Sovereignty

'The Developing Concept of Sovereignty: Considerations for Defence Operations in Cyberspace and Outer Space' by Dan Jerker B Svantesson, Rebecca Azzopardi, Wendy Elizabeth Bonython, Jonathan Crowe, Steven R. Freeland, Samuli Haataja, Danielle Ireland-Piper and Nathan Mark offers important insights regarding sovereignty, with an incisive analysis of sovereignty in the cyber and outer space spheres.

 The introductory chapter considers literature pertinent to the debate to show why it is important for Defence and policy planners to considering sovereignty in a Defence context. Chapter Two provides a critical analysis of the concept of sovereignty, how it has developed and how the concept may be constructed, informed by recent and ongoing critical debates. Chapter Three considers how the concept of sovereignty may apply in the emerging domain of cyberspace, with Chapter Four considering sovereignty’s application to the space domain. Chapter Five provides some concluding thoughts and recommendations for future consideration. 

Each chapter may be considered as a standalone document for members of an interest-specific audience.

Space Governance

'Polycentric Governance in Global Affairs: The Case of Space Governance' by Eytan Tepper comments

This paper analyses the nature and architecture of space governance and asserts that in order to break from decades-long gridlock, it should become polycentric. The paper further refutes contentions that space governance is or should be based on space being ‘the province of all mankind’, the ‘common heritage of mankind’ or ‘global commons’. The first two decades pursuant to the launch of the first Earth artificial satellite, Sputnik 1, saw the successful introduction of a monocentric governance system, with several widely accepted space law treaties and dedicated UN organs. However, the initial success was followed by decades-long paralysis in the dedicated UN committee, leaving even the pressing challenges insufficiently addressed. There is widespread acknowledgement of the need for change, but not on how to accomplish it. This paper suggests that only a shift in the architecture of space governance to a decentralized system may enable continuous evolution thereof to meet the changing needs and opportunities of space exploration and utilization. The paper compares three versions or conceptualizations of decentralized governance - international relations’ concept of a ‘regime complex’, political economy/institutional analysis’ concept of ‘polycentric governance’, and international law’s concept of ‘fragmentation’ - and suggests cross-disciplinary convergence. Analysis of the literature on these concepts demonstrates that, under the constraints of an anarchic international society, decentralized governance is inevitable and advantageous. Moreover, Elinor Ostrom's Nobel winning study provided strong empirical proof supporting polycentric governance of complex economic systems and emphasized the central role of users/stakeholders in governance. A polycentric governance system is one in which there are multiple independent decision-making centers (‘governance centers’), with at least partial overlap in jurisdictions. The advantages of decentralized governance can be maximized, and its adverse effects mitigated if Ostrom’s ‘design principles’ for robust governance systems are met, if institutional deference is practiced, and possibly if global administrative law, or the law of global governance, are applied. The paper concludes that the only way forward is by space governance becoming polycentric, allowing decentralized, incremental evolution of space governance. This means, in practice, that a separate forum for each specific issue (e.g. militarization, space traffic control), led by stakeholders and experts, and with the active participation and coordination of the UN office of space affairs, would create rules for that issue, and possibly monitor their application. The aggregate of all these rules and forums will be a more comprehensive, flexible, and updated governance system than a monocentric system of global governance can yield. In fact, space governance is already on track to become polycentric, as stakeholders and experts establish forums that suggest, adopt or push for rules and standards. Embracing and facilitating polycentricism and diverting more governance-building efforts in this direction, while mitigating its adverse effects, would enhance space governance and thereby space exploration by states and nonstate actors alike.

Brexit and Aviation Exits

'Brexit and the British Bill of Rights' by Tobias Lock, Tom Daly, Ed Bates, Christine Bell, Kanstantsin Dzehtsiarou, David Edward, Murray Hunt, Kagiaros Dimitrios, Fiona de Londras, Cormac Mac Amhlaigh, Christopher McCrudden and Anne Smith considers 'the mechanism and consequences of the United Kingdom’s exit from the European Union (‘Brexit’) and the plan to establish a British Bill of Rights'.

Its key points are:

• The issue of consent regarding the initiation of Article 50 of the Treaty on European Union (TEU) to formally trigger the Brexit process under EU law is highly complex, relating to five cross-cutting dimensions: 

  (i) the involvement of the UK Parliament in the Brexit negotiations; 

  (ii) the consent of the Norther n Ireland Assembly to Brexit; 

  (iii) the consent of the Scottish Parliament; 

  (iv) the need for unanimous agreement by all EU Member States should the UK wish to reverse the triggering of Article 50; and 

  (v) the possible need to obtain the consent of the Republic of Ireland to Brexit as a fundamental alteration of the Good Friday Agreement. 

• Brexit presents a clear reduction in formal protection of fundamental rights in the UK through discontinued application of the EU Charter of Fundamental Rights and Freedoms; 
• Whether this reduction in rights protection can be addressed by other measures at the national level, particularly the inclusion of ‘lost’ EU Charter rights in a British Bill of Rights, is questionable; 
• Brexit, a BBR, and other related policy pledges seeking to reduce the application of international human rights law to UK actors, taken within the current context and their likely consequences, represent a weakening of the human rights protection framework as a whole – a certain ‘disentrenchment’ of human rights, reversing the decades-long trend toward incremental expansion in the right protection afforded to individuals across the UK. 
• Various existing government policy proposals aimed at ‘freeing’ the UK from intervention of the European Court of Human Rights appear to be rooted in misconceptions concerning the nature of the ECHR and international human rights law more generally. 
• Regarding plans to repeal the Human Rights Act (HRA) and its replacement by a British Bill of Rights (BBR), this would not free the UK from its obligations to comply with the judgments of the European Court of Human Rights in cases where the UK is a respondent party. In fact, it might lead to an increase in the number of successful applications to the Strasbourg Court, diminish the possibility for meaningful dialogue between the Strasbourg Court and the British courts, and thereby amplify rather than lessen the impact of Strasbourg case-law. The only viable way to remove such obligations is for the UK to denounce (leave) the European Convention on Human Rights (ECHR). 
•  Repeal of the HRA, its replacement with a BBR, and other related policy pledges seeking to reduce the application of international human rights law to UK actors, all ultimately appear to set a path toward withdrawal from the ECHR.
• In this connection, it was noted that UK withdrawal from the ECHR system would be likely to lead to withdrawal from the Council of Europe, which would significantly undermine the UK’s reputation as a state that cares about human rights protection. The UK would be only the second country in Europe which is not a member of the Council of Europe; the other being Belarus with its very problematic human rights record.
• Withdrawal by the UK would rep resent the first time a long-established Western democracy has left a major international human rights regime. Such a move would place the UK in the company of Greece under military rule in December 1969, when it left the ECHR system and Council of Europe, or more recently, Venezuela under Hugo Chávez, which denounced the American Convention on Human Rights in 2012 in order to leave the jurisdiction of the Inter-American Court of Human Rights. 
• Brexit poses real threats to the fragile peace in Northern Ireland, given that EU membership is central to the Good Friday Agreement, and given that EU law is dominant in areas that are clear ‘flash points’ for discord between the parties in the consociational government, such as equality legislation. 
• Plans for repeal of the HRA, its replacement by a BBR, and other related policy pledges, pose threats not only to rights protection in the UK, but also to the rights protection (albeit limited) provided by the ECHR system in other states of the Council of Europe, given that UK withdrawal from the ECHR would be likely to trigger withdrawal by other states, such as Russia and Azerbaijan. 
• The most fundamental conclusion from the workshop is that the current governmental approach to Brexit and a British Bill of Rights does not adequately appreciate, or address, the extraordinary complexity of human rights protection in the UK, which enmeshes protections across the international, EU, State, devolved, and bilateral planes. Until, and unless, policy formation begins to fully grapple with this complexity, serious rule of law and legitimacy questions will hang over the solutions presented by the Conservative government to the current constitutional entanglement.

The Airport and aviation security report by Senate Rural and Regional Affairs and Transport References Committee notes concerns regarding the Aviation Security Identification Card, including claims that 20% of airport staff with access to aircraft have criminal convictions (half of those being for serious crimes such as drug trafficking and assault).

It states

Chapter 2 examines the numerous reports and inquiries undertaken since 2002 investigating airport security issues, and the responses and actions that have been implemented following these reports. Of particular interest to the committee is the progress and implementation of the 2005 Wheeler Review recommendations. 

Chapter 3 examines a number of serious issues around passenger security screening at airports that emerged from evidence received as part of the inquiry, including the use of subcontractors for screening services at airports. It also considers reports regarding security systems in place at Sydney Airport, including potential vulnerabilities in Australia's aviation security framework. 

Chapter 4 examines matters arising from the Seven Network television report on aviation security that led to the referral of this inquiry. In particular the chapter considers whether the FOI process that informed part of the media reports led to a decrease in the voluntary reporting of security incidents to the department by industry stakeholders. . 

Chapter 5 considers the Aviation Security Identification Card (ASIC), the numerous reviews and reforms undertaken of the scheme, and potential shortcomings of the card, with impacts on airport security. This chapter also examines the related Visitor Identification Card (VIC) and issues with this program. 

Drawing on the evidence received by stakeholders and obtained by the committee as part of its inquiries, Chapter 6 considers the current programs underway to secure Australia's airports, and possible future areas for improved security measures. It evaluates whether, in light of incidents reported in the media and through   various reviews of airport security, the current security framework is adequate. It also considers the costs that may be involved in amendments to that framework.

The Committee recommends that

• any future reviews of and amendments to aviation security regulation be risk-based and fit for purpose, with consideration given to the unique challenges faced by regional and rural airports and the overall diversity of Australian airports. 
•  the Inspector of Transport Security complete and publish its review into aviation security training and education as soon as practicable. 
•  the Department of Infrastructure and Regional Development develop a framework to ensure that subcontracted screening bodies have appropriate employment standards and provide security training and services consistent with those provided by screening authorities under the Aviation Transport Security Regulations 2005. The framework should take into account any inconsistencies in the training and education as identified by the Inspector of Transport Security. 
•  the Australian Government amend the Aviation Transport Security Act 2004 to make it compulsory for aviation industry participants to report information currently captured under the voluntary reporting scheme. 
•  the Australian Government review the feasibility of establishing a centralised issuing authority for Aviation Security Identification Cards. 
•  the Australian Government consider the development of a national automatic notification system for aviation-security-relevant offence convictions of Aviation Security Identification Cards holders. 
•  the Department of Infrastructure and Regional Development update the committee early in 2018, on progress and outcomes, following implementation of Stage Two of the Visitor Identification Card enhancements.
•  the Australian Government consider mechanisms, including legislative amendment, to strengthen the Visitor Identification Card process, incorporating appropriate background checking where appropriate. 
•  the Australian Government implement the regional aviation security awareness training package, in accordance with its 2015 commitment. 

Senator Xenophon commented

The inquiry drew out a number of issues in relation to aviation security. 

The first of these issues relates to security screening of passengers as they enter the airport. Evidence was presented to the committee that shows that current screening does detect contraband, but that there are holes. Examples were provided of prohibited objects discovered after passengers had boarded planes; objects including knives, tools (such as screwdrivers and pliers), scissors and box cutters, pepper spray, tasers and bullets. Problems identified by the committee in respect of screening included screening processes, the use of subcontracted security staff and inadequate staff training. Mr Kessing indicated that screening also lacks appropriate intelligence analysis, which has served other countries well. 1.10 The second issue relates to mandatory and voluntary reporting of ‘unlawful interference’ with aviation safety. The committee was presented with evidence to show that some in industry had a reluctance to make voluntary reports. 1.11 The third issue relates to the issuing and use of ASICs and VICs. The evidence provided to the committee, particularly the evidence of Mr Kessing, showed significant problems in relation to the ASIC and VIC vetting process – with up to 20 per cent of all non-Customs staff (i.e. baggage handling, cleaners, screening staff, aircraft catering etc.) with access to the sterile areas having criminal convictions, and about half of those were serious convictions, including drug trafficking, assault and the other misdemeanours. The vetting process is decentralised and has no notification scheme for an ASIC holder who may have been subject to a conviction after the card has been issued. /

Identity Offences

In looking at yesterday's arrests over fake identities and allegations of $7m 'insider trading' (an employee of the Australian Bureau of Statistics allegedly feeding an associate with early access to business data) I'm reminded of recent prosecutions of people using what the mass media dub 'fake names' for domestic air travel.

In February last year a 29 year old man "allegedly travelling under a false name" was arrested at Brisbane Airport by Australian Federal Police, having flown from Perth with an intended destination of Rockhampton.

The AFP media release at that time stated

As part of routine airport patrol operations, the man’s identification was checked by AFP officers and was found to be different to the name listed on his travel documentation. 

Recent changes to legislation [noted here] make it a criminal offence to travel under a false name and this arrest is the first arrest relating to these offences. 

The legislation came into force on 28 November 2012 following recommendations made by the 2011 Parliamentary Joint Committee on Law Enforcement’s Inquiry into the Adequacy of Aviation and Maritime Security Measures  [noted here].

The man was charged with the following offences:

Taking a flight using an air passenger ticket in a false name – an offence under Section 376.4(2) Criminal Code Act 1995.

Using false information to obtain an air passenger ticket – an offence under Section 376.3(1) Criminal Code Act 1995.

AFP National Manager Aviation Shane Connelly said that passengers should be aware that officers randomly check identification at airports. 

“Our airport officers will uphold Australian law in respect to persons travelling or attempting to travel with false documentation at all of Australia’s major domestic airports,” Assistant Commissioner Connelly said. “The new legislation makes it a criminal offence to both buy a ticket under a false name and to use a ticket under a false name.” 

It isn't, of course, an offence to travel by train or bus or ferry using another name (subject of course to the ticket being legitimately obtained rather than, for example, through unauthorised use of someone's credit card).

In March this year a 23 year old man was charged with travelling under false identification documents.

The man was arrested today while AFP officers were conducting routine patrols around the departure gates at Cairns Airport domestic terminal. 

The man had attempted to board a flight to Brisbane when airline staff identified that he was travelling under false documentation. Airline staff refused to accept the passenger. 

The matter was referred to the AFP and police enquiries commenced. The man was arrested and charged with the following offences:

False identification information – air passenger tickets obtained using a carriage service, contrary to section 376.3 (1) of the Criminal Code Act 1995. 

Carriage Service Offence – taking a flight using an air passenger ticket, contrary to section 376.3 (2) of the Criminal Code Act 1995.

Airport Police Commander Cairns Airport Glen Fisher said that passengers should be aware of random identification checks. “Passengers are reminded that it is an offence to both buy a ticket under a false name and to use a ticket under a false name,” Superintendent Fisher said. The maximum penalty for these offences is 12 months imprisonment.

 In the ABS case the alleged trader in Melbourne (an employee of the NAB) was charged with

One count of conspiracy to engage in insider trading, pursuant to section 11.5 of the Criminal Code Act 1995 (Cth), which is an offence by virtue of sub-section 1311(1) of the Corporations Act 2001 (Cth) in that they contravened paragraph 1043A(1)(c) of the Corporations Act 2001 (Cth). 

One count of giving a bribe to a Commonwealth public official, with the intention to influence the official in the exercise of his duties as a Commonwealth public official, contrary to section 141.1(1)(a)(iii) of the Criminal Code Act 1995 (Cth); 

Three counts of insider trading, by trading in foreign exchange derivatives whilst in possession of inside information not generally available to the public, contrary to sections 1043A(1)(c) and 1311(1) of the Corporations Act 2001 (Cth); 

One count of dealing in identification information using a carriage service and dealing with that identification information, with the intention to use the identification information to pretend to be or to pass themselves off as another person for the purpose of facilitating the commission of an offence, contrary to section 372.1A(1) of the Criminal Code Act 1995 (Cth). 

One count of dealing in proceeds of crime, money or property worth AU$1,000,000 or more, contrary to section 400.3(1) of the Criminal Code Act 1995 (Cth).

 The ABS employee was charged with -

One count of conspiracy to engage in insider trading, pursuant to section 11.5 of the Criminal Code Act 1995 (Cth), which is an offence by virtue of sub-section 1311(1) of the Corporations Act 2001 (Cth) in that they contravened paragraph 1043A(1)(c) of the Corporations Act 2001 (Cth). 

One count of receiving a bribe as a Commonwealth public official, contrary to section 141.1(3)(a)(iii) of the Criminal Code Act 1995 (Cth); 

One count of abuse of public office to dishonestly obtain a benefit, contrary to section 142.2(1)(b)(i) of the Criminal Code Act 1995 (Cth); 

One count of dealing in proceeds of crime, money or property worth $10,000 or more, contrary to section 400.6(1) of the Criminal Code Act 1995 (Cth).

Space Junk

'An Inference about Interference: A Surprising Application of Existing International Law to Inhibit Anti-Satellite Weapons' by David A. Koplow in (2014) 35 University of Pennsylvania Journal of International Law states that it

presents a thesis that most readers will find surprising, in an effort to develop a novel, simultaneous solution to three urgent, complex problems related to outer space. The three problems are: a) the technical fact that debris in outer space (the accumulated orbital junk produced by decades of space activities) has grown to present a serious hazard to safe and effective exploration and exploitation of space; b) the strategic fact that many countries (notably the United States, China and Russia, but others, too) continue to demonstrate a misguided interest in pursuing anti-satellite weapons, which can jeopardize the security of space; and c) the political fact that attempts to provide additional legal regulation of outer space (via new bilateral or multilateral international agreements) have failed, with little prospect for prompt conclusion of meaningful new accords. 

The proposed solution is to adapt existing international law in an unforeseen way. Specifically, numerous current and historical arms control treaties provide for verification of parties’ compliance via “national technical means” (NTM) of verification, which prominently include satellite-based sensory and communications systems. These treaties routinely provide protection for those essential space assets by requiring parties to undertake “not to interfere” with NTM. The argument developed here is that additional tests in space of debris-creating anti-satellite weapons would already be illegal, even without the conclusion of any dedicated new treaty against further weaponization of space, because in the current crowded conditions of space, a new cloud of orbital debris would, sooner or later, impermissibly interfere with NTM satellites. 

If sustained, this thesis can provide a new rationale for opposition to the development, testing, and use of anti-satellite weapons. It a legal reinforcement for the political instincts to avoid activities that further undercut the optimal usability of outer space, and it demonstrates how creative re-interpretation of existing legal provisions can promote the advancement of the rule of international law, even in circumstances where the articulation of new treaties is blocked.