Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

Is State of Necessity a Principle of Customary International Law

Is State of Necessity a Principle of Customary International Law? (Est-ce que L'état de nécessité est un principe de droit international coutumier?) (French)

Author(s): Sarah Heathcote

This article argues that State practice does not sustain the assertion, increasingly prevalent in judicial decisions and arbitral awards since 1997, that state of necessity is a principle of customary international law. Nor indeed is it 'spontaneous' law as ILC Special Rapporteur Roberto Ago had insinuated. Moreover, a considerable difficulty in establishing a customary rule of necessity is that its well established formulation is highly abstract (neither the ends to be safeguarded by its invocation, nor the means to achieve those ends, are specified by the purported rule); whilst its manifestations can only relate to specific and tangible ends. Consequently, how can one know whether a concrete situation is one premised on, and accepted as an application of, an abstract rule of necessity, or instead is premised on, or accepted as, a manifestation of an emerging or existing specific rule of exception relative to particular situations? Thus both State practice and logic indicate that necessity remains de lege ferenda; though a material source (or extra-legal inspiration) for particular rules of exception. This may well be the case in respect of an emerging exception of financial necessity.

Read on SSRN

Centre: CIPL

Research theme: International Law

Corporate Constitutionalism

Review Essay: Corporate Constitutionalism

Author(s): Peta Spender

The challenge for critical corporate law scholars is to provide an account of corporate law that accommodates responsiveness to the public interest. This involves defining a space for debate about both the public policy goals of corporate law and the regulatory mechanisms for achieving those goals. This task is a complex one because it involves recognising the insights of law and economics scholars, in particular, that corporations are at once important components of markets and constituted by those markets. A recent book and winner of the 2008 Hart Socio-Legal Book Prize, The Constitutional Corporation by Stephen Bottomley, provides just such an account of corporate law. This book provides a pragmatic account of corporate law which opens up corporate law to political concerns while acknowledging that corporate law is private in its orientation. This review of The Constitutional Corporation provides an overview of Bottomley’s analysis, locates his approach in broader theoretical debates about corporate law and examines the potential of the approach to develop systems of corporate social responsibility in order to meet impending global challenges such as climate change.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy, The Legal Profession

Chapter 3: Citizenship Law

Chapter 3: Citizenship Law

Author(s): Kim Rubenstein

This chapter analyses Justice Kirby’s constitutional judgments, drawing out various themes in his approach to Australian citizenship law, and considers whether his approach to citizenship has been influenced by underlying ideas that are supranational (acknowledging nationality as a status beyond one nation-state) and universal, as applying to all citizens in all states, or indeed colonial (that is, influenced primarily by Australia’s British subject origins).

The chapter explores the distinction, drawn in several of Justice Kirby's citizenship judgments, between constitutional and statutory forms of nationality. Kirby J has rejected the idea that statutory forms of citizenship adopted by the Federal Parlaiment can define exclusively those who are Australian nationals, and thus 'non-aliens' - that interpretation, he argues, 'deprives the separate constitutional idea of Australian nationality of any content'.

However, while Justice Kirby has been keen to develop a contemporary understanding of the meaning and signifi cance of constitutional nationality, applied in a social and political context far removed from the understanding of the framers of the Constitution, his broadest view of membership beyond statutory citizenship status includes only those non-citizens who hold British subject status and who enjoy most of the rights normally attributed to democratic citizenship (such as voting). This “broad” view does not necessarily include those non-British-subject permanent residents who have spent almost their entire life in Australia and have been absorbed in most other social and political ways. To this extent, his view of citizenship is not supranational or universal, but linked directly to Australia’s historical colonial origins.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

England and the Rediscovery of Constitutional Faith

England and the Rediscovery of Constitutional Faith

Author(s): Matthew Zagor

England is currently experiencing a widely recognised constitutional renaissance, with traditional English ‘liberties’ at its core: historic rights and liberty-affirming documents of the past are cited by counsel and judge alike, the Prime Minister waxes lyrical about constitutional values which define the British nation, scholars call for the revival of a purported rights-centric common law constitution, and a new breed of media-star historians are rediscovering English liberties in political institutions and re-imagined constitutional moments. Even the mythology of Magna Carta is resurfacing in the popular imagination, the date of its signing selected by public poll as ‘the best date to celebrate Britishness’.

The rhetoric contrasts with the dominant popular trope for much of the twentieth century, which portrayed the English constitution as essentially clever politics. Today’s constitutional veneration, however, has a long and complex history. This paper charts the variety of constitutional veneration that arose in the post-reformation period, as well as its decline, and contemporary revival. Starting with an overview of the seventeenth century, it charts the emergence of a constitutional language arising out of the rich theological and philosophical tradition of the age, and the persuasive use by the principal judicial figures of the day of new forms of historiography, traditional natural law philosophy, and emerging ethnic nationalism. Underpinned by contended notions of liberty and religiosity, this potent mix ensured that the newly minted English constitution enjoyed a quasi-religious status, embracing divinely ordained values and institutional arrangements that at once defined what it was to be both English and Protestant, and therefore was worthy of veneration. The decline of this constitutional model in the 19th and 20th century is then considered against the backdrop of empiricism, utilitarianism, nationalism and the victory of a political understanding of the constitutional model. The purported disappearance of the ‘legal’ constitution in this period, however, was never to be consolidated, nor were the contradictions inherent in the new ‘sovereignist’ model reconcilable with the explosion of rights jurisprudence in the latter part of the twentieth century. The article therefore concludes with a brief overview of the re-emergence of the language of constitutional faith in the late twentieth and early twenty-first century, and the renewed reliance on this rhetoric of constitutional veneration by the judicial branch of government in an attempt to influence the development of a normative English constitutional and national identity.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Chapter 5 Constitutional Law

Chapter 5 Constitutional Law

Author(s): Heather Roberts

Michael Kirby is something of a force of nature. His reputation for energy, ideas and conviction is only eclipsed by his willingness to articulate his views widely to national and international audiences. He is identified with causes and approaches that win him both plaudits and condemnation, though not in equal measure. Any assessment of his contribution to Australian constitutional jurisprudence is inevitably drawn to the conclusion that he sits awkwardly between two eras. He is a legal realist appointed at a time when the ascendant political and legal norms were hostile to that movement. Moreover, his jurisprudence, it would appear, is not developed solely for his time on the Bench but for some future era when his view may gain greater currency.

Michael Kirby is a judge who stands out of his time. This chapter explores the key attributes of Kirby’s interpretative methodology and significant aspects of his understanding of the nature and operation of the Australian Constitution.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Legal History and Ethnology, Private Law, The Legal Profession

Access to Essential Medicines

Access to Essential Medicines: Public Health and International Law

Author(s): Kim Rubenstein

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases.

Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research.

In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing.

In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable...

The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Judicial Rhetoric and Constitutional Identity

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Reflections on Human Rights, Law and Justice

Book Review: Watching Brief: Reflections on Human Rights, Law and Justice (Julian Burnside)

Author(s): Matthew Zagor

Julian Burnside’s collection of essays provides an insight into the mind of one of the Howard era’s most vocal public critics. Located within traditional liberal values and orthodox human rights principles, Burnside’s stories of human suffering and his Kantian appeals to human dignity are aimed at awakening our ‘imagination to understand the realities’ behind the political and legal spin of the times. Although sometimes loose with his legal language, his vision of a ‘just society’, his concerns for democracy, and his fury at the disempowerment and silencing of ‘voiceless minorities’ (notably asylum-seekers, indigenous peoples, and ‘terror’ suspects) remain persuasive and relevant to the new administrations in both Australia and the US.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

The Regulation of Southern Ocean Whaling

The Regulation of Southern Ocean Whaling: What Role for the Antarctic Treaty System?

Author(s): Donald Rothwell

In 2009, the 1959 Antarctic Treaty celebrates its fiftieth anniversary. Over its fifty-year existence the Treaty and the Antarctic Treaty System (ATS) built upon it, have promoted freedom of scientific research in Antarctica and the Southern Ocean. Despite the many successes of the Antarctic legal regime, there has been growing disquiet over the conduct by Japan, an Antarctic Treaty party, of its 'special permit' whaling program in the Southern Ocean. This program now has a lengthy history stretching back to the late 1980s, and has been undertaken purportedly in reliance on the 1946 International Convention on the Regulation of Whaling, which allows whaling for scientific purposes in limited circumstances. It has also been pursued on the assumption that the global whaling regime takes priority over the disciplines imposed by the regionally-focussed Antarctic Treaty System which seeks, among other things, to promote scientific research in Antarctica and to protect the Antarctic ecosystem. This article examines the interaction between the Antarctic and whaling regimes and argues that the main environmental text in the ATS, the 1991 Environmental Protocol, imposes obligations upon Japan to minimise or eliminate the environmental risks of its burgeoning Southern Ocean whaling program.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

The Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Power of Rationalization to Influence Lawyers' Decisions to Act Unethically

Author(s): Kath Hall, Vivien Holmes

This article explores the psychological literature on rationalization and connects it with contemporary questions about the role of in-house lawyers in ethical dilemmas. Using the case study of AWB Ltd, the exclusive marketer of Australian wheat exports overseas, it suggests that rationalizations were influential in the perpetuation by in-house lawyers of AWB's payment of kickbacks to the Iraqi regime.

The article explores how lawyers' professional rationalizations can work together with commercial imperatives to prevent in-house lawyers from seeing ethical issues as those outside the organisation would see them. In particular, where lawyers over-identify with their client's commercial point of view and convince themselves that their role is primarily about providing 'technical' advice on commercial matters, wilful or unintended 'ethical blindness' can result. Lawyers can end up involved in or perpetuating serious misconduct by their client organizations.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

The Law School, the Market, and the New Knowledge Economy

Author(s): Margaret Thornton

This paper considers how recent changes in higher education are impacting on the discipline of law, causing the critical scholarly space to contract in favour of that which is market-based and applied. The charging of high fees has transformed the delicate relationship between student and teacher into one of ‘customer’ and ‘service provider’. Changes in pedagogy, modes of delivery and assessment have all contributed to the narrowing of the curriculum in a way that supports the market. The paper will briefly illustrate the way the transformation has occurred and consider its effect on legal education and the legal academy.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Proximity – The Law of Ethics and the Ethics of Law

Author(s): Desmond Manderson

Emmanuel Levinas is one of the great writers on ethics of the 20th Century, but he is little known in law. His two main works, Totality and Infinity and Otherwise Than Being, or Beyond Essence, offer a reconstruction of human selfhood away from questions of identity and ego and towards an ‘ethics of the other’. His writing is passionate, mystical, and rational, at times erudite and elsewhere downright obtuse. But as reward for this struggle, Levinas offers a sustained meditation on the relationship of ethics, responsibility and law, and - remarkably - he does so using the language of the duty of care. Here then is a philosopher, largely unknown to legal theory, who at last speaks the language of torts. Central to Levinas’ meditations is an idea of ethics to which I will have recourse. For Levinas, and those who have been influenced by him, the word ethics implies a personal responsibility to another that is both involuntary and singular. The demand of ethics comes from the intimacy of an experienced encounter, and its contours cannot therefore be codified or predicted in advance. At least as opposed to the Kantian paradigm of morality as ‘a system of rules,’ ethics therefore speaks about inter-personal relationships and not about abstract principles. At least as opposed to most understandings of law, ethics insists on the necessity of our response to others, and the unique predicament of each such response, rather than attempting to reduce such responses to standard instances and norms of general application applicable to whole communities and capable of being settled in advance. Indeed, ethics constantly destabilizes and ruptures those rules and that settlement. Furthermore, ethics implies an unavoidable responsibility to another which Levinas exhorts as ‘first philosophy’: by this he means to indicate that without some such initial hospitality or openness to the vulnerability of another human being, neither language nor society nor law could ever have got going. At least as opposed to many understandings of justice, there is nothing logical or a priori inevitable about such an openness; except that without it, we would not be here to talk to one another. We cannot derive this ethics from rational first principles. Ethics is that first principle.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Cronullified: Can the Commonwealth Regulate Low Level Racist Speech?

Author(s):

Political commentary on race, multiculturalism and national identity can be very controversial because it often appears to demarcate a line between those Australians who are ethnic and cultural insiders and those who are outsiders. This type of speech can venture into the territory of being low level racial vilification speech. That is, speech that contains overtones that are hostile or contemptuous towards a particular racial group but which does not overtly espouse hatred. Low level racial vilification speech serves to exclude others from being truly equal within the community. Yet it does not appear to be effectively regulated under the Racial Discrimination Act. However, this type of speech deserves some form of public censure. In this article I analyse low level racial vilification speech in the context of political speech. I consider whether it is possible to implement a policy scheme where speech with racist overtones, as opposed to hate speech, can be subjected to some form of official censure whilst, in the interests of not unduly restraining political speech, not being prevented from being published or disseminated.

Read on SSRN

Centre: CCL

Research theme: International Law, Law and Technology, Private Law

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

Author(s): Molly Townes O'Brien, Kath Hall

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Criminal Law, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

Author(s): Molly Townes O'Brien, Kath Hall

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Criminal Law, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

The Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Fresh Perspectives on the 'War on Terror'

Author(s): Miriam Gani

On 20 September 2001, in an address to a Joint Session of Congress and the American people, President George W Bush declared a 'war on terror'. The concept of the 'war on terror' has proven to be both an attractive and a potent rhetorical device. It has been adopted and elaborated upon by political leaders around the world, particularly in the context of military action in Afghanistan and Iraq. But use of the rhetoric has not been confined to the military context. The 'war on terror' is a domestic one, also, and the phrase has been used to account for broad criminal legislation, sweeping agency powers and potential human rights abuses throughout much of the world. This collection seeks both to draw on and to engage critically with the metaphor of war in the context of terrorism. It brings together a group of experts from Australia, Canada, the United Kingdom, France and Germany who write about terrorism from a variety of disciplinary perspectives including international law and international relations, public and constitutional law, criminal law and criminology, legal theory, and psychology and law.

Read on SSRN

Centre: CIPL

Research theme: Military & Security Law

International Aviation Emissions to 2025: Can Emissions Be Stabilised Without Restricting Demand?

Author(s): Andrew Macintosh

International aviation is growing rapidly, resulting in rising aviation greenhouse gas emissions. Concerns about the growth trajectory of the industry and emissions have led to calls for market measures such as emissions trading and carbon levies to be introduced to restrict demand and prompt innovation. This paper provides an overview of the science on aviation's contribution to climate change, analyses the emission intensity improvements that are necessary to offset rising international demand. The findings suggest international aviation carbon dioxide emissions will increase by more than 110 per cent between 2005 and 2025 (from 416 Mt to between 876 and 1013 Mt) and that it is unlikely emissions could be stabilised at levels consistent with risk averse climate targets without restricting demand.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

Forensic Nanotechnology, Biosecurity and Medical Professionalism: Improving the Australian Health Care System's Response to Terrorist Bombings

Author(s):

This chapter explores how medical professionalism in forensic bioterrorist investigations may be influenced by the enhanced surveillance, detection and data storage capacities offered by nanotechnology. It draws on the author's experience treating patients injured in the 2002 Bali bombings.

It is now well accepted that health professionals involved in forensic investigations may experience conflict of interest problems with moral, ethical, legal and human rights dimensions. Physicians acquiring information, for example, about crimes from patients may have to breach ethical and legal obligations of confidentiality in disclosing that information to justice authorities. The professional obligations of physicians involved in forensic investigations extend to the collation of evidence and provision of testimony within an adversarial legal system. Many of these duties have the potential to create dilemmas for a physician's sense of professionalism, which is generally characterised by an emphasis on public service, rather than profit-earning, by an occupation with State-recognised special skill.

Physicians treating terrorist suspects or involved in investigating allegations of massacres, may be assisted in resolving any resultant conflict of interest dilemmas by reference not only to basic principles of medical ethics, but to relevant United Nations guidelines. International humanitarian law is another important source of professional norms by which physicians can calibrate legislation or other obligations to the state requiring their involvement in such areas. It is an aggregation of customary and treaty-based principles and rules concerned with the treatment of wounded, civilians and prisoners in war, and overlapping with many areas of medical ethics. Article 7 of the ICCPR, as well as prohibiting torture or cruel, unusual or degrading treatment or punishment also provides that 'no one shall be subjected without his free consent to medical or scientific experimentation'.

Read on SSRN

Centre:

Research theme: Health, Law and Bioethics

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