you feel, like a person rescued by their imagination as they drift off into a day dream. Like me. I look out at the various clothing stores we crawl past on my way to the airport, thinking about what I need in my wardrobe for work to look a little more professional. Maybe a vintage midi-skirt, that pair of black jeans I have at home that would go well with the white shirt worn by the manikin, perhaps add some blue earrings and red shoes? Zone out from the fact that just before I caught this taxi I saw an elderly Australian man at the hotel lobby, his spotted, plump hands tickling the waist of a young Vietnamese girl as he commented about the bad service from staff, reminding me that underneath the millions in this Vietnamese megacity lies a disturbing reality of sex tourism that is causally linked to sexual exploitation. His yellow stained teeth and hardened belly impregnated by the constant consumption of alcohol that protrudes out and over the belt of his pants sends both shivers down my spine and a desire to kick him and protectively whisk her away from his dishonourable nature. Read More
The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are both introduced with articles on the right to self-determination. The principle of self-determination as jus cogens or an indisputable norm in international law nevertheless remains ambiguous, particularly relating to the legality behind the principle within the context of contemporary international life. The development of the principle was initially intended on overcoming the human rights impact colonialism had on those subjected to its authority in addition to the impact of decolonisation and post-colonialism had to international stability, economic relations and security as clearly stated in General Assembly Resolution 1514. What is the relationship or distinction between State and Government and does the state itself possess the qualifications as embodied by the Montevideo Convention on the Rights and Duties of States if indeed such qualifications epitomise a universal model of statehood and autonomy? This intricacy is further debilitated when entrenched with ideological discourse as a tool to construct hegemonic regimes rather than adhering to the constitutive conditions within international public law. This complexity is undoubtedly exposed with the annexation of Crimea [territory of the Ukraine] by Russian authorities, undermining the regulations of the United Nations Charter and of jus ad bellum or the criteria that determines the legality of warfare and the use of force, along with the prohibitions and the application of self-determination contained by the authority of international law. From the ousting of Viktor Yanukovych in Ukraine, to the referendum in Crimea that seemingly found the majority of the population in favour of becoming subjects of Russia, to the eventual deployment of Russian military personnel and annexation of the region with the intent of protecting its subjects from pro-Ukrainian extremists, is there a breach of Russia’ international obligations or is there credibility that can be considered legally tenable? It is the intention of this blog post on this gorgeous albeit cold Sunday afternoon to focus on the situation in Crimea by ascertaining Russia’ legal obligations regarding territorial integrity along with use of force, utilising a comparative approach on Kosovo and the Former Yugoslavia to ascertain the meaning of self-determination in international public law.
The principle of self-determination in international law embodies various doctrines such as sovereignty, statehood, territorial integrity and a number of other principles that negotiate and regulate the practice of international relations between existing and emerging nation-states. The onslaught of the first half of the twentieth century necessitated international corporation to prevent any repetition of violence, annexation or conquests and thus the development of the United Nations as an international body to deliver such measures and regulations was established. Notwithstanding the original and albeit failed attempt to institute the conditions that encourage peaceful, secure relations through the League of Nations, the United Nations with its principle organs has successfully delegated compulsory resolutions with the intent of managing and recommending international peace and cooperation. The problem of effectiveness of enforcing international law, however, remains questionable though enforcement mechanisms that negotiate sustainable processes or sanctions to safeguard human rights principles that encourage changes to domestic laws and other initiatives that bind international law into constitutive characteristics and customary principles is gaining strength. “Nevertheless, there remains vast domains in which the central enforcement of international law is largely non-existent or, at best, sporadic.” A clear example of this failure can be seen with the collapse of Yugoslavia during the last decade of the twentieth century, whereby notoriety of the UN Peacekeepers failing to protect the safe areas of Srebrenica ultimately led to the massacre of thousands of Bosniak boys and men.
The transition of the former Yugoslavia – contained by six socialist republics and two autonomous provinces of Kosovo and Vojvodina – has since exposed the miscarriage of international organisations to manage adequate responses to emergency situations, becoming the stimulus to modify and enhance the mechanisms that define and regulate the substantive criteria of the principle of self-determination and the conditions that define statehood. One particular aspect of this relies on the concept of territorial integrity and the modalities that outline the legal characteristics between dissolution and succession. According to the Montevideo Convention on the Rights and Duties of States 1933, a treaty that attempts to elucidate the general requirements within customary international law vis-à-vis statehood – the norms and exceptions of what frameworks self-determination, sovereignty and statehood – purports that a state as a person of international law should possess the qualification of a defined territory. “[A] state is defined as an entity with a defined territory and a permanent population under the control of its own government, which as the capacity to engage in diplomatic relations with other states.” Territorial integrity is contained in Article 2(4) of the UN Charter along with Principle IV (Territorial Integrity of States) of the Helsinki Final Act (1975) along with a number of bi- and multilateral agreements that declares duties including non-recognition of territorial acquisitions or special advantages obtained by force. Recognition as a criteria for statehood, the latter being the “plenary competence to perform acts, make treaties, and so on, in the international sphere,” that is sovereignty within a defined territory is legitimate when founded on the evidential criteria as inferred within international law. Northern Cyprus, for instance, is recognised by the United Nations as territory under occupation and an infringement of Cypriot sovereignty and conversely, the controversy regarding the unilateral declaration of independence of Kosovo from Serbia has raised a plethora of questions as to the legal precedent it has set particularly for the criteria of self-determination and de-jure recognition.
The lack of clarity regarding self-determination and the UN Charter invoked the Council of the European Union to establish an Arbitration Committee with Robert Batinter as president to answer pressing legal questions on subjects of concern related to the situation and ethnic violence advancing in Yugoslavia at the time, namely to be a source of guidelines vis-à-vis the establishment of new States in Europe. Opinions that were put forward to the Commission following an initial request made by Lord Carrington on the subject of secession on the Social Federative Republic of Yugoslavia, for which the Commission concluded that Yugoslavia was in the process of dissolution. This led to two vital opinions – for the intention of this subject – namely that of self-determination and the subject of borders. The determination of boundaries during the dissolution of the former Yugoslavia found the committee purporting through Opinion No. 3 of whether internal boundaries within the Former Yugoslavia are to be regarded as borders in public international law, the Commission responded purporting that whilst the external borders remained within the international principle of uti possidetis pursuant to the UN Charter and the Helsinki Accords – the latter being the inviolability of national borders vis-à-vis territorial integrity – internal borders were vindicated by the Constitution of the Socialist Federal Republic of Yugoslavia 1974. “Article 5 requires the consent of all republics and provinces before the borders of Yugoslavia can be altered,” which, during a period of conflict and dissolution is complex. Jurisdictionally, the consequences of the opinions by the Arbitration Committee proved a failure to ascertain the ultimate consequences the subject of international borders along nationalist or ideological can have to the security and safety of minorities. According to Peter Ragan, on closer inspection particularly following Opinion 11 of the Reports the Badinter Borders Principle should have been flexible enough to accommodate the impulse for secession rooted in ideological grounds and therefore more sophisticated measures could have prevented the likelihood of ethnic violence considering the lack of national homogeneity.
“The case of a multinational unit within a federation in which a majority national group resolves that the federal unit will secede, recognition of that unit within existing federal borders is, on the evidence of the secessions and recognition of Croatia and Bosnia-Hercegovina, likely to facilitate violent ‘ethnic cleansing’. The result will be either a nationally homogeneous state, or a de facto partition of the state along national lines. Croatia serves as an example of the former and Bosnia-Hercegovina is an example of the latter. The consequences of applying the Badinter Borders Principle were disastrous for the SFRY.”
It is perhaps essential to comparatively analyse ‘remedial secession’ under international law and its similarities or differences with the right to self-determination, namely the challenge of territorial integrity and the fragmentation of existing States vis-à-vis minority groups or peoples exercising their right to self-determination. International customary law on territorial integrity is reflected in the UN Charter however GA Res 1541/1960, whilst elucidating outcomes relating to self-determination purported that integration with another state is a rightful part of the application of self-determination. “Secession is the process by which a particular group seeks to separate itself from the State to which it belongs.” Accordingly, Crimean and Russian authorities allege themselves legally justified for claiming the right to secession following the referendum that found the majority voting in favour of becoming subject to Russian federal authority whilst the international community view it as an “illegal annexation that followed Russia’s use of force in contravention of international law.” International case law confirms that an adequate application of the principle of self-determination requires a democratic plebiscite or referendum. Nevertheless, according to domestic Ukrainian law, the referendum held in Crimea was illegal; that whilst the autonomous status of Crimea provides administrative independence and the capacity to hold referendums but only so related to domestic matters. The Constitution of Ukraine clearly states that territory of Ukraine “within its present border is indivisible and inviolable” with Crimea an inseparable part or constituent. Thus, a legal referendum would require a plebiscite involving all of Ukrainian territory, including Ukraine, and not just Crimea. In addition, regulations on how a referendum is to be held, particularly relating to the use of force whereby the presence of Russian military and control of public infrastructure during the plebiscite along with the language or wording of the question that ensures clarity to answer a mere ‘yes’ or ‘no’ was not correctly adhered to, particularly since the referendum asked two questions in breach of Venice Commission’s Code of Good Practice.
I am not sure how you are supposed to answer ‘yes’ or ‘no’ to the following?
- Are you in favour of the Autonomous Republic of Crimea reuniting with Russia as a constituent part of the Russian Federation? or
- Are you in favour of restoring the Constitution of the Republic of Crimea of 1992 and of Crimea’s status as part of Ukraine?”
The Russian authorities, in an attempt to justify the occupation of Crimea, claim the declaration of independence by Kosovo has set a legal precedent, confirmed during the Crimean proclamation of independence from the Ukraine in 2014, whereby “Putin referred to numerous Western states, which had recognised Kosovo’s right to self-determination… Putin presented a moral argument claiming that the same rights could not be denied to the people of Crimea.” It is true that the International Court of Justice decision pertaining to Kosovo failed to adequately address the question of secession and the consequences of the declaration of independence from Serbia instead “limited the scope of its opinion to the question of whether the declaration as such violated international law.” Many countries including Spain decidedly chose to not recognise Kosovo since it was clear that there existed a failure to reach an agreement followed by a U.N. Security Council resolution, which is a requirement for secession. Nevertheless, the ICJ clearly outlined the required processes vis-à-vis the legality and practice of independence with regards to international law. Acting Minister for Foreign Affairs of Ukraine Andrii Deshchytsia introduced a draft resolution recounting the referendum held in Crimea along with territorial integrity, whereby the referendum was officially declared by the United Nations to be invalid. The Declaration on Principles of International Law concerning Friendly Relations and Cooperation claims that “territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter.”
Historically, Crimea is known to be the hub of the White Army [anti-Bolshevik] during the Russian Revolution, where it retreated under the leadership of General Baron Peter Wrangel with the intent on developing a counteroffensive to defeat the onslaught of the Red Army [Bolsheviks] in 1920; by 1921 following orders by Vladimir Lenin, tens of thousands of adherents of the White Movement that failed to escape Crimea to Istanbul or Europe were summarily executed without trial in what became known as the Red Terror. During this period, the Soviet government created Crimean Autonomous Soviet Socialist Republic (ASSR) and additionally promoted the national identity of the indigenous Crimean Tatars as they had served the Red Army and played an role in their victory. This was swiftly reversed during the Stalinist era that ordered the mass deportation of the Crimean Tatars among other nationalities from the country to labour camps for allegedly collaborating with the German Nazis, whereby during World War Two the Nazi regime successfully captured the region of Sevastopol until 1945, where the Soviet Union reclaimed and transferred it as the Crimean Region of the USSR from the original ASSR and downgrading it to an administrative division or oblast.
By 1954, however, the Soviet Union under the leadership of Nikita Khrushchev issued a decree to transfer Crimea to the then Soviet Ukraine and legalised by the USSR Parliament, claiming that territorial proximity along with a moral gesture to celebrate strong cultural ties purposed the transfer. “Article 77 of the 1978 Ukrainian SSR Constitution placed the Crimea and the two cities of Sevastopol and Kyiv under Soviet Ukrainian Republican jurisdiction.” Notwithstanding any alleged political machinations by Khrushchev at the time that ultimately resulted in the Crimean transfer, the intention was to normalise and promote friendly relations analogous to the principles of international law in accordance with the Charter of the United Nations. The transfer was legally instituted in the then USSR Parliament despite allegations – as seen in the Crimean speech by Vladimir Putin in 2014 – that the circumstance determining the transfer was a personal initiative or mere formality rather than legally pertinent. “Any allegations that the transfer of the Crimean peninsula to the Ukrainian SSR was conducted in breach of the constitutional law of the USSR appear to be baseless after a study of the legal procedures followed in 1954.” Russia has argued that the transfer itself was illegitimate not simply relating to the city of Sevastopol that it claims has since 1948 never been part of the Crimean region, but namely that it defied the USSR constitution and thus the transfer remains null and void. The attempt to determine a violation of legal procedures as applied by the Presidium of the Supreme Council in the Russian SFSR that approved the transfer of Crimea is substantiated by the view that the Presidium– consisting of 27 members and the highest authority at the time – only received 13 votes. “The Supreme Council did approve the transfer by unanimous vote, but it did so without a quorum present,” however the other 14 voters were merely absent and thus no procedural breach occurred. Thus the amendments to Articles 22 and 23 of the Constitution of the USSR whereby the Crimean region was deleted from the former article with further amendments to ensure full jurisdiction of Crimea by the Ukraine remains legal.
The attacks against the legitimacy of the transfer of Crimea to Ukraine appear to be a smokescreen in an attempt to justify the legality of the occupation. This occupation was many years in the making and the internal conflicts within Ukraine established a chain of events that found both Crimean and Russian authorities encourage and eventually hold a referendum fashioned with problems that determined whether Crimean territory would be absorbed by Russia. Prior to the referendum, there were doubts as to the influence of Russia on Ukrainian political affairs, with increased tension following former president Viktor Yanukovych suspending original plans to sign an EU trade agreement. “Ukrainian president Viktor Yanukovych, who was due to formally sign his country’s agreement with the EU, had a last minute change of heart.” In addition, the response to peaceful pro-EU protests held at Independence Square – known as the Euromaiden – in Kiev, whereby riot police attacked protestors leading to mass demonstrations throughout the country only worsened when parliament overstepped its legislative powers by changing the laws of association. The pejorative of the anti-protest laws was to restrict freedoms of association and speech that only increased the tension of protestors, leading to several deaths and street clashes with police and ultimately forcing pro-Russian Prime Minister Mykola Azarov to resign following comments labelling the actions of protestors as ‘Nazi’ behaviour. Regarding the latter, the suspicions of Ukrainian civil society was embellished earlier with developments of a language policy that attempted to change laws making Russian the second official language – the law later abolished – with comments from Azarov claiming Ukrainian is a ‘little Russian language’ that merely sparked controversy particularly to where his loyalty lied.
The subject of self-determination in international law is wrought with complications, primarily because of its incredibly close relationship with politics. Whilst there remains no universally accepted definition of statehood, the International Law Commission did attempt to codify the theory of recognition vis-à-vis statehood, namely: “The political existence of the State is independent of its recognition by other States. Even before it has been recognized, the State has the right to defend its integrity and independence, to provide for its preservation and prosperity, and, consequently, to organize itself as it sees fit, to legislate in regard to its interests, to administer its services and to determine the jurisdiction and competence of its courts of justice.” This broad draft proposal was rejected as it was grounded in ambiguity that it could in the context of international law contain political repercussions. The dichotomy between constitutive and declaratory approaches, namely that of recognition or that of meeting the legal criteria for statehood, only adds to the complication. It is clear that those territories experiencing decolonisation contain challenges particularly related to self-determination, with cultural divides and unstable political systems [it has been noted that democracy is not a static event but a political process that is developed over a period of time] confirming that a salient transition to independence is inhibited. The Declaration on the Granting of Independence to Colonial Countries and Peoples itself proved conscious of the conditions that the process of civic liberation could threaten peace; “[a] ware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitute a serious threat to world peace.”
I find it useful ending this post with:
“Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”
 “Convinced that the continued existence of colonialism prevents the development of international economic cooperation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace.” UNGA Res 1541/ 1960 (15 Dec 1960)
 See UN Charter Art 2, and Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 225, 25 UN GAOR (1883rd mtg)
 Franz Cede, Lilly Sucharipa-Behrmann, The United Nations: Law and Practice, Martinus Nijhoff Publishers, (2001) 5
 Donald Earl Childress, The Role of Ethics in International Law, Cambridge University Press (2011) 57
 United States. Congress. House. Committee on International Relations. Subcommittee on International Operations and Human Rights, The betrayal of Srebrenica: why did the massacre happen? Will it happen again? Hearing before the Subcommittee on International Operations and Human Rights of the Committee on International Relations, House of Representatives, One Hundred Fifth Congress, second session, Volume 4 (1998)
 Marie-Janine Calic, Dietmar Neutatz, Julia Obertreis, The Crisis of Socialist Modernity: The Soviet Union and Yugoslavia in the 1970s, Vandenhoeck & Ruprecht (2011) 135
 Article 1
 Mario Silva, State Legitimacy and Failure in International Law, Martinus Nijhoff Publishers, (2014) 15
 “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
 Helsinki Final Act (1975), Part 1 (a); also see Principle III (Inviolability of Frontiers).
 Christian Marxsen, “The Crimea Crisis: An International Law Perspective”, ZaöRV 74 (2014), 367-391
 Linda J Pike, Encyclopedia of Disputes [Installment 10], Elsevier, (2014) 470
 James R Crawford, The Creation of States in International Law (2nd Edition)
 John Quigley. The Statehood of Palestine: International Law in the Middle East Conflict. Cambridge University Press (2010) 164.
 What became known as the Badinter Arbitration Committee, in 1991.
 Council of Ministers, EU, Joint Declaration on Yugoslavia, 27 August 1991
 Opinion No. 1 of the Arbitration Commission of the Peace Conference on Yugoslavia (1992) 31 ILM 1494
 Final Act of the Helsinki Conference on Security and Co-operation in Europe: Questions Relating to Security in Europe — Declaration on Principles Guiding Relations between Participating States, 1 August 1975, 14 ILM 1292, principle 4 (‘Final Act of Helsinki’).
 Jure Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice, Bloomsbury Publishing (2013)
 Peter Radan, “Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission”  MelbULawRw 3; (2000) 24(1) Melbourne University Law Review 50
 Richard F. Iglar, The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia’s and Croatia’s Right to Secede, 15 B.C. Int’l & Comp. L. Rev. 213 (1992)
 Opinion No 11 of the Arbitration Commission of the Peace Conference on Yugoslavia, 16 July 1993, 32 ILM 1587, 1588 (‘Opinion No 11’).
 Peter Radan, supra
 United Nations Charter, supra
 Nikolaos Ioannidis, “Constitutional Prohibition of Secession under the Prism of International Law: The Cases of Kosovo, Crimea, and Cyprus”, Edinburgh Student Law Review, Vol. 2, Issue 4 (2015)
 J Crawford, “State practice and international law in relation to secession’ (1998) 69(1) British Yearbook of International Law 85
 Kristina Daugirdas and Julian Davis Mortenson, Contemporary Practice of the United States Relating to International Law, The American Journal of International Law, Vol. 108, No. 4 (October 2014), pp.783-842
 Nikolaos A. Ioannidis*see Saar and Scotland.
 Article two constitution, Article 134
 Venice Commission’s Code of Good Practice
 Janne Haaland Matlary, Tormod Heier, Ukraine and Beyond: Russia’s Strategic Security Challenge to Europe, Springer (2016) 226
 Christian Marxsen, The Crimea Crisis: An International Law Perspective. ZaöRV 74 (2014), 367-391 Also see, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ Reports, 425 et seq.
 GA/11493 100-11-58, A/68/L.39, Territorial Integrity of Ukraine
 By Eduard Martynovich Dune, Diane Koenker, Stephen Anthony Smith, Notes of a Red Guard, University of Illinois Press (1993) 262
 M. Landa, Maximilian Voloshin’s Poetic Legacy and the Post-Soviet Russian Identity, Springer, (2015)
 R. J. Rummel, Lethal Politics: Soviet Genocides and Mass Murders Since 1917, Transaction Publishers (1996) 38
 Brian Glyn Williams, The Crimean Tatars: The Diaspora Experience and the Forging of a Nation, BRILL, (2001)
 Agnia Grigas, Beyond Crimea: The New Russian Empire, Yale University Press, (2016) 62
 Paul Robert Magocsi, History of Ukraine – 2nd, Revised Edition: The Land and Its Peoples, University of Toronto Press, (2010)
 Matteo Nicolini, Francesco Palermo, Enrico Milano, Law, Territory and Conflict Resolution: Law as a Problem and Law as a Solution, BRILL (2016) 160
 Op. Cit., Ferran Requejo, Nagel Klaus-Jürgen
 Roman Solchanyk, Ukraine and Russia: The Post-Soviet Transition, Rowman & Littlefield (2001) 165
 Ferran Requejo, Nagel Klaus-Jürgen, Federalism Beyond Federations: Asymmetry and Processes of Resymmetrisation in Europe, Routledge (2016) 179
 See GA Res 2625
 Address by President of the Russian Federation, Vladimir Putin addressed State Duma deputies, Federation Council members, heads of Russian regions and civil society representatives in the Kremlin [March 18, 2014], The Kremlin, Moscow.
 Oleksandr Zadorozhnii, Russian doctrine of international law after the annexation of Crimea: Monograph, Yuri Marchenko, 84
 Until recently, Article 65 of the Constitution of Russian Federation had confirmed the jurisdiction of Sevastopol to the Ukraine and therefore the Codes in Ukrainian law were applied to Sevastopol. Also see Article 133 of the Constitution of Ukraine .
 Op. Cit., Matteo Nicolini, Francesco Palermo, Enrico Milano, 146
 Marin Katusa, The Colder War: How the Global Energy Trade Slipped from America’s Grasp, John Wiley & Sons (2014) 78
 Oleksandr Zadorozhnii, Russian doctrine of international law after the annexation of Crimea: Monograph, Yuri Marchenko, 84
 Matteo Nicolini, Francesco Palermo, Enrico Milano, Law, Territory and Conflict Resolution: Law as a Problem and Law as a Solution, BRILL (2016) 151
 Dick Leonard, Robert Taylor, The Routledge Guide to the European Union
 Gideon Rose, Crisis in Ukraine, Foreign Affairs (2014) 52
 Elizabeth Wood, William Pomeranz, E. Merry, Maxim Trudolyubov, Roots of Russia’s War in Ukraine, Columbia University Press (2015) 18
 J. L. Black, Michael Johns, The Return of the Cold War: Ukraine, The West and Russia, Routledge, (2016) 240
 Op. Cit., Crisis in Ukraine
 Michael Moser, Language Policy and Discourse on Languages in Ukraine Under President Viktor Yanukovych, Columbia University Press, (2013) 378
 ILC, Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States, (Memorandum submitted by the Secretary-General) A/CN.4/2, 15 December 1948, 55–6.
 See Gero Erdmann, Marianne Kneuer, Regression of Democracy?, Springer Science & Business Media, (2013) 37
 GA Resolution 1514
 Declaration on the Granting of Independence to Colonial Countries and Peoples Adopted by General Assembly resolution 1514 (XV) of 14 December 1960
As of March 2017, key figures from the United Nations Office for the Coordination of Humanitarian Affairs estimates that more than 5 million refugees have fled Syria, with 6.3 million internally displaced and a total of over 13 million in need of urgent humanitarian assistance. Turkey has accepted a large number of the refugees, hosting over 2.8 million refugees, comparably with Europe where less than 900,000 applicants since 2011 have applied for asylum, data retrieved from 37 European countries that provide UNHCR with monthly figures. Additionally, countries such as Lebanon has taken in over 1 million and over 650,000 have fled to Jordan, two countries that have not signed the United Nations Convention Relating to the Status of Refugees adopted in 1951 and further still, the 1967 Protocol Relating to the Status of Refugees that extended the former boundaries that were initially limited to Europe so as to enable universal coverage. Article 1 of the 1951 Convention nevertheless transformed the international status and human rights of refugees by providing a single definition:
“As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Like many instruments that developed at the time, the convention strengthened principles particularly relating to the fundamental rights of refugees such as non-discrimination and particularly non-refoulement, the latter where asylum seekers are forced to return back to a country where they there may be a strong likelihood of experiencing persecution in a number of various ways. It also reinforced the universality of international human rights law without exception to State provisions as well as prejudice toward race, religion or country of origin.
Nevertheless, there have been a number of concerns relating to the effectiveness of the Refugee Convention and its Protocol in managing the influx of refugees and demonstrated by the huge number of asylum seekers displaced from the Syrian War. Some of these failures have enabled discussions on reforming the instruments to deal with the crises of asylum seekers to suit the current economic and social conditions and to satisfactorily manage a system fraught with problems. One of these includes the convention’ failure to ameliorate new global changes to social, demographic and national environments that render it ineffective to adequately deal with the logistical, financial and humanitarian aspects of the influx of refugees. While taking a rights-based approach, both the refugee convention and the protocol fail to address the complexities of man-made catastrophes and the unique regional differences that causally play a role in these catastrophes. As such, it has been argued that a holistic approach is required to enable better considerations of regional and cultural attitudes that enhance a decisive clarity of the causes in order to measure, prevent and manage man-made disasters. It is clear, for instance, the dynamics of ISIS in the Middle East, the ramifications of the gulf-war, oil and water politics and the post-colonial economic hardships that have enabled destabilising political regimes demonstrate the necessity for a holistic approach specific to the Middle East.
In order to compare the possible effectiveness of a holistic approach to the concerns raised by the recent influx of Syrian refugees, development of a number of additional instruments that attempt to define the legal confusion on the status of a refugee in other regions have been adopted. In 1999, the Tampere Council – a special European Council meeting held in Tampere – attempted to improve changes to immigration as well as consolidate foreign and security policies through the opportunities that the Treaty of Amsterdam afforded. The Treaty of Amsterdam altered the former Treaty of Maastricht [where the development of supranational institutions such as the European Court of Justice was initiated] and includes a number of protocols and declarations that empowered the European Union to develop legislation that would effectively coordinate policies and procedures more effectively, along with strategies that would strengthen intergovernmental cooperation subject to protecting its own interests. Since then, there has been an ongoing development to improve legislative frameworks that recognise, for instance, the importance of the financial output during an influx of those seeking asylum and thus established the European Refugee Fund [ERF] that administers financial support to member countries to manage and resettle refugees and displaced persons.
Syrian children who have fled into Jordan and Lebanon are being illegally exploited and due to their status are forced into labour rather than schools; despite countries like Jordan being a signatory to the International Convention on the Rights of the Child.
Representatives that drafted the 1951 Convention also desired signatories to exceed the demands set out in the convention, thus it was not long after that the European Union developed The Qualification Directive. This followed the Temporary Protection Directive that was developed due to the poor management vis-à-vis violence in the former Yugoslavia that resulted in large numbers of displaced persons in the region and thus, under exceptional circumstances such as war, became a process to provide temporary protection. It sought to exemplify minimum standards for refugees, stateless persons or third-country nationals that required international protection and develop a common policy on asylum by advancing the Common European Asylum System Agency (EASO), as well as facilitate better cooperation between member states by improving protection and “affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.” The Common European Asylum System guaranteed standards of protection where asylum seekers are treated fairly and with dignity. The Qualification Directive established a criterion that would qualify the minimum standards that confirms the status of a refugee and thus regulating the process that determines the granting of international protection. An act of persecution must be sufficiently serious that would violate human rights including act of physical, sexual and psychological or any disproportionate legal prosecution that would result in discriminatory prosecution.
And yet, with what appears to be a small number of refugees from Syria seeking asylum in Europe comparably to other States, none of these instruments have been put to use, on the contrary, it appears that there may either be a hesitation as the limited timeframe for providing asylum for a maximum of up to two years to Syrian refugees is not realistic in relation to the ongoing length of the war, or there is a hidden exclusivity to these instruments limited to the possibility of use in the event of a European catastrophe. UN High Commissioner for Refugees determined that the needs of the refugees require hefty financial support and pledged nine billion at the conference in London. While financial support would enable countries experiencing an influx of refugees to manage the economic strain, it is clear that the ERF may still struggle to manage, whereby OCHA estimates that a total of $3.4billion dollars is required to fund a humanitarian response plan for the life-saving assistance to 13 million Syrians in need of urgent humanitarian support, funding that has only reached 11.3% of this required target.
Other failures also include no guarantee that unaccompanied children will have access to legal representation, along with the absence of provisions that deal with Internally Displaced Persons (IDP), knowing that within in Syria there are 6.3million IDP’s that require urgent assistance. That is, the Convention does not “apply to those refugees who have a status equivalent to nationals in their country of asylum.” It has been argued that the Convention should be reformulated to address these issues however the potential problem to removing and establishing a new convention is that it would still fail to address continuous regional changes that may impact on the development of even more disputes. For instance, the United Nations Committee on the Rights of the Child stated that States “shall not return to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child,” and while they clarified the responsibilities of States to ensure how the assessment of this risk should be conducted, this risk is nevertheless open to interpretation. For instance, Suresh v Canada questioned procedural fairness whereby even if a refugee is at risk being tortured, they can be deported to their homeland if they conversely a serious risk to Canadian security. Procedural fairness without the inclusion of assessing unaccompanied minors or other vulnerable groups including women who are pregnant or survivors of serious trauma that have developed serious mental health issues may lead to prejudicial outcomes.
Other global and regional instruments enacted to ensure adequate support for asylum seekers are effectively taking place can act as a catalyst to developing changes to the Middle East. In Africa, for instance, where a number of political and social instabilities have resulted in an influx of refugees, established the Organisation of African Unity and the Convention Governing the Specific Aspects of Refugee Problems in Africa that attempted to ameliorate a stronger understanding of the legal or political aspects to refugee protection but specific to Africa. Together with the Cartagena Declaration on Refugees in Latin-American, the protection of refugees within the instruments were extended to include a more demographically and culturally appropriate – thus holistic – approach to regional affairs that the Convention and its Protocol were unable to adequately compliment, thus enabling better responses to mass displacement. For instance, while the convention and the protocol are rights-based instruments, OAU Convention seeks to address humanitarian responses to mass influx of refugees by enabling its member States to legislate domestically in order to address and protect all those seeking asylum. It additionally clarified the differences between groups of refugees as a result of a disaster with individual refugees seeking protection.
The United Nations estimates Lebanon is housing 1.14 million Syrian refugees and not being party to the Refugee Convention and Protocol, Lebanese domestic laws that purport any person without legal documentation within its boundaries are considered illegal have left Syrian refugees without legal status. In fact, while Lebanon is constitutionally bound by customary law and other human rights obligations being a signatory to a number of human rights conventions, not becoming party to the 1951 Convention or its following Protocol has left only a Memorandum of Understanding (MOU) with the UNHCR as the only instrument to assist refugees coming from Syria. UNHCR has noted that even with the MOU protection remains notoriously difficult. Domestic legislation in Lebanon governing refugees is extremely limited whereby Law of 1962 regulating the Entry and Stay of Foreigners in Lebanon and their Exit from the Country fails to provide legal protection and other important human rights services for Syrian refugees. Unlike OAU Convention that treats individual and group assessments based on contingent situations such as fleeing war or other man made violence, the provisions of the 1962 law treat individual cases. “Any foreigners who is subject of pursuit or has been convicted for a political crime by a non-Lebanese authority or whose life or freedom is threatened because of political considerations may ask for political asylum.” As such, Syrian refugees in Lebanon are without any legal protection and according to Article 32 of the 1962 Law, can be fined and even imprisoned as illegal entrants. While the MOU signed between Lebanon and UNCHR enables the latter to ensure temporary residence permits are provided as a solution – albeit temporary – to the problem with Syrian refugees, the limited time (of a maximum of nine months) may not be estimative of the realistic timeframes necessary to support them pending the continued violence in Syria. Clarification of renewing residency permits remains ambiguous and any rights including seeking employment are extremely limited, if not non-existent and leaving refugees in an incredibly vulnerable position. This was further delayed when the Lebanese government requested that UNHCR suspend registrations of Syrian refugees in 2015.
The image below exposes the horror of what happened to almost 75 Syrian women who fled the war and were tortured and forced into sexual slavery within ‘Chez Maurice’ in the Lebanese town of Jounieh. Notwithstanding the horrible men involved in this disgusting trafficking incident, it also shows the failure of the government to protect asylum seekers and why it is so important.
While Lebanon has recently enacted changes to domestic legislation amid continued discussions relating to the status of refugees, in particular waiving fees for Syrian refugees fleeing the war [a charge of US$200 that was introduced in 2015], this unfortunately excludes a large number who were unable to register with UNHCR, almost half a million. The impact of these failures in Lebanon can have devastating effects to the rights and protection of Syrian refugees since by having no legal status and being at risk of imprisonment, movements become restricted and in order to survive many refugees are becoming victims to exploitation. According to the final report on Syrian refugees in Lebanon by Freedom Fund, incidence of slavery and human trafficking is growing including child labour and marriage, sexual exploitation and forced labour that clearly exemplifies why ratification of the 1951 Convention and its 1967 Protocol is necessary. In addition, children from families without residency permits in Lebanon are unable to obtain a formal education as well as access to healthcare for families including pregnant women whose children are at risk of statelessness. It is also clear that existing regulatory frameworks are modified along with domestic legislation protecting Syrian refugees from harm including exploitation and trafficking is afforded. Although Lebanon is constitutionally bound by the customary law principle of non-refoulement, recent talks between Lebanon and the Syrian opposition to return those seeking asylum – whereby Hezbollah stated that they have been mediating the possible return of refugees from the Arsal border to the Qalamoun region in Syria – that begs the question of whether non- refoulement procedures are adequately adhered.
According to Amnesty International, while Jordan is hosting over 650,000 refugees, in mid-2016 it closed its borders that stranded over 75,000 Syrian refugees between the Syrian-Jordanian borders in the horrific al-Rukban and Hadalat refugee camps within desert conditions. This is not a problem with Jordan alone, whereby Human Rights Watch has also reported shootings against Syrian refugees attempting to enter the country at Turkish borders. Whilst citing security concerns amid threats from ISIS, the strain that Jordan has experienced economically due to the lack of international aid has pressured the government to regulate occupation that only Jordanian citizens are allowed to work in, forcing asylum seekers toward illegal working conditions. Jordan also signed an MOU with UNHCR that enabled recognition of refugee status for a duration of up to six to twelve months but consideration of the massive influx of Syrian refugees was not adequately deliberated as domestic law similarly observe a case-by-case basis. In addition to this, each of the individuals fleeing are required to have documentation, something that clearly may not always be possible considering the situation. Constitutionally, Jordan must adhere to international customary law on non-refoulment, where extradition of political refugees is prohibited.
With the surmounting difficulties along the borders of Lebanon and Jordan, the clarity and necessity of including internally displaced persons within the international framework becomes clear as millions of Syrian refugees are unable to flee. The United Nations– along with reaffirming – has called upon States such as Jordan and Lebanon to become party to the Convention. Regarding the problem of stranded refugees along the Jordanian-Syrian border, comparatively the OAU Convention explicitly reaffirms that in the even where a member state may find it difficult to continue granting asylum it will appeal to other Member States of the OAU to assist in supporting them. As such, the development of a similar regional instrument amongst Middle Eastern States that touch on relevant concerns specific to the demographics and culture would be an important step forward to strengthen a cohesive process for Syrian refugees to adequately manage man-made disasters as well as improve processes for countries such as Jordan and Lebanon to better protect asylum seekers. It will also ensure that compliance to the States’ ratification of the relevant instruments along with a complementarity between the regional and international refugee protection frameworks are adequately observed. Other improvements and regulations would be the consistent pressure to ensure Lebanon and Jordan ratify the 1951 Status of Refugees Convention and its 1967 Protocol, as well as honing down on better domestic legislation that will ensure legal protections are provided to refugees and asylum seekers. With stronger mutual cooperation in the Middle East, the distribution of services to victims of mad-made disasters specific to regional affairs may protect women and children from becoming victims of exploitation.
 Article 1 (a)(2) The Convention Relating to the Status of Refugees, 1951
 Ibid., Article 33(1)
 Qualification Directive 2004/83/EC
 Temporary Protection Directive 2001/55/EC
 Directive 2011/95/EU of the European Parliament and of the Council, 13 December 2011
 Supporting Syria & the Region Conference in London on 4th February, 2016
 Op. Cit., 1951 Refugee Convention
 General Comment No 6 – Treatment of unaccompanied and separated children outside their country of origin, UN Doc CRC/GC/2006/6 (2005)
 Suresh v Canada (Minister of Citizenship and Immigration),  1 S.C.R. 3
 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, September 10, 1969.
 Cartagena Declaration on Refugees, November 22, 1984.
 Section B of the preamble of the Lebanese Constitution, Lebanese Constitution (1926), as amended to 1995
 UNHCR Regional Office in Lebanon, Country Operations Plan 1 (2004)
 UNHCR, Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: The Republic of Lebanon 2 (Apr. 2010)
 Order No. 319 Regulating the Status of Foreign Nationals In Lebanon, Date of Entry into Force: August 2, 1962 (19620802)
 Ibid., Article 26.
 1962 Law, Pursuant to article 32 foreigners who enter Lebanon illegally can be imprisoned for one month to 3 years and/or fined.
 Human Rights Watch Country Report, Lebanon: https://www.hrw.org/world-report/2016/country-chapters/lebanon#4694c7
 Human Rights Watch, Lebanon: New Refugee Policy a Step Forward: Open the Door to Legal Status for All Syrian Refugees, February 14, 2017: https://www.hrw.org/news/2017/02/14/lebanon-new-refugee-policy-step-forward
 Freedom Fund, Struggling to Survive: Slavery and Exploitation of Syrian Refugees in Lebanon, http://freedomfund.org/wp-content/uploads/Lebanon-Report-FINAL-8April16.pdf
 List of Professions Not Allowed to Foreign Workers, Ministry of Labor, http://www.mol.gov.jo/Portals/ 0/Decisions/closed.pdf
 UNHCR Global Appeal 2013 Update: Jordan, UNHCR, http://www.unhcr.org/4ec231020.pdf
 Law No. 24 of 1973, art. 12, Al-Jarida Al-Rasmiyya, 16 June 1973, at 1112, http://www.lob.gov.jo/ui/laws/ search_no.jsp?year=1973&no=24 (official website of the Jordanian Council of Ministers)
 Declaration of States parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, Switzerland, 12-13 December 2001, UN Doc. HCR/MMSP/2001/09, 16 January 2002. The Declaration was welcomed by the UN General Assembly in resolution A/RES/57/187, para. 4, adopted on 18 December 2001.
 UNHCR, Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees (Submitted by the African Group and the Latin American Group)Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees (Submitted by the African Group and the Latin American Group) EC/1992/SCP/CRP.6 (6 April 1992)
Eastern philosophy has been of great interest to me. I resonate with the strict treatment of virtue where principles of righteousness, loyalty and moral strength are absolute and where cowardice and deceit are viewed as traits of the dishonourable. Martial arts is the physical symbol that applies the same austere practices, where practitioners often link the required physical strength to the same psychological characteristics necessary to lead a life of virtue. The Zhou Dynasty, a dynasty that stretched its lengthy arm in ancient China for over eight hundred years lived the great philosopher Confucius (551-479 BCE). During his life, a cohesive royal system of ancestral aristocrats controlling principalities under the rule of the Zhou monarchy gradually disintegrated into feudal rivalries for power between each of the states. Caught toward the end of the Spring and Autumn period (770-475 BCE) where the Eastern Zhou Period begun following the move of the capital east of China to Luoyang so as to adequately protect itself from possible invasion, small fiefdoms and nomadic tribes united forces with various states that gradually matured to onset the Warring States period (475-221 BCE) just following Confucius’ death. Confucius is said to have written Chūnqiū or the Spring and Autumn Annals that chronicled the vassal state of Lu now an area of the modern province of Shandong and the home of Confucius. It was also the oldest record mentioning techniques of hand-to-hand combat, or martial arts, utilised during the Spring and Autumn period likely because of continuous violence with minimal weaponry.
Confucian political and social ethics is clear by his commentary on civil society and ethical pluralism, strengthened by principals of harmony that reinforce ‘hard’ moral concepts including loyalty and honesty but balanced by a ‘soft’ humble wisdom. The Analects of Confucius, a compilation of teachings that reference the importance of cultivating and demonstrating moral and ethical education and behaviour and attributed to the philosopher also deliberates on the subject of war, moral refinement and the authority of rulers.
The Master said: “To lead the people to war without having taught them is to throw them away.”
While there exists controversy surrounding the historical accuracy of Sun Tzu as a military leader and strategist, it is no doubt that his treatise The Art of War became highly influential particularly throughout the Warring States period where the growth in numbers, the sophistication and the brutality of war became visibly ruthless and chaotic. Philosophers including Mencius and Xun Kuang turned their attention to the philosophy of law and legalism, on war and just war theories, and social and political education as the period was marked by intense battles. Both Sun Tzu and Confucius were said to have lived during the same period toward the end of the Spring and Autumn period. It is said by Sima Qian, a historian of the Han dynasty that wrote the Records of the Grand Historian that Sun Tzu was a general from the Wu province and commanded the great victory between the Wu army during the Battle of Boju, where numbers were significantly lower than the Chu army, but the accuracy of this is widely contested.
While the Art of War is certainly the most well known Chinese text on military strategy, it was canonised among other military doctrines during the Song Dynasty, entitled as the Seven Military Classics. Notwithstanding the tactical practices and other systematic components of warfare that embody strict commandment through lessons that deliberate victory or defeat, the Seven Military Classics is a historical illustration that exemplifies the influence of analytical ruminations on Chinese military science. The texts including The Art of War are T’ai Kung Liu-t’ao (Six Secret Teachings), Ssu-ma Fa, Wu-tzu, Wei Liao-tzu, and Huang Shih-kung San-lueh (Three Strategies). They broadly encompass a variety of warfare operations that attempt to understand the nature of war and strategies that include a variety of topics such as leadership, cavalry and infantry, as well as weaponry. For instance, the Six Secret Teachings attributed to T’ai Kung covers tactical advantages of employing disinformation and psychological manoeuvring through manipulation and deception that would enable victory without actual fighting.
The bloody wars during the Warring States Period and continued through the Imperial Era of China combined complex tactical strategies that innovated armament. It was a period where the sophistication of the instruments of war propelled by the continuous hegemonic struggles that elicited the continuous advancements of military equipment. Ancient China soon invented semi-automatic crossbows, multi-phase rockets, naval fortresses with catapults, and the use of gunpowder that bear a striking resemblance to modern lethal weaponry. And what would advanced lethal weaponry look like today? The Aero Vironment Nano Hummingbird is an unmanned aerial vehicle [UAV] and as an ornithopter drone appears like the bird in flight only it carries a video recorder that feeds back aerial information. This spybot has a wingspan of only sixteen centimetres. Further still, the Northrop Grumman X-47B UCAS-D (Unmanned Combat Air System Demonstrator) currently being tested by the US Navy is a lethal drone that has the capacity to work automatically, which changes naval aviation activities considerably. If a machine made autonomous decisions, who would be accountable for the deaths caused by it? With increasing technological advancements, automaton lethal weaponry and the utilisation of artificial intelligence for killing, questions about the scope of violence and how international humanitarian law will adapt to these sweeping changes has been raised a focus on weapons and tactical strategy since tens of thousands of people are being killed with no chance of even being remembered or buried. The United States since the Obama Administration increased its covert activities in several key states including Afghanistan, Pakistan, Somalia, Libya and Yemen utilising drone weaponry that has resulted in a huge number of civilian deaths, including women and children. The administration has failed to adequately answer how the numbers differentiate between sources and the scope of the strikes.
The territorial disputes and strategic rivalries continued in China well into the twentieth century, clearly accountable for the invasion of Tibet along with numerous campaigns in Korea, Vietnam, India and the Soviet Union. But a new strategy of warfare developed in the late 70’s that intended to win the war for economic power. These reforms began through the statesmanship of Deng Xiaoping that changed the staunchly critical China as a closed economy to one that opened the doors toward a global reach through foreign investments. As such, the China’s Gross Domestic Product (GDP) has steadily increased since then and the balance of power is now starting to shift in China’s favour, forecasted to increase and surpass that of the United States. This economic strategy was followed by changes to its military strategy, particularly visible when they witnessed the advances of US military power during the Gulf War, which displayed the advanced technology in modern warfare. As visible in China’s historical battles between warring states, strategic victories were possible when economic strength enabled advantages in military might and weaponry. Decisive changes to China’s economic approach matched with the growth and expenditure to their combat capability.
Disclosure on military matters in China remains well guarded and though difficult to ascertain the exact defence budget, in 2015 defence spending was at $146 billion. Though, they cannot hide the sheer size of the Peoples Liberation Army [PLA] whereby the active reserve personnel and perceived fighting strength is totalled at over 2.3 million in manpower. Tactical efforts to change China’s aviation capabilities is clear including very discomforting advances in weaponry such as the DF-ZF [formerly Wu-14] hypersonic glide vehicles that project missiles out of the Earths’ atmosphere and overcome defence shields before re-entering at much faster speeds. Other weapons include the Xian H-6 Bomber capable of long-range and anti-ship missiles and maritime powers through investments in cruisers such as the Type 055 Destroyer. This is amalgamated with a strengthening space program and the interest is certainly not scientific with satellites boosting radar and electronic capabilities that strengthen intelligence and counter-offensive navigation among other tactical advantages.
More than just weaponry, military strategy also includes a range of other factors including battle logistics, geographical values, and resources such as petroleum and nuclear power. This begins to raise questions about the recent changes between China-Russia relations and their steadfast position to support Iran and Syria. Improved relations particularly during the late 90’s between Jiang Zemin and Boris Yeltsin that developed corporation particularly around common geopolitical interests along with changes to improve offensive military technology through arms sales, clarifying that there is indeed an invisible war and one that would determine who the global superpower will be.
The Warring States period exposed China as a practitioner of merciless strategies for power and expansion, an adaptation that continues in contemporary Chinese politics as seen during the Warlords Period between 1916-1928 where bandits, cliques and militias plagued the country with wars until the People’s Republic of China (PRC) following the Chinese Revolution of 1949 unified the country under the leadership of Mao Zadong. The ruthlessness of the political system, brutality toward dissenting opinions, and authoritarian leadership is markedly influenced by the political history and cultural attitudes that has stretched for hundreds of years and defined by the philosophies in the Hundred Schools of Thought that continue to inspire the attitudes and social consciousness present until this day. China has an extensive population and resources that may ensure the continued management of economic growth despite the size of the country raises concerns of territorial claims. Though it is clear that the international community believe that China is far behind the military prowess of the United States with comparatively feeble technology… is it really?
“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away… If your enemy is secure at all points, be prepared for him. If he is in superior strength, evade him. If your opponent is temperamental, seek to irritate him. Pretend to be weak, that he may grow arrogant.”
― Sun Tzu, The Art of War
 Charlene Tan, Confucius (2014)
 13:30, The Analects of Confucius
 Jann Tibbetts, Fifty Great Military Leaders of All Time (2016)
 Sarah Foot, Chase F. Robinson, The Oxford History of Historical Writing: Volume 2: 400-1400 (2012)
 Ralph D. Sawyer and Mei-chün Sawyer, The Seven Military Classics of Ancient China (2007)
 Ralph D. Sawyer, D Sawyer One Hundred Unorthodox Strategies: Battle And Tactics Of Chinese Warfare
 See more information at the Bureau of Investigative Journalism https://www.google.com.au/search?tbm=bks&hl=en&q=obama+drone+killings#q=obama+drone+killings&hl=en
 M.Y.M. Kau, Susan H. Marsh, Michael Ying-mao Kau, China in the Era of Deng Xiaoping: A Decade of Reform: A Decade of Reform (2016)
 Michael Codner, Michael Clarke, A Question of Security: The British Defence Review in an Age of Austerity (2011)
 Anthony H. Cordesman, Steven Colley, Chinese Strategy and Military Modernization in 2015: A Comparative Analysis (2016)
 Jeanne Wilson, Strategic Partners: Russian-Chinese Relations in the Post-Soviet Era: Russian-Chinese Relations in the Post-Soviet Era (2015)
Business law is complex and international business law is even more convoluted. Definitions of terms such as ’employment’ itself is wholly ambiguous, thus making it difficult to ascertain what legal rights people have in the workplace both for employees and employers. Vicarious liability exposes this complexity. It is a common law principle that purports liability by an employer for the tortious acts of an employee delegated duties as requested and entrusted to act on their behalf. As a legal term, vicarious liability confirms that employers are thus responsible for negligible acts pertaining to discrimination and harassment that occur within the workplace by supervisors and management, individual or group employees, and agencies and contract workers with the ambiguity of the latter certainly exposing the complexity of the subject. It is complicated as an Australian legal doctrine primarily because of the absence of a clear and distinct definition vis-à-vis the various legislative formulations and the broad scope utilised by Australian federal, state and territory jurisdictions along with a culmination of common law interpretations. In addition to this complication, civil cases particularly pertaining to discrimination rarely reach the court due to the associated costs of such litigation and tend to be resolved prior through conciliation.
Employers must ensure that they have taken reasonable steps to demonstrate their commitment to the prevention of any form of discrimination and harassment as required by both Victorian and Federal legislation to prevent liability claims made against them, the liability itself used as a deterred to prevent human rights abuses. Whilst vicarious liability is customarily applied using judicial precedents rather than relying solely on legislation, in some cases particularly relating to sexual harassment the interaction with other provisions can effect and ultimately lead to an incongruous result, for instance in Jones v Tower Boot Co Ltd that exposes the necessary reach of vicarious liability – where an employee commits a serious act of sexual harassment though off-duty and thus appears that the employer is less likely to be liable as a consequence – in addition to claimants selecting one jurisdiction to reduce this probability of an absurd conclusion. The custom to utilise judicial precedents and thus apply the ‘Golden Rule’ of law, namely, to ensure that courts take a purposive statutory approach by appreciating the aim and purpose of the law and thus apply a fluid and flexible method favouring justice for the people, is in effect the reason for maintaining the broad and thus ambiguous definition of vicarious liability.
In order to initiate a better understanding of the subject, it is vital to establish an introduction on the scope of and interactions between legislations within the limitation of a non-exhaustive blog post, thus a brief account of anti-discrimination, human rights and industrial laws. Thus to begin, what exactly constitutes discrimination? In part two of the Equal Opportunity Act 2010 (Vic), discrimination is defined as, “direct or indirect discrimination on the basis of an attribute.” Direct discrimination is clearly purposed to treat an individual discriminately based on any of the attributes, whilst indirect discrimination occurs when a condition, practice or any such imposition that is likely to result or have an effect on an individual that disadvantages them due to an attribute. These attributes include age, sex, disability, race and religion amongst others. Discrimination can go even further, such as an individual’ past or intellectual capacity [too smart, not smart enough] or other physical attributes etc &c. As employers themselves must ensure that they do not breach their obligations as set by the law and reiterating the previously mentioned Golden Rule, namely that the law has be established to protect the rights of citizens and democratic principles in general, the scope of vicarious liability sits under the umbrella of human rights.
Generally, the scope of industrial laws fails to afford the protections offered by established anti-discrimination laws. In Victoria, this would include the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic) along with the Equal Opportunity Act 2010 (Vic). In addition, a complainant must select which jurisdiction – namely State or Federal – they wish to pursue the proceedings. Under section twelve of the Age Discrimination Act 2004 (Cth) it states that a person is not entitled to institute a proceeding if a law relating to discrimination is dealt with by the State of Territory, thus a complaint can be lodged at the statutory commission within their state jurisdiction; however if so, they cannot proceed the complaint to federal anti-discrimination laws and jurisdiction. What that means is that if a complainant initiates a case under Victorian anti-discrimination law, they are not permitted to withdraw and apply for a recourse under Commonwealth anti-discrimination laws. Similar requirements are stated in other legislations, thus confirming that if someone has already made a complaint under Victorian legislation is therefore unable to commence proceedings at federal level. Nevertheless, there are differences between state and federal anti-discrimination laws – whilst minor – can impact on the application and operation of the law, as a consequence the complainant can initiate and select which jurisdiction they would prefer the proceedings to fall under (dependant on the scope and details of the claim made against the employer). While the Equal Opportunity Act 2010 (Vic) functions similarly to federal anti-discrimination law, an example of these differences can be seen between the Disability Discrimination Act 1992 (Cth) that states “circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments” obligations of which render a difference to the Equal Opportunity Act 2010 (Vic).
To continue further and assist with the amplification of pre-existing knowledge hidden in the corners of my mind, what exactly is vicarious liability? According to the Equal Opportunity Act 2010, vicarious liability is a person or agent engaging in conduct that contravenes discrimination as described earlier along with sexual harassment regulations as prohibited by the act. Sexual harassment is defined as an unwelcome sexual advance or requests for sexual favours along with conduct of a sexual nature that offends, humiliates or intimidates. In order to assess whether it is a vicarious liability claim, the negligible behaviour must have occurred during employment in addition to whether the employer has failed to take reasonable steps to prevent such contravention of the abovementioned. “A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.” In addition, vicarious liability holds a broader function, namely that the legislative obligations and requirements by employers works as a preventative measure or deterrent to reduce risk of harm against an employee. The ambiguity of vicarious liability lies in understanding the definition of an employee and of even the period during which one is employed. As said by CJ Gleeson, “Lord Wilberforce made the point that to describe a person as the agent of another, in this context, is to express a conclusion that vicarious liability exists, rather than to state a reason for such a conclusion. Nevertheless, some judges refer to agency as a criterion of liability, similar to employment. If that is to be done, it is necessary to be more particular as to what is meant.”
This is clearly observable when ascertaining the difference between a contractor and an employee. While it is generally viewed that independent contractors that are assigned employment carry out the required duties under the principle that they are in business for themselves and as such employers are not held vicariously liable, this has been proven not to be an absolute principle and there are instances in which the employer is deemed responsible for the negligent acts by independent contactors. In Sweeney V Boylan Nominees the High Court rejected the vicarious claim made against the respondent for an injury against the appellant, who had entered a service station owned by Boylan Nominees and opened a refrigerator door that was not correctly serviced by an independent contractor that resulted in injury. Initially, this area of tort law held an employer to be liable for the tortuous acts of an employee but not a contractor as cited in Quarman v Burnett (1840) however as continuous employment conditions and changes within the Australian labour market occur, the concept of contractors and vicarious liability challenges the meaning of what it is to be considered as an employee. Changes to interpreting the relationship between employer and contractor utilising the control test method – namely the attempt to ascertain the degree of control an employer has over a contractor – has also developed in preference for an analysis of the totality of the relationship.
This test of ascertaining the status of an employee in contrasted in the case of Hollis v Vabu that applies indicators which overall ascertain the actual relationship rather than focusing solely on the obligations as required by the contract itself. The plaintiff, a cyclist who was injured in a collision with a contractor that had the defendants’ name of Vabu visible during the accident brought to light the problem regarding the view that employers of independent contractors are not vicariously liable. The high court case thus attempted to clarify the issues respective of what a relationship entails with respect to employers and vicarious liability. As said, “[t]he system which was operated thereunder and the work practices imposed by Vabu go to establishing ‘the totality of the relationship’ between the parties; it is this which is to be considered.” Similarly, in Deatons Pty Ltd v Flew, during an altercation at a hotel, the plaintiff was struck in the face with a glass of beer that the barmaid threw following his abuse toward her during an intoxicated scene. As stated, “[a]n employer is liable for the act of his servant only if the act is shown to come within the scope of the servant’s authority either as being an act which he was employed actually to perform or as being an act which was incidental to this employment.” The case of Colonial Mutual Life Assurance Society LTD v Producers and Citizens Co-Operative Assurance Co of Australia was mentioned by Justice Kirby in light of the fact that the employer was vicariously liable for the negligence of the independent contractor since the latter was a representative or agent of the employer since he was wearing the uniform. Whilst the absence of a clear distinction that defines the differences between an employee and an independent contractor clearly arouses complications, Justice Bromberg in On Call Interpreters and Translators Agency Pty Ltd v the Commissioner of Taxation discussed the ‘totality approach’ that examines the question, stating;
“Viewed as a “practical matter”:
(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”
The ‘entrepreneur test’ viewed in a practical manner purports that an independent contractor as a representative can be considered an employee. As mentioned by Justice Kirby in Northern Sandblasting Pty Ltd v Harris, several areas still remain unclear and further analysis on focal points such as non-delegable duty, the retreat from the control test and the increasing use of independent contractors due to changing social conditions requires more coherency. Nevertheless, an independent contractor is advancing the interests of the employer and therefore can be considered representative of the employee and liable accordingly. Thus, attempting to ascertain whether an employer is vicariously liable for the negligent behaviour of independent contractors requires the analysis of the totality of indicators as part of a weighting process, considering whether there are clear benefits for the employer, whether the independent contractor is a representative of the entrepreneur, the terms of the contract ect. &c., until a formulation of the relationship can be ascertained. As was clarified in Sweeney V Boylan Nominees, “Mr. Comninos was not required to accept jobs from Boylan, did not wear a Boylan uniform, was not based on a Boylan premises and invoiced Boylan for the hours of work he performed.”
Liability does not necessarily require geographical or time-related specificity, for instance at the location of the employment or during working hours. In South Pacific Resort Hotels Pty Ltd v Trainor, Ms. Trainor was employed at a hotel in Norfolk Island and consequently had a part of the building arranged for the optional living quarters of employees. She had experienced sexual harassment from a fellow employee at the premises whilst both were off-duty and the court nonetheless found the employer vicariously liable since the premises itself was built for the purpose of their employment and the conditions and environment of the building therein allowed for the conduct to occur. “It [vicarious liability] is not premised on any culpable act or omission on the part of the employer; an employer who is not at personal fault is made legally answerable for the fault of his employee. It is best understood as a loss-distribution device.” Exploring the concept of vicarious liability under both Federal and Victorian anti-discrimination legislation, employers can be responsible for the acts made by employees including management, agencies, contract workers among others as long as it is in connection with a person’ employment and does not necessarily require being on or within a specific locale or premises of the employer or within working hours. In Leslie v Graham, Ms. Leslie was subjected to sexual harassment by Mr. [Lincoln] Graham at an apartment outside of working hours and following the situation she was unfairly dismissed by her employer Roger Graham and Associates – with Roger Graham being the father of Mr. Lincoln Graham. The line that separates an employer from the conduct and behaviour of employees or contractors clearly becomes obscured vis-à-vis sexual harassment cases. “Vicarious liability can more readily arise for trespassory torts such as sexual assault, based on a close connection between the employment and the tortious act in question.” Confusion is further amplified when attempting to ascertain the vicarious liability of employers outside of working hours. In the Sex Discrimination Act 1999 (Cth) whereby vicarious liability does not apply when it is established that an employee or agent of a person, “took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph”.
The employers’ responsibility vis-à-vis vicarious liability is not solely a matter of where failure itself had occurred, but rather whether the employer had taken reasonable steps to ensure that attempts were made to practicably prevent breaches from occurring. In R v Commercial Industrial Construction Group Pty Ltd CICG had breached health and safety regulations by failing to provide a working environment for its employees that was safe following Peter Bacon – site manager – who had asked labourers to perform unsafe duties that resulted in an accident. As part of the plea mitigation, CICG stated that they had taken all the necessary steps to ensure that a safe working environment had been enforced, thus it was Peter Bacon as a supervisor who failed to comply Job Safety Analysis (JSA) requirements. This was rejected in court, whereby, “[w]hen the employee in question is the person with supervisory responsibilities, including responsibility for ensuring safety at the site, the gravity of the company’s breach is increased, not reduced. It is difficult to understand how the company could have allowed someone with Bacon’s apparent indifference to risk to occupy such as position.” It was concluded that it had not been the case for CICG by employing a site supervisor who failed to adhere to health and safety obligations and consequently behaved negligently. Similaraly, in Gama v Qantas Airways Ltd, Mr. Gama was employed as a licensed aircraft mechanical engineer and who was subjected to racial slurs by co-workers in the presence of supervisors, the latter failing to take reasonable steps to stop the racist behaviour. On the contrary, Mr. Gama was further subjected to discrimination particularly related to his reporting requirements and any opportunity for promotion due to alleged systemic racial intolerance in addition to injuries he sustained during the course of his employment that resulted in less favourable treatment. As a consequence, Qantas was found to be in breach of the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth), namely that it is “unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability, [d] by subjecting the employee to any other detriment,” and as such vicariously liable particularly for the treatment he received by co-workers in the presence of supervisors.
Vicarious liability is not necessarily about whether an employer authorises tortious acts but rather about whether they are responsible for acts of negligence made by an agent they have employed and as such it is a requirement to ensure that legislation remains broad. Perhaps it is ambiguous to ensure that judges approach the subject on a case-by-case basis by examining the details regarding the nature of the employment. “Vicarious liability is the creation of many judges who have had different ideas of its justification or social policy, or no idea at all. Some judges may have extended the rule more widely, or confined it more narrowly than its true rationale would allow; yet the rationale, if we can discover it, will remain valid so far as it extends.” It is nevertheless commonsensical to assume that should an employee engage in conduct that is deemed offensive outside of the contractual obligations as required by the employer – or “engage on a frolic of his (or her) own” – then the employer cannot be held vicariously liable for such conduct. But should an employer see and fail to do anything about acts of negligence or harassment, then they are absolutely liable.
Comparatively, the legislative and common law processes that we have in place in Australia is certainly commendable when viewing the injustice of the legal systems in other nation-states around the world. It does not, however, change the fact that many employees unfortunately experience discriminate behaviour for personal attributes and ultimately such employers go unpunished.
Scott v Davis (2000) 204 CLR 333
Launchbury v Morgans  UKHL 5;  AC 127 at 135.
Stevens v Brodribb Sawmilling Co Pty Ltd  HCA 1; (1986) 160 CLR 16 at 29.
 Part 2, §7 Equal Opportunity Act 2010
 Part 2, §8-9 Equal Opportunity Act 2010
 Part 2, §6 Equal Opportunity Act 2010, “(a) age; (b) breastfeeding; (c) employment activity; (d) gender identity; (e) disability; (f) industrial activity; (g) lawful sexual activity; (h) marital status; (i) parental status or status as a carer; (j) physical features; (k) political belief or activity; (l) pregnancy; (m) race; (n) religious belief or activity; (o) sex; (p) sexual orientation; (q) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.”
 §12 Age Discrimination Act 2004 (Cth)
 §6A Racial Discrimination Act 1975 (Cth), §10 Sex Discrimination Act 1984 (Cth), §13 Disability Discrimination Act 1992 (Cth)
 §5(3) Disability Discrimination Act 1992 (Cth)
 §109 Equal Opportunity Act 2010
 §92 Equal Opportunity Act 2010
 §110 Equal Opportunity Act 2010
 Fleming, Law of Torts, 410
 Scott v Davis (2000) 204 CLR 333, 4; also see Launchbury v Morgans  UKHL 5;  AC 127 at 135 and International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co.(1958) 100 CLR 644, 652.
 Sweeney v Boylan Nominees Pty Ltd. (2006) 227 ALR 46;  HCA 19.
 Quarman v Burnett (1840) 151 ER 509
 Stevens v Brodribb Sawmilling Company Pty Ltd 1 TLR 101 at 111
 Hollis v Vabu (2001) 207 CLR 21
 Ibid,. Also see Stevens v Brodribb Sawmilling Co Pty Ltd  HCA 1; (1986) 160 CLR 16 at 29.
 Deatons Pty Ltd v Flew  HCA 60; (1949) 79 CLR 370 (12 December 1949) 2
 Ibid., 5
 Colonial Mutual Life Assurance Society LTD v Producers and Citizens Co-Operative Assurance Co of Australia (1931) 46 CLR 41
 On Call Interpreters and Translators Agency Pty Ltd v the Commissioner of Taxation (No 3)  FCA 366.
 Ibid., 208
 Northern Sandblasting Pty Ltd v Harris  HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997)
 Burnett, Jonathan — “Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees”  SydLawRw 5; (2007) 29(1) Sydney Law Review 163
  FCAFC 130
 Barbara Harvey, John Marston, Cases and Commentary on Tort, Oxford University Press (2009) 572
 Leslie v Graham  FCA,
 Gama v Qantas Airways Ltd (No 2)  FMCA
 Christine Fougere, ‘Vicarious liability for race and disability discrimination in the workplace’, Law Society Journal, April (2007) 37
 §9 Disability Discrimination Act 1992 (Cth)
 §15(2)(d) of the Disability Discrimination Act 1992
 Rick Glofcheski, ‘A Frolic in the Law of Tort: Expanding the Scope of Employers’ Vicarious Liability’ (2004) 12 Tort Law Review 18, 1
 §106 Sex Discrimination Act 1984 (Cth)
 §106 (2) Sex Discrimination Act 1984 (Cth)
 Brook Hely, “Open all hours: The Reach of Vicarious Liability in ‘off-duty’ sexual harrassment complaints.”
 R v Commercial Industrial Construction Group Pty Ltd  VSCA 181
 Ibid., 43
 Glanville Williams, Vicarious Liability and the Master’s Indemnity, The Modern Law Review, 20:3, 220–235 (1957)
 Morris v C W Martin & Sons Ltd  1 QB 716, 733–4 (Diplock LJ), discussed in NSW v Lepore  HCA 4; (2003) 212 CLR 511, 535–6 – (Gleeson CJ), 614  (Kirby J).
Whilst Australian politics certainly appears lacklustre in comparison to the complications and political machinations of a number of global powers and a challenge of which I am naturally compelled, nevertheless Australia has and will always remain a country – insofar as human rights and law is concerned – that I am proud of and have an inherent respect for, regularly comparing when researching or thinking about international relations as a whole. But it is not without its embarrassing moments, no doubt influenced by factious relations whether from powerful industry moguls or promoters of international conservatism. While I was happy to see Tony Abbott ousted, my fears that Malcolm Turnbull – being one who has public support – would cause Australians to overlook the fact that the Liberal Party contains a significant number of policies that have and continue to work against the improvement of Australian civil society. Being one more inclined to the judicial rather than executive elements of public policy, the first budget release of the Liberal government during the rather short period of Abbottism that cut funding for the Office of the Australian Information Commissioner [OAIC] proved that an intentional challenge against the very heart of the Australian Constitution appears to exist. Since the OAIC remains a legal entity, the intent of the Abbott government’ proposed abolition uniformly contradicts statutory obligations vis-à-vis section 61 of the Australian Constitution in that to simply bring a legal entity to an end independent of parliament is to usurp the constitutional role of parliament itself, since only the latter has the right to legislate accordingly. This act against the OAIC raises manifold issues particularly with legislative and executive functions and the required separation of powers, the composition of the ministries and ultimately the impact such an implementation of executive powers in defiance to legislative obligations can have on the future of human rights in Australia. The Freedom of Information Act [FOI] itself was established to ensure the principle of an open and accountable government and ultimately the health of Australian democracy without polluting the overall objective of the constitution that gives people the ultimate control of the government.
Are we living in an age where privacy is no longer paramount to our individual happiness? There are complex, dynamic and swift system and processes readily available that can easily locate the details of any one. If one knows how to look, the system of finding private information is not as difficult even for a common person. So imagine that when you make your information on social media public, the technically advanced algorithms and programming can detect that information and combine it with other information in order to establish and predict private, even sensitive information. You google “prams” and suddenly every page you visit has various baby retailers and the more information one is able to attain, the more accurate the predictability. If social networking sites wanted to advantageously use the platform as an opportunity to gain more information – since retailers could use that information to sell their products – they would naturally compel people to give more information. Let’s take it one step further. You download an app that requests access to your friends list, it can detect who your best friend is or a family member because you have suggested it (I can see who last viewed my Facebook profile in less than ten seconds just by scanning through sources codes). It can also detect which page you visit the most by using more refined systems and together, they can create a personalised facial composite using advanced software of your family or friends, whereby the image of this ‘person’ – a mash between someone you know and someone you don’t know – is used as part of an advertising or marketing strategy that implicitly compels you to a product, because you are unconsciously attracted to the image of that person that happens to be someone that you know.
The abuse of privacy is not uncommon, i.e., the recently exposed News International who hacked phones to obtain sensitive data – Rupert Murdoch being on friendly terms with the Liberal Government – and there currently stands no strict policies that would prevent or protect ourselves from abusers. Whilst I could, in this instance, begin discoursing on the social contract theory and perhaps the rather calculating, Orwellian agenda where society has gradually sacrificed their privacy and freedom for the sake of ‘national security’, in principle the disclosure of even the most basic information that we supply can be used against us. I can say that capitalism and globalisation is at the very heart that compels one to disclose information openly and freely. The incredibly narcissistic marketing stratagems tell us to conform, to not care about privacy, to avoid forming our own opinion, even what we think we should desire, unconsciously manipulating the decision-making process through the inducement of receiving positive things whether it is material, or friends, or popularity, sexual pleasure etc. &c., that we end up buying products that we don’t even need or want. People will eventually believe that material determinism is the only truth when in fact they have unconsciously been told to give up their own autonomy, that we are already living in a ‘A Spacetime Odyssey’ in that the very technological mechanisms we created to advance are – ‘the root of its own destruction’ – actually working against us.
In 1996, the Australian Law Reform Commission published Open Government – A Review of the Federal Freedom of Information Act 1982 (ALRC Report 77) designed with the intent on ensuring the principles of public scrutiny and the accountability of government that encapsulates the quality of democracy is applied viz. the objective of the act itself. “The FOI Act provides a right of access to information in the possession of government departments and agencies. The fundamental reason for providing this right is to ensure open and accountable government.” The publication confirmed the necessity to improve the quality of the decision making process that citizens should possess and as a consequence access to information is a criteria of democracy. Whilst democracy itself is ambiguous in definition, particularly since it poses intractable theoretical issues that limits its conceptual interpretation, broadly speaking the minimalist view of what constitutes a democracy can be defined as the ‘participation of all adult members of society, freedom to formulate and advocate political alternatives, and the credible availability of political alternatives.” During the developmental stages of FOI legislation in the late 1970’s, the Senate committee reported that the significance of implementing FOI laws was to ensure that individuals have access to what information the government may have and to have the capacity to correct what they consider to be misleading; in doing so, it will enhance the transparency of the government and ultimately a community better informed can participate democratically in a more effective manner.” Thus, the Freedom of Information Act 1982, an “Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies” was put to force.
Whilst initially accessible, over time the administrative process became problematic and overwhelmed, particularly attributable to compliance. Accordingly, it was recommended by the ALRC that a new statutory position of an FOI Commissioner to act as an “independent person to monitor and promote the FOI Act” should function to ensure compliance with the FOI Act and to raise the profile of the agency to the public through the improvement of the decision-making process. At the time there existed no independent person committed to act and contribute to resolving any difficulties that the agency experienced. Thus in 2010 the freedom of information reforms were implemented by the Australian government particularly concerning the Freedom of Information Act 1982 (FOI Act) and among those reforms included the appointment of the Australian Information Commissioner supported by statutory officers, namely the Privacy Commissioner and the Freedom of Information Commissioner, both appointing Mr. Timothy Pilgrim and Dr. James Popple for a term of five years. Appeals for any rejected FOI claims that previously were dealt by the Administration Appeals Tribunal (AAT) and were in addition an expensive and lengthy process can now be made directly to the Commissioner that ultimately reduced the backlog and turnaround times. It will additionally aid agency compliance, whereby “[t]he reported cost attributable to agency compliance with the FOI Act was $41.719m, an increase of 14.9% on the previous year.”
However, in the budget release of 2014-2015, the Abbott government withdrew the funds necessary to maintain the OAIC with the intention of disbanding the agency by the 31 December 2014. This was challenged by parliament since legislation with the intent of abolishing OAIC was not passed and consequently funds contributing to the agency were partially reinstated in the 2015-2016 budget. The initial objective was to transfer functions over to the Attorney-General Department and the Commonwealth Ombudsman who were already enabled with the powers to exercise the same powers of the OAIC. This is where the controversy lies, that without the approval of parliament for this decision, it has in point of fact exposed a deficit amid the separation of powers and the function of the executive branch of government. The withdrawal of funding and the intent to legislate the abolishment of the OAIC nevertheless appears to be a practice implemented previously. In September 2013, the Climate Commission funding was removed by the Abbott budgetary changes prior to the implementation of its abolishment by parliament. This confirms that the process of abolishing depends ultimately by parliament to be sure but the progression by procedurally defunding prior to any legislative changes confirms that there exists a rather discomforting executive system that stands on a thin line between the required separation of powers. The doctrine of the separation of powers is a concept that ensures accountability and strengthens the checks and balances through the constitution necessary to ensure a fair and just governance of citizens. Simplified, the legislature enacts, executive applies and the judiciary interprets the law and since the rigidity of the body of rules once enforced is binding, therein requires the appropriate checks that ensure the law is beneficial to society as constitutionally implied, to prohibit and regulate to the effect of protecting and enabling Australian citizens and for the “peace, order, and good government of the Commonwealth.”
Thus, to what extent does the removal of a regulator and a specialist low-cost review body undercut the benefits of the 2010 reforms to the Commonwealth FOI regime? The difficulties experienced by the commissioners due to budget cuts is perhaps sufficient enough to show the difficulties they experience performing the key functions of the agency, particularly with the effectiveness that it previously achieved. This is no doubt the reasons behind liberal government’ intent to close down the Commission, since the commissioners have been successful in a very short space of time in changing the structure and processes that have simplified accessibility to Australians and facilitated transparency as the original 1982 FOI Act had purposed. For instance, a strong emphasis on interagency networking all of which are subjected to the act and publications used as part of its information policy was resourcefully published and built, working on reforms implemented viz. the publication of information, “including information about what the agency does and why it does it.” In addition, the resolution of complaints that would otherwise remained fixed in a backlog of lengthy and expensive was significantly questioned and ultimately reduced allowing public access to information that would have remained locked in a loophole. The costs involved to appeal decisions particularly related to public interest cases prohibit the rights of many due to their incapacity to financially afford the associated costs. A recent and landmark decision viz., the ruling in Bare v Independent Broad-based Anti-Corruption Commission exposed this problem, whereby the Supreme Court of Victoria granted a protective cost order that limited the costs of Nassir Bare, a 17 year old Ethiopian man who was assaulted by police. Mr. Bare sought his right to have an independent body from the Victoria Police – the distrust that a fair and equitable assessment is clear since Mr. Bare himself was assaulted leaving chipped teeth and cuts along his jaw and thus breaching Section 38(1) of the Victorian Charter of Human Rights and Responsibilities – and when consulting the IBAC, the latter deciding not to investigate the claim. Accordingly, public interest is tested and determined when public interest substantially outweighs the entity in question and the court therefore ruled that costs associated with the case do not exceed a maximum of $5000 to allow Mr. Bare to continue with the proceedings.
The costs associated with FOI cases vis-à-vis the principle of the right to freely access information by public bodies establishes a reluctance by a significant portion of those attempting to access information and thus limits or excludes the disclosure of information. A report by the Australian Information Commissioner Prof. John McMillan highlighted the issues related to the scale of charges and the required simplification of its framework. That is to say that to prevent burdens reaching to an unmanageable state, limitations to accessing documents is applied through both the ambiguous practical refusal mechanism under the former ss 24 of the FOI Act, along with the power to impose charges. While it is clear that either a full or partial waiver of associated charges for those experiencing financial hardship are taken into account, what is considered ‘financial hardship’ indeed, what is considered ‘public interest’ itself required a more thorough definition to assist agencies with determining on a case by case basis the exemption of applicable fees. The success of the commissioners indeed has caused wide-eyed nervousness amongst more than one quarter in the liberal camp, no doubt the reasons behind the attempt to shut them down as abruptly as they intended. What exactly is it that they have to hide that they sit in trepidation that disclosure of information on matters of public importance is now becoming more efficient? Are the tests that facilitate transparency going to be too transparent?
 §61 Australian Constitution, to execute and maintain the constitution and the laws
 Sonam Samat. “Visceral Targeting: Using Personalized Face Composites for Implicitly Targeted Marketing” 11 October, 2013.
 ARLC 77, 2.2
 Sylvia Chan, Liberalism, Democracy and Development, Cambridge University Press, (2002) 10
 ARLC 77
 The Freedom of Information Act 1982 (FOI Act)
 ARLC 77
 ARLC 77, 6.4
 Freedom of Information Amendment (Reform) Act 2010
 Dr James Popple, “Message from the Freedom of Information Commissioner” OAIC Annual Report 2011-2012
 Office of the Australian Information Commissioner PBS, §1.1 p471
 Thomas J. Goreau, Ronal W. Larson, Joanna Campe, Geotherapy: Innovative Methods of Soil Fertility Restoration, Carbon Sequestration, and Reversing CO2 Increase, CRC Press (2014) 580
 The Australian Constitution, 1900 §52(i)
 Freedom of Information Amendment (Reform) Act 2010 (NO. 51, 2010) – Schedule 2: Division 1, §7A
 Bare v Independent Broad-based Anti-corruption Commission & Ors  VSCA 197
 For instance, see Privacy Amendment (Private Sector) Bill 2000 (Cth) Part VI, §72: 2(b)
 Prof. John McMillan, Review of charges under the Freedom of Information Act 1982: Report to the Attorney-General, February 2012
 This is no longer applicable.
 Review of Freedom of Information Legislation: Submission to the Hawke Review, December 2012: Section 198
 Freedom of Information Act 1982 – ss11B