Melbourne Law School - Theses
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ItemInternational law, economic liberalization, and the movement of natural persons( 2007)The movement of natural persons constitutes one of the modes of supply for services identified under the General Agreement on Trade in Services (`GATS'). However, entry regulations have been recognised as a major barrier to such movement. Proponents of strict visa requirements often justify their position by invoking the sovereign right of states to adjudicate the entry of foreigners into their territory to protect the welfare of their society. Highlighting the cumbersome nature of procedures for the application and processing of these visas through an examination of the immigration laws of the US, Britain, Germany, France, Canada, and Australia, this thesis argues that the administration of that right in an unreasonable, subjective and discriminatory manner is inconsistent with Members' specific commitments on Mode 4 and the provision of art VI(1) of the GATS. It is argued that the general and security exceptions embodied in arts XIV and XIV bis of the GATS should not be seen as allowing Members the right to adopt any measure they wish domestically, even if it is welfare-related, to regulate the movement of natural persons. Such an interpretation could render unenforceable the specific commitments and relevant WTO obligations on Mode 4 of service supply. The thesis further suggests that the psychological nature of the barrier on the movement of natural persons from developing to developed countries may not be given expression through legal reasoning. In order to support this argument, a case study of Australian business visa requirements will be offered to give an account of the administration of the sovereign's right to adjudicate the entry of the foreigner at the moment of the encounter between the foreigner and the host. The host (abuses) his or her right to interrogate the foreigner to establish the foreigner's `genuineness', by, asking questions for which honest answers are not easy to provide. This encounter will be discussed through engaging with Jacques Derrida's reading of Immanuel Kant's right to hospitality. The findings of this research can prove significant given that the impasse on the liberalisation of the movement of natural persons was one of the difficulties that resulted in the collapse of the Doha Development Round of multilateral trade negotiations.
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ItemThe compliance of the United States of America with the TRIPS retransmission regime( 2002)This thesis seeks to answer one central question: do the US cable and satellite retransmission statutory licences comply with the TRIPS minimum standard? When solving a legal problem, law is applied to a set of given facts to yield an outcome. In solving the legal problem set out above, the "Iaw" is provided by TRIPS, in particular the incorporated article 11bis from the Berne Convention. It provides that national Iaw must recognise in copyright owners an exclusive right to authorise the retransmission of works included in broadcasts, when a party other than the original broadcaster does the retransmission. However, it also permits that exclusive right to be limited (such as by a statutory licence) so long as copyright owners are at least assured of a right to "equitable remuneration". The "facts" are the US cable and satellite retransmission satellite licences themselves, which are found in sections 111, 119 and 122 of the US Copyright Act 1976. The "outcome" to the problem is a conclusion whether these provisions comply with or violate TRIPS. As with most legal problem solving, the resolution of ambiguity provides the challenge. In this regard, by far the greatest challenge is created by the use of the term "equitable remuneration" in Berne article 11bis. Resort will be had to not only the drafting history of the Berne Convention, but also to the discipline of economics and to the field of restitutionary monetary awards in common Iaw countries, to seek to provide a meaning for that term. Another ambiguity relates to the very nature of the retransmission right, in particular, whether the right includes retransmissions to members of the public for which the primary broadcast was intended. Reference will be made to the provision's drafting history to seek to clarify this matter. Further ambiguity arises in the relationship between Berne article 11bis and TRIPS article 13, the latter which makes the general "three-step test" applicable to copyright "limitations or exceptions" to exclusive rights under TRIPS. Finally, the US retransmission statutory licences themselves are arcane and present challenges to an understanding of both their provenance and their current operation. In order to apply the international retransmission copyright norm to the US requires a detailed exposition of these statutory licences.