B Gogarty

What exactly is an exact copy? And why it matters when trying to ban human reproductive cloning in Australia

This paper examines the current Australian regulatory response to human reproductive cloning. The central consideration is the capacity of the current regulatory regime to effectively deter human cloning efforts. A legislative prohibition on human cloning must be both effective and clear enough to allow researchers to know what practices are acceptable. This paper asks whether the current Australian regime evinces these qualities and suggests that Australia should follow the example set in the UK by the enactment of the Human Reproductive Cloning Act 2001.

Conceptions and (Mis)conceptions of Science in International Treaties; the ICJ Whaling Case in Context

The recent judgment in the International Court of Justice case Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) determined that Japanese ‘special permit’ whaling in the Southern Ocean was not ‘for the purposes of scientific research’. This is the only exemption permitted under the International Convention for the Regulation of Whaling’s current moratorium on commercial whaling. The Court made its determination by characterising the Japanese research program as a scientific program, but failing to define what scientific research actually was or was not. This paper presents the background to the decision, and challenges the reasoning of the Court and its standard of review test. It concludes that the Court failed to take the opportunity to offer a clear determination to states on their legal–scientific obligations within international law.

Glacier geoengineering needs lawyers too

We understand the concerns of Philippe Borsa and colleagues over the New Caledonia government’s plans to open the Chesterfield reefs to ecotourism cruise ships (Nature 558, 372; 2018). In our view as conservation affecting the Antarctic ecosystem properly engage with the ATS from the outset. Antarctic geoengineering proposals would not “require global consent” as Moore et al. state, but instead would need the approval of the 29 consultative parties to the 1959 Antarctic Treaty. The Scientific Committee on Antarctic Research is an important independent contributor to the ATS. However, it is actually the Committee for Environmental Protection (CEP), created by the 1991 Madrid Protocol to the Antarctic Treaty, that formally advises the consultative parties about proposals affecting the Antarctic environment. The Madrid Protocol bans mining and declares Antarctica a natural reserve. We think that the CEP is likely to advise that the “major disturbances to local ecosystems” arising from Moore and colleagues’ proposals — particularly quarrying of local rock and dredging — would infringe Madrid Protocol protections. Geoengineering that affects marine ecosystems might also require separate permission under the 1982 ATS Convention on the Conservation of Antarctic Marine Living Resources. Any discussion of geoengineering in Antarctica needs to preserve and strengthen Antarctic governance, not weaken it. This is a task for international lawyers and policymakers as well as scientists. Brendan Gogarty* University of Tasmania, Hobart, Australia. brendan.gogarty@utas.edu.au *On behalf of 6 correspondents (see go.nature.com/2kjaady for full list). Political pressures on Romania’s research

Scientific whaling and how philosophy of science can help break the international deadlock

ABSTRACT Despite widespread public interest on the topic of whaling, there is at present relatively little work on how philosophy might contribute to analysis of the status of whaling in international law. When philosophers have looked at the topic of whaling, they have confined their attention to a fairly narrow set of ethical questions, such as whether international law should permit certain forms of traditional indigenous whaling or extend legal rights to whales themselves. However, there is another important issue which has so far been largely neglected by philosophy, even though it is at the forefront of current international legal disputes over the status of whaling: the issue of so-called ‘scientific whaling’. This article considers the international legal dispute between Australia, New Zealand and Japan over the latter’s lethal harvesting of whales in the Southern Ocean, and the recent attempt at resolution by the International Court of Justice. On its face, this required that the Court demarcate ‘scientific’ from ‘unscientific’ activity; however, it effectively baulked at this task. The authors argue that this approach of the Court was unfortunate, and that demarcating science from commerce is not only achievable in philosophy, but might also inform international legal practice. Resolving this issue is important for genuine progress to be made in the current international stand-off over Japanese whaling in the Southern Ocean.

Associational Balance of Power and the Possibilities for International Law in the South China Sea

Recent territorial disputes in the South China Sea (SCS) have been viewed as a proxy for wider geopolitical tension between the United States and China. Realist commentators therefore argue that power will be the key driver of outcomes and the likely role of international law is peripheral. Mainstream international law scholarship is ill-equipped to respond to such criticism as it largely marginalises the relationship between law and power. However, some leading historical figures in International Law and International Relations have long argued that an ‘associational balance of power’ between States is an essential pre-condition for the effective operation of international law. We argue that re-enlivening this focus on ‘associational balance of power’ offers new insights into the possibilities for international law in the SCS. We therefore recommend an interdisciplinary research program across the fields of International Law and Strategic Studies aimed at facilitating rule-based resolution of disputes in the SCS.

Binding the Monolith: Can State Tribunals Still Hold the Commonwealth to Account Following Nichols’ Case?

This article discusses the Full Court of the Federal Court decision of Commonwealth of Australia v Anti-Discrimination Tribunal, in particular Justice Kenny’s finding that a state tribunal lacked sufficient “institutional arrangements and safeguards” to exercise federal judicial power. Justice Kenny’s finding, and its recent endorsement by the High Court in K-Generation v Liquor Licensing Court marks a shift in judicial attitudes towards courts of state, by requiring a much higher standard of independence and impartiality than in the past. Subsequently, we argue that legislatures across Australia must choose to either strengthen these aspects of their decision-making bodies – especially if they wish to bind Commonwealth instrumentalities – or simply accept that they will no longer be acceptable repositories of federal judicial power.