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Charlton, Guy
- PublicationASEAN NGO Participation in UN Decision-Making Forums: Potential Hurdles(University of New England, 2022-07-05)
;Fraser, Nicole Joy; ; By contributing knowledge and expertise in the monitoring of states’ compliance with their international human rights obligations, domestic NGOs may be able to increase the representation of minority groups and increase the democratic legitimacy of decision-making processes. However, existing research suggests that hurdles are likely to limit the effective participation of some domestic NGOs, which in turn limits their ability to represent minority groups.
To illustrate the impact of hurdles, this paper seeks to identify what hurdles are likely to limit the ability of domestic NGOs’ representation of migrant worker issues, in the ASEAN region, in UN decision-making forums. By contributing knowledge and expertise in the monitoring of states’ compliance with their international human rights obligations, domestic NGOs may be able to increase the representation of minority groups and increase the democratic legitimacy of decision-making processes. However, existing research suggests that hurdles are likely to limit the effective participation of some domestic NGOs, which in turn limits their ability to represent minority groups.
To illustrate the impact of hurdles, this paper seeks to identify what hurdles are likely to limit the ability of domestic NGOs’ representation of migrant worker issues, in the ASEAN region, in UN decision-making forums. It is through the experience of domestic NGOs providing direct services to migrant workers that equips them with the knowledge and expertise for identifying issues which require legal reform or greater legal protection. However, as some domestic NGOs in the ASEAN region face limitations for their activities at the national level and some migrant worker issues are cross-border in nature, domestic NGOs may need to rely on avenues at the supranational level to advocate for migrant worker rights.
This research aims to identify what hurdles in the UN’s participatory frameworks and practices are likely to limit NGOs’ ability to participate effectively, and to propose possible reforms to ensure the effective participation of domestic NGOs. This will be achieved through the methodological approach of doctrinal analysis.
- PublicationLand and justice from the indigenous perspective: a study on the Tayal philosophy of "sbalay"Balay, kbalay, and sbalay are a series of related terms in the language of Tayal indigenous people in Taiwan. They connote Tayal people’s philosophy of reconciliation which is not only for resolving conflicts in the society but also embodied in the human–land relations. This article discusses the concept of justice in the sbalay philosophy that entrusts consensus and reconciliation with the truth. Examining the recent Pyanan Cypress Tree Incident sbalay case, this article analyzes the difference between Tayal people’s value system and Taiwanese state law and discusses some of the reasons behind the land conflicts between the state and indigenous peoples. This article suggests that it is necessary to provide legal space for Tayal people to practice the sbalay philosophy and human-land relations as part of the recognition of indigenous self-determination.
- PublicationRiver Water Regulation In India: The Challenges of the Entangled State(University of Pennsylvania * Law School, 2024-06-07)
; ; ;Kanwar, AbhayRahim, Mia MahmudurThe inland river water regulations in India have become complicated by debates over river ownership, environmental sustainability, native aspirations, and industrial growth. This Article argues that such complexities surrounding the river water regulations inform a "state of entanglement" which cannot be addressed without invoking the unique way the Indian state is embedded within Indian society. This Article suggests that public interest litigation and increased participation for stakeholders and the common people may offer an effective mechanism to overcome the obstacles of the entanglement of state and society in India.
- PublicationCase Note: Fitisemanu v. United States: U.S. Citizenship in American Sāmoa and the Insular Cases
This article considers the problematic place of individual American Sāmoans who have been denied full membership within the American political community, first due to the colonialist arcane notion of being unfit for full membership in the American community on racial and cultural grounds embodied in the Supreme Court's Insular Cases, and second, because these same cases have been repurposed, ostensibly to protect Indigenous culture. To that end, this article reviews the United States Tenth Circuit Court of Appeals' recent decision in Fitisemanu et al.v. United States, where a split panel reversed the U.S. District Court recognition of birthright citizenship to those born within American Sāmoa. The Appeals Court's decision determined that American Sāmoa was not within the scope of the 14th Amendment to the U.S. Constitution through a controversial repackaging of the so-called Insular Cases, which have been criticized as being emblematic of racialist and colonialist jurisprudence that justified the denial of rights to inhabitants of American colonial territories.
- PublicationRe-Thinking New Zealand’s Independent Foreign Policy
In the eyes of many politicians and analysts Aotearoa New Zealand's "independent" foreign policy is being undermined. Critics argue that closer security arrangements with Australia and NATO as well as the possibility that New Zealand will join Pillar II of AUKUS would reverse the country's ability to chart a pragmatic self-determining approach in its foreign policy.
Recently, former Prime Minster Helen Clark and former National Party leader Don Brash put aside their historical animosity to argue that a decision to join AUKUS would "abandon our independent foreign policy in favor of unqualified support for America's 'China containment policy.'" They accused New Zealand's current government of deciding to "throw in our lot with America's attempt to slow China's economic rise and keep it tightly hemmed in by American forces." Various members of the opposition Labor Party have similarly argued against a New Zealand presence in AUKUS, describing the pact as an attempt to "wedge" China and a trade threat.
- PublicationTaiwanese populism in the shadow of China
The ambiguous international status of Taiwan, the 38-year period of authoritarian rule, and the development of a competitive democratic polity have profoundly shaped forms of democratic mobilization and discourse. This politics has been further deepened by an increased awareness of human, and inter alia indigenous, rights. Notions of national identity, which include the advancement of multicultural and indigenous values, are in part due to the ongoing development of a national consciousness based on Chinese and liberal values. This process overlays profound political and cultural fissures as to whether Taiwanese identity is essentially part of a larger Chinese identity or a more geographically limited national identity. The chapter argues that Taiwanese populism is less about opposition to elite privilege and mass unmediated politics and more influenced by the ongoing question of Taiwanese national identity and how minority and indigenous groups fit into this democratic polity.
- PublicationChildren’s Rights, International Legal Standards and the System of Juvenile Criminal Justice in Sri Lanka(2020-06-10)
; ; ; Statistics around the world indicate that there is a continuous increase in the number of children who come into contact with the criminal law. Sri Lanka is no exception. Under these circumstances, the focus of this thesis has been on children who come into conflict with the criminal law of Sri Lanka. The study examines both the treatment of children in conflict with the criminal law and the process of administration of justice for children within the framework of the juvenile justice system of Sri Lanka. While evaluating the judicial process for these children in Sri Lanka, especial attention is paid to the extent to which this process adheres to accepted international norms that promote children’s rights. In reflecting on the degree to which international standards of children’s rights are thus embedded in the Sri Lankan juvenile justice system, it is anticipated that this work will provide deeper insights into what needs to be done to improve justice for children within this system.
Accordingly, this thesis seeks to argue and demonstrate that Sri Lanka, as a state party to the United Nations Convention on the Rights of the Child (UNCRC), violates the established human rights of children in conflict with the criminal law. Further, it illustrates that Sri Lanka significantly deviates from the internationally accepted minimum standards for managing child offenders.
Several research methods were used to establish these two arguments. The methods included an extensive literature review, law-policy analysis, case studies, and doctrinal methods. The analysis of pre-sentencing reports, stakeholder interviews (with key informants – KI), focus group discussions with KIs, and observational visits to courts, police stations, juvenile detention centres and probationary offices provided useful empirical evidence.
Analysis of Sri Lankan laws and policies related to juvenile justice points to significant gaps in the existing juvenile justice system and departures from the expected international conceptual framework, while the interviews, presentence reports, case studies and observational visits to juvenile justice agencies reveal empirical evidence to support that Sri Lanka does violate the UNCRC in relation to how juvenile offenders are managed. It is also seen from this analysis that Sri Lanka is far from meeting the minimum international standards envisaged by the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) in respect to managing children in conflict with the criminal law.
- PublicationChina’s Preference for Hard Power Is Creating Major Headaches for Beijing(2024-01-26)
; The Taiwanese presidential election on January 13, won by Vice President Lai Ching-te (or William Lai) of the ruling Democratic Progressive Party (DPP), was hardly welcomed by China. The Chinese government had actively opposed the DPP. It has been accused, not for the first time, of electoral interference in favor of its preferred candidates.
After the election, the Chinese Foreign Ministry said in a statement, "Whatever changes take place in Taiwan, the basic fact that there is only one China in the world and Taiwan is part of China will not change." The statement reiterated the One China principle and re-affirmed Beijing's opposition to "'Taiwan independence' separatism." Punctuating its position, Beijing condemned foreign leaders who extended congratulations to Lai, and welcomed Nauru into an official relationship as the Pacific island state severed ties with Taiwan just two days after the election.
- PublicationAustralia and New Zealand in the West Papua Conflict: A New Zealand pilot's abduction focuses attention on Wellington and Canberra's hands-off approach to the long-running conflict in Indonesia.
The drawn-out hostage drama in West Papua over New Zealand pilot Philip Mehrtens has focused Western attention on this neglected area of the world. Mehrtens was abducted and his plane burned by the West Papua National Liberation Army (TPNPB) on February 7, 2023. He was accused by the group of violating a no-fly zone it had issued over the West Papua region. On April 16, rebel spokesperson Sebby Sambom stated in a recorded message that TPNPB has "asked the Indonesian and New Zealand governments to free the hostages through peaceful negotiations." The group originally demanded that Indonesian authorities recognize the independence of West Papua, but more recently it indicated that it was prepared to drop the demand for independence and seek dialogue.
- PublicationEvaluation of Natural Resource Governance in the Solomon Islands: Sustainable Forestry
The forests of the Solomon Islands are some of the most important in the world, given their high biodiversity and function as carbon sinks at this time when climate action is becoming a number one global priority. In addition, these forests have been, for millennia (and continue to be), a vital economic, cultural and spiritual resource for the Indigenous peoples of the Solomon Islands. Nevertheless, scientific evidence clearly indicates that current forest harvesting in the Solomon Islands is unsustainable, with annual harvesting at about 10 times the sustainable yield. If unchallenged, such harvesting will lead to forest and landscape degradation and socio-economic problems with potentially catastrophic impacts for the local communities. However, achieving sustainable forestry is not merely a scientific problem – it is a problem of governance. The central research question of this study is: Do the Statutory Law and Customary Law co-governance arrangements embedded in the Solomon Islands Constitution, legislation and policies facilitate or hinder sustainable forestry in the Solomon Islands? This research question was answered in two steps of data collection: The first step was the examination of official and other institutional documents, historical references, laws and regulations, reports and scholarly articles. This examination provided the background for understanding the history of forest management and the characteristics of the Solomon Islands' forests governance system relating to the sustainability of its forest resources. The second stage of data collection involved in-depth semi-structured interviews with 16 interviewees from Honiara (the national capital of the Solomon Islands), 6 from Taro (Provincial Headquarters of Choiseul Province) and 13 from Loloko village (a village in Choiseul Province). These interviewees were all Indigenous Solomon Islanders, comprising 29 males and 6 females. The aim of this second stage of the data collection was to ascertain what is actually happening on the ground with the laws and institutions involved in the governance and management of forests in the Solomon Islands. The study proceeded to identify how forest-relevant laws, policies and institutions relate to the pre-existing traditional customs and institutions of the Indigenous people's governance and management of themselves and with their customarily owned forest resources. This information was then used for determining the interrelationship between the state system and the traditional system, whether there is a need for improvements and how that can be addressed.
The study finds that the Solomon Islands' forests governance system is predominantly hierarchical in nature, making it ineffective for managing sustainable forestry. The ineffectiveness is mainly caused because of the Solomon Islands pluralistic legal system, land ownership that is predominantly Customary, and its ceaseless ongoing issue of limited resources and capacity. To improve the forest governance system, this research identifies five key principles (with related elements) of forest co-governance that are relevant to the context of the Solomon Islands: uphold Statutory and Customary Law, partnership between the state and landowners, access to justice and resolution of conflicts, enforcement and accountability, and access to and provision of information.
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