The College's public lecture and seminar series is now drawing a crowd of regular attendees. A diverse range of presentations have been offered over the last six months, covering the future of diplomacy, UN reforms, diplomats of distinction and regional issues.

Professor Brian Hocking's visit to the APCD was very much enjoyed by all those who attended his public lecture on The End(s) of Diplomacy and his two workshops on Multistakeholder Diplomacy .

Professor Hocking is Director of the Centre for the Study of Foreign Policy and Diplomacy at Coventry University . His two-day schedule was hectic at the APCD but Professor Hocking's good humour and meticulous presentations were appreciated and hopefully he will return for another less demanding visit.

Professor Ramesh Thakur returned to the APCD to deliver another well-received lecture which was co-hosted with the Centre for Arab and Islamic Studies of the ANU. This time, his topic was UN reforms and the use of force: The Secretary-General's report .

Professor Thakur is Assistant Secretary-General of the United Nations and Senior Vice Rector of the United Nations University (UN) in Japan . His presentations are proving to be a favourite with the Canberra diplomatic and public community.

Dr Derek Drinkwater gave an entertaining insight into Sir Harold Nicolson … and much more in a public seminar about a diplomat whose views about international relations and diplomacy continue to be relevant today.

Associate Professor Shankari Sundararaman from Jawaharlal Nehru University also delivered a timely and interesting public seminar outlining the challenges within ASEAN and the implications for India 's Look East Policy

If you wish to be notified of the College's upcoming activities, please email your contact details to the following address ExecutiveOfficer.APCD@anu.edu.au.

Internationalisation, Criminalisation and a Fair Go

The media has tended to focus on the fairness of the trial of Schapelle Corby in Bali , highlighting the absence of the jury and the reversal of the burden of proof. These both seem unfair in cases involving such serious charges. The absence of a jury is the most obvious difference between the Australian and Indonesian systems, though it is important not to overstate its significance.

Even in our Australia system, most defendants plead guilty. Trials are in fact rare with trial by jury being even rarer – some alleged traffickers opt for ‘trial by judge alone' sensibly concerned about juror prejudice against drugs and drug users. Like the Indonesian criminal law, drug offences under Australian law use a range of deeming provisions that dispense or reverse the burden of proof in relation to key elements of the offence, including the prosecution's burden to prove knowledge or intent on the part of the accused.

Trafficking commercial quantities of drugs into Australia also carries life imprisonment. There is no doubt Indonesian citizens found in Corby 's shoes here, would be facing a serious stretch of imprisonment following conviction. While the death penalty in Indonesia is certainly a matter of general concern for human rights lawyers, many jurisdictions, including the United States , continue to execute individuals found guilty of serious offences.

The drug trafficking offences under which Corby was convicted derive from a range of treaties enacted to combat trafficking including the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988). Countries that are signatories (include Indonesia and Australia ) are obliged to enact laws that criminalize these behaviours in similar terms and to cooperate in law enforcement activities. How state parties interpret these obligations, and translate them into domestic law, are subject to their own constitutional principles and the basic concepts of its legal system.

The Corby case suggests that the AFP and Indonesian police are engaged in extensive cooperation to bring drug traffickers to justice in their respective jurisdictions. A suspect who is Australian (or indeed any other nationality) who imports drugs into Indonesia should be prosecuted in Indonesia , which is after all is the ultimate target of the trafficking. If the position were reversed, Australians would want to prosecute an Indonesian citizen found in possession of traffickable quantities of drugs at an Australian airport here. Australian citizens do not have a right to be tried for overseas offences at home!

Much of the controversy over Corby's conviction stems from a concern about the quality of justice received, and relatively leniency afforded by that system to the Bali bombers. Before Australians start slinging mud at the Indonesian criminal justice system, we need to take a ‘hard look' at the fairness of our own system.

Indeed, the Indonesian legal system has taken huge leaps forward in terms of establishing a culture of judicial independence in recent years. Indonesia has adopted an entrenched Bill of Rights. Australia has still has no national Bill of Rights notwithstanding that most common law systems, including the United Kingdom, now have one. Indeed, we should not assume that the Constitutional Court of Indonesia does not know how to use a Bill of Rights, and that Corby won't receive a ‘fair go' in that system.

The strength of their new system of rights protection was seriously tested in July 2004, when the Constitutional Court set aside the convictions imposed on Bali bombers on the grounds that the terrorism offences under which they were convicted had been enacted after the bombings, therefore violating the prohibition on criminal legislation having retroactive effect.

To many Australians, this seemed unfair to the victims and evidence of bias. This fails to understand the function and importance of upholding human rights in the criminal justice system, even for the benefit of most unpopular and reviled within our society.

The Constitutional Court did not suggest that the bombers were morally or legally ‘innocent'. Rather it held that guilt can only be judged under valid laws that existed at the time of the commission of the offence – prosecutors could have avoided this problem by simply prosecuting the bombers under murder rather than terrorism offences.

As this reveals, a Bill of Rights can operate to place limits on legislative over-reaction following devastating terrorism attacks. Like Indonesia , in the wake of the Bali bombing that killed 88 Australians on 12 October 2002 , the Federal Parliament inserted into the Criminal Code (Cth) a new category of offences called “Harming Australians”.

This covers a range of extra-territorial offences including murder, manslaughter and causing serious injury to Australian citizens or residents. The most serious offence, murder of an Australian citizen or a resident, adopts the maximum penalty of life imprisonment: s 104.1 Criminal Code (Cth). These offences are intended to have retrospective effect to apply to the Bali Bombers, operating retrospectively from 1 October 2002 . In Australia , without a Bill of Rights, there are no constitutional limitations on using retrospective criminal laws should the bombers be amenable to prosecution here – which, in light of recent events straining relations between Indonesia and Australia , seems highly unlikely!

The Australian and Indonesian legal system share similarities and differences. Australians must be balanced in our assessment of the strengths and weaknesses of the respective systems, recognising that international cooperation in matters of criminal law raises many challenges.

In our desire to fight crime on the international as well as local level, we must ensure that suspects, however serious the alleged offence, must receive a ‘fair go', that human rights, in particular the right to a fair trial, must be scrupulously observed in trials both in Australia and Indonesia.

Simon Bronitt is a Professor of Law and Director of the National Europe Centre at The Australian National University . His current research interests are terrorism and transnational crime

I am a junior member of staff in the Ministry of Foreign Affairs, Taiwan , which I joined after five years working in law in Taipei . I took part in seminars in the APCD course on Negotiation and Conflict Resolution as this topic is relevant to my work. I wanted to learn about conflicts and how to resolve them.

I chose to participate in activities of the College because of its focus on issues and developments in the Asia-Pacific region. I especially enjoyed the seminars given by current or former diplomats sharing their personal experience in negotiating and dealing with difficult situations.

The mix of students from different countries contributed to different opinions, providing a very interesting perspective of the various issues discussed in class. Meeting students who were professionals from their own countries was a highlight.

I hope I can help to improve Taiwan 's relations with countries in the region using the scholarly knowledge I gained at the APCD and the ANU.

Rabkin, Jeremy A. 2005. Law Without Nations: Why Constitutional Government Requires Sovereign States . Princeton , NJ : Princeton University Press, 350 pp. ISBN 0691095302

Law without Nations? is a racy read. Author Jeremy Rabkin, professor of political science at Cornell University, is known here through his columns in The Australian and this book is of a similar genre: confident, uncompromising and tendentious. The book is the product of a peculiarly American mindset, one that is suspicious, even resentful, of an international order that claims supra-national legitimacy. This approach has waxed and waned in popularity, but it is now a strong feature of American political life. Rabkin's mission is to explain “why American constitutional traditions make it hard for the United States to embrace schemes of global governance which find so much favour in other countries” (p 16). His attack on the international legal order is much broader, however.

Every good story needs a villian: Rabkin's main stalking horse is Europe and Europeans - they are presented in a one-dimensional manner, as an homogenous unit, the symbol of everything that is un-American. “Europeans” we are told “scoff at sovereignty”, a curious observation in the light of the recent failed attempts at closer integration. Another set of scoundrels for Rabkin is international lawyers, particularly human rights lawyers, who peddle irresponsible utopian mythologies about world law: they are invariably described as “enthusiasts” or “crusaders”, unwitting allies of the worst dictators.

Rabkin's beef with international law is that it purports to apply universally and does not distinguish between democracies and dictatorships. International law might be a useful tool to push dictatorships to mend their ways, but democracies of the west do not need such oversight, indeed it is antithetical to their democracy.

The problems with Rabkin's sweeping account of the international order are well-illustrated by his analysis of the 2003 invasion by Iraq , led by the United States . The invasion is presented as a no-brainer, opposed only by “European conceit” and hypocritical adherence to human rights norms. The Iraq war is described as “lightning”, “with very few casualties”. This view sits oddly with what we know about the still-unfinished war, with over 25,000 casualties to date (perhaps Rabkin was only counting deaths among coalition of the willing forces). Rabkin pays no attention to the crucial role the UN was called upon to play in the wake of the war in Iraq precisely because of the lack of legitimacy of the invasion. For all Rabkin's devotion to sovereignty, sovereignty appears sacrosanct only for the United States : paradoxically, other countries' sovereignty can be swept aside as the United States pursues its own interests.

Rabkin's views have been influential in Australia . Our participation in the Coalition of the Willing in Iraq has been justified with Rabkin-style arguments. Indeed he praises our government's hostility towards the UN (pp 251-2) as a sign of our political maturity. Rabkin does not comment however on Australia 's acceptance of the jurisdiction of one of his bêtes noirs , the International Criminal Court.

Law without Nations? is a very readable statement of American exceptionalism. It is connected to both the realist tradition in international relations and the positivist school in international law. Its categorical analysis undermines its scholarly value however and leaves the reader craving a more nuanced and complex story

Hilary Charlesworth
Professor, Centre for International Justice and Governance,
Regulatory Institution Network, ANU

Major General Mike Smith brings an unusual and valuable perspective to his role as a member of the APCD's Advisory Board. Mike is currently the Chief Executive Officer of a humanitarian NGO, AUSTCARE, but before that he was, as his title indicates, a senior member of the Australian Defence Force. He has served as a Defence Attache in Cambodia , as a military observer with the United Nations Military Observer Group in India and Pakistan and as Deputy Force Commander in the UN Transitional Administration in East Timor .

In addition Mike is author of Peacekeeping in East Timor: The Path to Independence (2003) and he frequently lectures to university audiences. Recently he participated in the College's Master of Diplomacy course as an expert commentator on the student's research presentations on the East Timor intervention.

Mike's views about the role of NGOs are important to the College. As he explains, ‘NGOs are influential not only for their role in advancing human rights and promoting human security, but also because sometimes it is easier for them to be flexible and effective negotiators. The issue of landmines is one example: it is easier for NGOs to negotiate with non-state actors which governments do not want to and/or are unable to recognise'.

His own organisation AUSTCARE focuses on mobilising support for displaced people and post-conflict and disaster reconstruction. For example, recently AUSTCARE has been a major contributor to relief in Aceh and Sri Lanka following the tsunami.

Mike sees the College making a valuable input to NGOs, not least of which is its capacity to nurture and encourage its students to join various humanitarian organisations.

The College recently welcomed its first international Visiting Fellow, Dr Shankari Sundararaman from Jawaharlal Nehru University (JNU) in India .

The Visiting Fellows Program at the Asia-Pacific College of Diplomacy supports local and international scholars wishing to undertake research in diplomacy at the ANU, in accordance with the College's aim to promote research, dialogue and education in transnational diplomacy, negotiation and conflict management.

The Program aims to have 5-6 visiting scholars at the College per year.

The College supports Visiting Fellows with full and partial grants, which can cover accommodation and air fares, and also welcomes self-funded fellows with full fellowship privileges. Visiting Fellows are encouraged to participate in the world-class academic community at ANU and consult with other scholars and researchers at ANU.

Shankari is an Associate Professor at the Centre for South, Central, Southeast Asian and Southwest Pacific Studies of the School of International Studies at JNU, where she teaches Southeast Asian studies.

Shankari says that a highlight for her during her fellowship at the College has been to meet so many new colleagues with whom to share ideas and thoughts on the region. She is confident that these friendships will be maintained across the continents, wherever she may be located.

During her time in Australia , Shankari also received news that she had been awarded the ASIA Fellows Award for 2005-06. As part of this, she is expecting to be based at the Centre for Strategic and International Studies (CSIS), Jakarta as a Visiting Fellow later this year.

Her research at CSIS will focus on globalisation and plural societies, using Indonesia as a case study.

Pauline Kerr & William Maley, ‘Trends and Options in Transnational Policy: A Conference Report', Australian Journal of International Affairs , vol.59, no.1, March 2005, pp.19-23

William Maley, ‘The Future of Political Islam in Afghanistan ', in Shahram Akbarzadeh and Samina Yasmeen (eds), Islam and the West: Reflections from Australia ( Sydney : UNSW Press, 2005) pp.77-92

William Maley, ‘Political Transitions and the Cessation of Refugee Status: Some Lessons from Afghanistan and Iraq ', Law in Context , vol.22, no.2, April 2005, pp.156-186

William Maley, ‘The United Nations and the Humanitarian Imperative: Some Challenges, in Tony Coady and Michael O'Keefe (eds), Righteous Violence: The Ethics and Politics of Military Intervention ( Melbourne : Melbourne University Press, 2005) pp. 183-193.