All posts by Ken Parish

Retired lawyer and legal academic, as well as a NT politician for a few years in the early 1990s.

Ukraine, Russia and the elusive grundnorm

I don’t pretend to understand the detail of the current situation between Russia and Ukraine, but it seems entirely reasonable to fear that this may well be the most significant threat to world peace since the Berlin Wall Crisis and Cuban Missile Crisis of the early 1960s.

Even if the situation does not spiral into open warfare (which thankfully still currently seems unlikely), it already poses a significant threat to the entire international order of stable national sovereignty and territorial integrity that has developed under the auspices of the United Nations in the wake of World War II. Situations where a nation invades a neighbour for the purpose of territorial aggrandisement are now so rare as to be almost unheard of, at least in the First World. We tend to forget that “might is right” was pretty much the international behavioural norm for the whole of human history up until that time. Indeed the entire phenomenon of European colonialism was based on a combination of the “might is right” philosophy and the inherently racist assumption of the manifest inferiority of non-white races.

It may well be that Russia has a plausible relatively recent historical claim that Crimea was once part of its territory, and its desire to secure ongoing access to the port city of Sevastopol for its navy fleet is at least understandable in geopolitical terms. Nevertheless, Russia’s apparent invasion of Crimea over the last few days is undeniably totally contrary to modern international law. If allowed to stand completely unchallenged, the modern system of national sovereignty underpinned by the United Nations may be imperilled. For example, one could imagine China using this precedent to justify a later invasion of Taiwan, to which it has historical territorial claims at least as plausible as Russia’s claims to Crimea.

No doubt that is why the United States is beginning to respond to the crisis in increasingly strident and bellicose terms, although European nations seem so far to be exhibiting a greater degree of diplomatic restraint.

However, what is to be done?

Perhaps part of the answer lies in sophisticated analysis and application of international constitutional doctrine as considered in the 2001 decision of the Court of Appeal of Fiji in Republic of Fiji v Prasad (‘Prasad’).  As UWS academic Michael Head explains:

The Court of Appeal of Fiji declared that the military-appointed Interim Government failed to establish that it was the legal government. It ruled that the Constitution Amendment Act 1997 (Fiji Islands) (‘1997 Constitution’) remained the supreme law of the country and had not been lawfully abrogated by the military commander, Commodore Frank Bainimarama, when he effectively took power on 29 May 2000, ten days after businessman George Speight’s seizure of Parliament.

Remarkably, Speight and Bainimarama actually obeyed the Court’s decision and surrendered power to the previous duly elected government. Sadly (depending on one’s viewpoint), the story did not end there. Bainimarama learned the despot’s lesson from the Prasad decision and staged a subsequent coup in which one of his first acts was to abolish the Court of Appeal and appoint his own hand-picked judges in its place. Indeed that coup was so successful that Bainimarama remains in control of Fiji today, despite somewhat ineffectual economic sanctions imposed on the country by Australia and New Zealand. Moreover Australia’s new Prime Minister Tony Abbott has just announced that sanctions will probably now be lifted and Fiji restored as a full member of the international community in good standing.

Nevertheless, the Court’s reasoning in the Prasad decision and subsequent academic analysis of it may hold important clues about how the current stand-off between Russia and Ukraine might productively be managed in a manner that is consistent with maintenance of the international rule of law.

The Court of Appeal considered the application of the international law doctrines of “successful revolution” and “necessity” as ways of assessing the legality of a post-revolutionary government regime. In particular, the Court considered the contribution of European jurisprudential scholar Hans Kelsen, who added to those doctrines his own notion of “effectiveness” to assess the legality in international law of a post-revolutionary regime.

Kelsen was a modern legal positivist scholar who sought among other things to propound an objective “pure theory of law” to provide a rationalist (if somewhat amoral) underpinning of international law doctrine relating to national sovereignty and related issues. His notion of the “grundnorm” is a significant part of his pure theory of law, with which this author has been known to torture CDU constitutional law students.  Kelsen’s interest in post-revolutionary constitutional legitimacy is understandable in the context of his lifelong commitment to positivist legal theory and also given that he was writing in the immediate aftermath of World War II and the breakdown of the European colonial system, when lots of new revolutionary regimes were establishing themselves, often by violent means and against the will of their former colonial masters. What criteria should other nation states apply in deciding whether to recognise a new post-revolutionary regime as lawful or legitimate? Should it merely be the new regime’s de facto possession of durable if despotic control at the barrel of a gun? Or should something more be required? Michael Head describes and critiques the Fiji Court of Appeal’s discussion of these issues in the Prasad decision:

In Prasad, the five Court of Appeal judges applied doctrines that British and American courts have fashioned over several centuries to determine whether to uphold the imposition of dictatorial measures (‘necessity’), or the outright seizure of power by the military or other authorities (‘successful revolution’). …

In most post-World War II cases on coups d’état, the courts made reference to the ‘principle of effectiveness’ enunciated by Austrian legal philosopher Hans Kelsen in his work General Theory of Law and State. Not to put too fine a point on it, Kelsen’s theory justified the seizure of power by force. Quoting his writings, judges ruled that coups did not need to command ‘universal adherence’, simply ‘a minimum of support’. …

In Prasad the judges expressed concern that Kelsen’s ‘principle of effectiveness’ might too readily reward a usurping regime. The judgment also spoke of a new regime having to prove that its rule was based on ‘popular acceptance and support’ as distinct from ‘tacit submission to coercion or fear of force’.  The holding of elections would be ‘powerful evidence of efficacy’.

It would be rash, however, to interpret this emphasis as evidence of a more democratic approach. It is, we should recall, in line with the Western powers’ demands for earlier elections in order to establish a more reliable regime that can command popular respect.

Far from laying down any new principle of democracy, the Court disagreed with a passage in the 1986 Grenada case that listed as one criterion for a successful revolution that ‘it must not appear that the regime was oppressive and undemocratic’. The Court stated that this condition ‘went too far’, without offering any explanation except to cite F M Brookfield’s view that the condition goes ‘to the legitimacy of a regime rather than its legality’.

This distinction is unconvincing. As many commentators have pointed out, it is, in reality, impossible to separate legality from legitimacy. …

Implicitly, Head asserts that international law ought to require some reasonable minimum level of democratic legitimacy or popular acquiescence as an essential condition for international recognition of the lawfulness of a new post-revolutionary government.

However, although international law on post-revolutionary regimes has not yet developed to the point Head implicitly argues (and I agree) is appropriate, application of these principles with the addition of a democratic element might well provide a principled way of resolving the current stand-off between Russia and Ukraine in a manner that upholds and even extends the rule of law.

The transitional regime now installed in Ukraine following the ousted pro-Russian former President Viktor Yanukovych fleeing the country, has clearly staged a “successful revolution” across most of the country. Moreover, it appears to command widespread if not universal voluntary adherence of most of the population. Perhaps even more importantly, it would pass almost any reasonable test of democratic legitimacy. Its accession to power was approved by the Ukraine Parliament, and it has pledged to hold early democratic elections. Accordingly, it merits international recognition not only on the criteria laid down by the Fiji Court of Appeal in Prasad, but also on the more rigorous principles that Michael Head appears to favour.

On the other hand, the Ukraine transitional regime would almost certainly not pass any of these tests in relation to the culturally Russian region of Crimea. For a start, it has not achieved effective de facto control of that region, although perhaps in part because its achievement of such control has been pre-empted by the manifestly illegal Russian invasion. However, and again perhaps more importantly, it is a fair bet that the majority Russian-speaking population of Crimea in no sense accepts the legitimacy or authority of the transitional regime and is unlikely to do so in the foreseeable future.

These diametrically opposing practical outcomes in the two parts of Ukraine may potentially provide the basis for a workable, peaceful and even principled solution. Perhaps America and Europe should aim at brokering a solution whereby Russia agrees to accept the lawfulness and legitimacy of the new Ukraine transitional regime across all of Ukraine except the Crimea region. Moreover, Russia would also agree to withdraw its forces from Crimea in return for the new Ukraine regime agreeing that an internationally-supervised democratic act of self-determination will occur in Crimea, with UN peacekeeping troops occupying that region until this act of self-determination occurs.

It might well be that such a solution could win the acceptance of both sides. The new Ukraine regime really wouldn’t have much practical choice, because it has no way of retaking Crimea by its own efforts given the overwhelming superiority of Russian military forces. As far as Russia is concerned, it could be very confident that the Russian-speaking majority in Crimea would vote either for full union with Russia or at the very least creation of an autonomous but strongly Russian-aligned new nation of Crimea.  It would attain its territorial and strategic ambitions while remaining a law-abiding member of the international community.

**Image authorised for reuse.

Violence ‘R’ Us

A letter to the editor of the local Northern Territory News yesterday caused me to make one of my fairly infrequent checks of crime statistics. Correspondent Chris Rogers, fairly clearly a Labor supporter, had this to say:

Recent crime statistics painted a bleak picture of our personal safety in the Territory. Statistics in the NT News report on local crime (March 1, 2014) indicate that people in the NT are three times more likely to get attacked than someone living down south.

The data also show that assaults, domestic violence assaults and alcohol-related assaults in Darwin, Palmerston and Alice Springs all increased last year.

It seems to me that the figures point to the CLP’s policy of relaxing alcohol supplies to the wrong people being the main problem…

In fact the most recent crime statistics show that violent crime rates for the Northern Territory as a whole increased by 10.8% in 2013. In Darwin the increase was 9.7%, in Palmerston a very small 2.5% and in Alice Springs 7%.

Now on first blush that might appear to support Chris Rogers’ argument. However, when we examine crime statistics for the preceding five years 2006-2011, when the Martin/Henderson Labor government was in power, we find that the rate of annual increase is hardly any lower.  Violent crime increased by a total of 38% in the Territory as a whole over that period i.e. an average of just under 8% per year.

Far from showing, as Chris Rogers asserts, that the current rate of increase in violent crime is a result of “the CLP’s policy of relaxing alcohol supplies to the wrong people” (presumably he means Aborigines), analysis of the statistics over the last decade suggests that neither the ALP’s anti-alcohol policies nor the new CLP government’s replacement policies have had any measurable effect on the seemingly inexorable rise in violent crime in the Northern Territory.

When viewing crime statistics, it always pays to keep in mind that changes in reporting patterns can have a dramatic effect on the overall figures, especially in a very small jurisdiction like the Northern Territory. Moreover, quite a high proportion of total violent crime is constituted by domestic violence offences, a category where reporting rates notoriously may vary widely over time for a range of reasons. Nevertheless, the fact that there have been steady and quite large increases in violent crime basically every year for the last decade or more suggests that there are real and very serious social problems that are not being effectively addressed.

This increasing trend is rendered even more disturbing by the fact that violent crime in the rest of Australia has actually been falling steadily over the last decade.

One might regard it as remarkable that we don’t see greater and more serious attention paid to this problem. Instead we just get politicians on both sides grandstanding with ill-considered “tough on crime” announcements seemingly designed purely for short-term electoral gain, along with blatantly partisan letter writers like Chris Rogers whose sole interest appears to be to pin the blame on one side of politics or the other.

Violent crime has drastic effects on our community, both socially and economically.  It is much worse here than in the rest of Australia, and its effects are by no means confined to the Aboriginal community (although Aboriginal people are drastically overrepresented in the ranks of both victims and perpetrators). It is well beyond time for us to start seriously analysing its causes and seriously looking for more effective responses. A good start would be to fund the establishment of a local Northern Territory equivalent of the Australian Institute of Criminology.

Of course, the Territory has a much younger population than the national average, a much higher proportion of Aboriginal people, and much higher levels of alcohol consumption than the rest of Australia, in both the Aboriginal and non-Aboriginal community. All those demographic factors are associated with higher crime rates, and so it is very likely that the Northern Territory will continue to exhibit higher crime rates than other parts of Australia whatever responses governments implement. Nevertheless, surely we can do better than has been the case over the last decade or so. At the very least we need to find out why violent crime here is getting worse not better.

**Image authorised for reuse.

Parole for murderers and rapists?*

[*First published mid-2013] Last week a prostitute was murdered on the streets of St Kilda in Melbourne, where I am currently living part of the time. Journalist Wendy Squires yesterday drew parallels between that crime and the horrific rape and murder of ABC employee Jill Meagher by serial rapist Adryan Bayley.

Squires sought to make a somewhat strained connection with a current controversy over the actions of the Parole Board of Victoria which, at least according to the tabloid media, is consistently guilty of irresponsibly letting dangerous violent offenders loose on the community:

Continue reading Parole for murderers and rapists?*

Frank and candid or same old secrecy obsession?

The Labor government’s 2010 reforms to the Freedom of Information Act 1982 (Cth) , originally sponsored by former Special Minister of State John Faulkner have received a mixed reception from media and legal experts, both before and since their introduction.  This is an updated version of an article I originally wrote for Introduction to Public Law students back in 2009, before the reforms were actually introduced.

The Sydney Morning Herald was almost rapturous with praise while The Australian was rather more equivocal, and positively scathing about related reform proposals on whistleblower legislation (which currently doesn’t exist at Commonwealth level) and “shield” laws for journalists who protect their sources (as journalistic ethics require).

Blogger and FOI legal expert Peter Timmins also damned Faulkner’s reforms with faint praise:

Continue reading Frank and candid or same old secrecy obsession?

Lock up refugees and throw away the key?

CDU Introduction to Public Law students should be taking careful note of the current public controversy over refugees indefinitely held in immigration detention as a result of adverse ASIO security assessments which they cannot effectively challenge. Secret evidence provisions in ASIO regulations mean they can be denied all knowledge of the reasons and supporting evidence for an adverse assessment.  In our recent topic 9 tutorial (judicial power and separation of powers) we looked at High Court decisions in the Gypsy Jokers and K-Generation cases, which both involved legislation containing similar secret evidence provisions to the ASIO situation currently affecting refugees.

Continue reading Lock up refugees and throw away the key?

Law – A profession or an industry?

[First published Law Week 2012] This week is Law Week, and this is the second of two articles on topics of general importance to the legal profession.

Access to justice is a big issue in Australia, as my Introduction to Public Law class explored yesterday in the context of discussing administrative law merits review.  Legal aid is hardly ever available, for example, for litigants before general merits review tribunals like the Administrative Appeals Tribunal and its State equivalents.  Yet unrepresented litigants are at a major disadvantage when facing “lawyered up” government departments, despite the exhortation in section 33 of the Administrative Appeals Tribunal Act 1975 that proceedings should “be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act … permit”.

Legal aid is also hardly ever available for anti-discrimination proceedings either before the Human Rights Commission or State or Territory equal opportunity bodies.  Somewhat ironically, that may mean that these bodies actually exacerbate the discrimination applicants have suffered rather than resolving it, because respondents will commonly be employers, businesses or governments who can usually afford their own legal representation where an ordinary applicant cannot.

Continue reading Law – A profession or an industry?