Tag Archive | "Australia"


Tobacco Trademarks in Peril: Australian Courts Can’t Be Bothered


See: IP Magazine

The unreasonable expropriation of intellectual property or the advancement of public health? This was the question posed by Philip Morris Asia Limited v. The Commonwealth of Australia.

In 2011, Australia passed its “plain packaging legislation,” creating restrictions on the fonts, size, colors, and location of tobacco brand marks on product packaging. The legislation also requires enlarged health warnings and creates limitations on the quantity and color of cigarette products per package. Needless to say, tobacco companies across the world were outraged.

Philip Morris Asia (“PM Asia”), a Hong Kong corporation, owns Philip Morris Australia (“PM Australia”) and PML, both incorporated in Australia. PML owns a whole slew of tobacco trademark licenses that were negatively impacted by Australia’s plain packaging legislation. PM Asia brought suit under the 1993 Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments (“BIT”). Its primary argument was that the legislation’s trademark limitations unreasonably expropriated the value of PM Asia’s investments in Australia. The Commonwealth responded with a thoughtful and solid justification for its legislation as a means to protect the public health of its citizens. The government also convincingly alleged that PM Asia was likely abusing its power under the BIT, in light of its awareness of Australia’s ongoing efforts against tobacco sales. So who has the more convincing argument?

On the procedural front, this case most favorably leans towards Australia. PM Asia had the ability to consider any potential economic impacts to its business prior to its acquisition of PM Australia and PML given its awareness of Australia’s ongoing efforts against tobacco sales.  It, therefore, cannot argue that its intellectual property or the value of its Australian investments has been expropriated due to the plain packaging legislation. This prior knowledge will likely be seen as an abuse of power under the BIT.

But in a broader sense, it’s worth questioning whether Australia is overreaching its bounds as a regulator by unreasonably inhibiting consumer choice. Is it reasonable for a government to dictate the consumption of social vices by its citizens?

To begin purely in the realm of philosophy, on one end of this dispute is the claim that such vices (e.g., gambling, alcohol, tobacco) exist in the market simply because there is a demand for it. If citizens want to consume such products and/or services, that is their choice, and governments should not inhibit the free will of its citizens. On the other end of the spectrum is the contention that the government was created for the sole purpose of enhancing the quality of its citizens’ lives by creating order, a system of checks and balances, levying taxes, and providing social welfare services. Vices such as smoking inhibit citizens’ quality of health. Furthermore, private corporations solely concerned with profits will do whatever is necessary, by way of catchy advertising and alluring products, to exploit the weaknesses of human character. It is, therefore, the government’s responsibility to protect the citizenry from such deceit through legislation like the one in question in this case.

There is no easy middle ground in this case. Therefore, I think it would be wise to step away from vices and social conduct, and turn, instead, to the role of intellectual property in international business. The plain packaging legislation can, in many ways, be seen as giving a government broad-reaching authority over international trademarks. This, I believe, is a more easily settled debate. To take away a corporation’s right to use its own distinguishing mark, over which it has a legal right to exclude use by others, strips it of its ability to engage with its consumers. The entire concept of brand loyalty becomes compromised. To limit intellectual property use in an industry often burdened with social stigma can serve as a starting point for further and more restrictive regulation of intellectual property in other industries. There is no such thing as moral utility in the world of intellectual property law. To keep it as such is the necessary tradeoff for promotion of innovation and advancement globally.


Philip Morris Asia v. Australia, Case No. 2012-12, Notice of Claim, (UNCITRAL Jun. 27, 2011).

Philip Morris Asia v. Australia, Case No. 2012-12, Australia’s Response to the Notice of Arbitration, (UNCITRAL Dec. 21, 2011).


Shirin Lakhani is a 2L JD/MBA candidate at University of Denver Sturm College of Law and staff editor on the Denver Journal of International Law and Policy.

Posted in DJILP Online, Featured Articles, Shirin LakhaniComments (0)

Protesters hold signs reading “Save Serge Atlaoui” at a rally in eastern France Saturday. (AFP Poto/Alexandre Marchi) http://news.yahoo.com/photos/protesters-hold-signs-reading-save-serge-atlaoui-april-photo-211646816.html

Indonesia execution announcement prompts threat of sanctions

On Saturday April 25th, Indonesia notified families of nine foreigners convicted of drug crimes– from Australia, Brazil, the Philippines and Nigeria—that the prisoners will be transported to Nusa Kambangan “execution island” and killed by firing squad this week. The announcement arrives after months of international condemnation of Indonesia’s policies regarding the death penalty.

Andrew Chan and Myuran Sukumaran, Australian citizens, have been imprisoned in Indonesia since 2006 and face execution Tuesday. (Reuters) http://www.aljazeera.com/news/2015/02/indonesia-delays-execution-australian-convicts-150220072517990.html
Andrew Chan and Myuran Sukumaran, Australian citizens, have been imprisoned in Indonesia since 2006 and face execution Tuesday. [Reuters]

Two Australians, Andrew Chan and Myuran Sukumaran, arrested in 2006 for being ringleaders in the drug-smuggling group deemed the “Bali Nine” are among those listed for execution. Indonesia delayed the execution of Chan and Sukumaran in February for “technical reasons” and tensions have remained high between Australian Prime Minister Tony Abbott and Indonesia’s Attorney-General Muhammad Prasetyo. “We abhor the death penalty, we regard it as barbaric,” Abbott said in an interview with The Daily Telegraph. “We will find ways of making our displeasure known.” In March, Foreign Minister Julie Bishop announced a two-fold offer – a prisoner swap, and an offer to pay the costs of ongoing life imprisonment, should Indonesia spare Chan and Sukumaran’s lives. This followed more than 50 appeals for clemency. Indonesia rejected the offer, claiming that there was no legal basis for such an arrangement.

Serge Atlaoui, a French citizen whose case has prompted widespread protests throughout France, was granted a temporary two-week reprieve, however the reason for this remains unclear.  “We remain extremely cautious. Everything can change from one day to the next,” said Richard Sedillot, Atlaoui’s lawyer.

In January, Indonesia executed six alleged drug offenders, including five foreigners. The killings prompted Brazil and the Netherlands, two countries in which the prisoners had citizenship, to recall their ambassadors.

Protesters hold signs reading “Save Serge Atlaoui” at a rally in eastern France Saturday. (AFP Poto/Alexandre Marchi) http://news.yahoo.com/photos/protesters-hold-signs-reading-save-serge-atlaoui-april-photo-211646816.html
Protesters hold signs reading “Save Serge Atlaoui” at a rally in eastern France Saturday. [AFP Poto/Alexandre Marchi]

And on Saturday, UN Secretary-General Ban Ki-moon called on Indonesia’s government to reverse their decision. “The secretary general urges President Joko Widodo to urgently consider declaring a moratorium on capital punishment in Indonesia, with a view toward abolition,” said a spokesperson.

The executions may have far-reaching implications on trade relations.  Australian trade minister Andrew Robb ended negotiations over a free-trade agreement with Indonesia after the executions were announced. Trade between the two countries totaled almost $15 billion in 2013, however some analysts remain skeptical that Australia will take any real action. While no nation has officially announced plans for sanctions, French President Hollande discussed Atlaoui’s case following the announcement Saturday saying, “if he is executed, there will be consequences with France and Europe because we cannot accept this type of execution.”

With the widespread coverage of the Dzhokhar Tsarnaev capital Boston bombing trial in the U.S.  and the increasing tensions in Indonesia and around the world, the debate regarding capital punishment and the means in which it is conducted  in the U.S. and overseas remains a heated one.

Bree Plasters is a 3L and the outgoing Executive Editor of the Denver Journal of International Law and Policy.

Posted in Breann Plasters, DJILP Online, DJILP Staff, Featured ArticlesComments (0)


The College Conundrum: How US student loan repayment policy created $1 trillion in outstanding debt


Credit to: https://farm1.staticflickr.com/44/148486190_9e1daed403_o.jpg

On average, a US student will spend approximately $21,000 per year pursuing a college degree, approximately 22% of which will be paid through borrowed funds. Considering the increasing costs of college tuition coupled with the need for students to borrow almost ¼ of their tuition, it no surprise that the outstanding federal student loan debt has crossed the $1 trillion mark. With continuously increasing tuition threatening to put higher education just out of reach for many Americans, it’s intriguing to consider that many countries around the world take a surprisingly different approach to higher education tuition and funding.

Recently, Germany reverted back to a free tuition model for public universities, after an eight year period in which the universities were allowed to charge up to €1,000 per year (approx. equivalent to $1,300). Denmark takes a similar approach but goes a step further by providing higher education completely free, not only to its own citizens but also to those of any country in the European Union, while also providing monthly stipends for cost-of-living expenses. While not tuition free, Australia nonetheless has a similar student-centric policy that bases tuition on major, with higher rates for those areas in which the student can expect a higher future income. As an incentive to lessen the amount of debt taken on by students in financing their education, students who pay as much of their tuition upfront as possible receive a 10% discount on their tuition rate.

When compared with countries like Australia and New Zealand, the United States’ debt forgiveness and repayment policy seems rather harsh. As previously mentioned, Australian students who are able to pay some of their tuition upfront receive a discounted rate. Anything that is not paid up front is paid back based on income but only once the student has graduated, become employed, and their income has reached a certain minimum level. In the event that their income drops below the minimum level, they are not required to make further payments until their income again meets the minimum standard.

While the US does offer a somewhat comparable systems in theory, in practice the differences are significant. For example, American students do have the option of applying for an income-based repayment plan, but rather than automatically being enrolled in the plan or allowing anyone to opt-in, only students demonstrating partial financial hardship can take advantage of this option. Similarly, American students have the option to apply for deferment or forbearance if they are unable to continue making payments on their loans, however, these options are limited in time, up to three years for deferment and twelve months for forbearance. Most significantly, interest continues to accumulate during the deferment/forbearance period whereas no interest accumulates during the Australian no-payment period.

So is a US college degree worth the increasing price tag? The answer depends on your perspective.

In the US, college graduates in general have a much lower unemployment rate than those without a college degree. As you might expect, when comparing unemployment rates of all college graduates with recent college graduates, the unemployment rate for recent college graduates is higher but maintains fairly steady (peaking at 5% for all graduates in 2010 compared with 7% for recent college graduates in the same year). Somewhat troubling however, is the fact approximately 44% of graduates are underemployed, meaning those graduates who report having a job are employed in a job that does not require their degree. Thus the question of whether or not to pursue a college education depends on balancing the likelihood of landing a “dream job” (or even finding a job after graduation), with the encumbrance of a large amount of unforgivable debt. Given the staggering and still increasing amount of federal student loan debt, this, apparently, is a gamble that many hopeful young Americans, myself included, are willing to take.


Demi Arenas is a 2L and Staff Editor on the Denver Journal of International Law and Policy.

Posted in Demi Arenas, DJILP Online, DJILP Staff, Featured ArticlesComments (2)


Critical Analysis: Accusations Against Australia’s Border Protection Policies

Over the past month, Australian navy and customs officers have been accused of towing or turning back boats carrying Indonesian asylum-seekers. Australian Prime Minister, Tony Abbott, has reported little about Australia’s asylum-seeker policies, fearing that exposing such information may create a tactical advantage in a wartime scenario. The United Nations High Commissioner for Refugees (UNHCR) has previously expressed concerns over how Australian policies of border protection might violate international responsibilities.  These new reports of towing and turning back Indonesian asylum-seekers now raises questions surrounding Australia’s adherence to international conventions and laws protecting refugees.

Prime Minister Tony Abbott fails to open up about the border protection policies in Australia. Image Source: Getty Images/AFP

Prime Minister Tony Abbott fails to open up about the border protection policies in Australia. Image Source: Getty Images/AFP

Australia is just one of 144 states to have ratified the 1951 Convention relating to the Status of Refugees (Convention) and the 1967 Protocol amendment. In January of 1951, the United Nations General Assembly created the Office of the UNHCR to provide “international protection” to refugees.  The Convention became effective in 1954 and played an important role in the UNHCR’s international refugee policies and protections.

The Convention establishes several obligations that signatory countries must follow in order to provide appropriate protection and potential solutions for refugees. One such obligation is “non-refoulement,” a concept stating that “no refugee should be returned in any manner whatsoever to any country where he or she would be at risk of persecution.” Under this principle, countries party to this Convention should not return refugees to any country where they may face persecution, whether it is their home country or not.  Furthermore, the Convention provides refugees an exemption from penalties for illegal immigration and provides them with protection from expulsion from the country.

While Australian government officials have remained quiet on border protection policies, these reports and accusations of towing and turning back boats questions whether the Australian government is adhering to its obligations under the Convention.  Prime Minister Abbott and his staff maintain silence surrounding the details and/or accuracies of these accusations.  In response to questions surrounding the nation’s border control policies, Abbott stated “I’m pleased to say it is now several weeks since we’ve had a boat, and the less we talk about operational details on the water the better when it comes to stopping the boats.”

In addition to reports of towing and turning back boats, the Australian government has also been accused of purchasing lifeboats to be used in ushering asylum-seekers back to Indonesia.  Australian Operation Sovereign Borders commander Angus Campbell has admitted to the purchase of lifeboats, but mimicking Prime Minister Abbott’s policy of secrecy over government operations, has not stated the intended purpose for the devices.

Even Indonesian officials are angered by Prime Minister Abbott’s failure to open up about the specifics of the country’s border protection policies. Although Abbott has denied some of these allegations, he has failed to make reports on the details of the Australian immigration control policies.  Mark Dreyfus, active immigration spokesman for the Australian Labor Party, stated, “I’m not going to speculate because it’s for the government to explain the circumstances. It’s for the government to reassure Australians that everything that’s been done does comply with international law, that everything that’s been done complies with our obligations under the refugees convention.” Until the Australian government reveals the truth about their border protection operations, the rest of the world will continue to question the legality of their actions. 

Stacy Harper is a 3L at Denver Law and Marketing Editor for the Denver Journal of International Law and Policy.

Posted in DJILP Online, DJILP Staff, Featured Articles, Stacy HarperComments (0)

Japanese whaling vessel

Critical Analysis: Australia and Japan head to the ICJ

From June 26th to July 16th the International Court of Justice (ICJ) will hear arguments from Australia and Japan over the dispute concerning Japan’s whaling program. This will be Japan’s first appearance as a party before the ICJ. The court proceeding began in 2010 and has so far cost Australia over $20 million dollars.

Australia and Japan are key trading partners and both countries have said that the ICJ is the appropriate forum for a dispute between friends; yet, it is believed Japan will defend their case by arguing that the ICJ lacks jurisdiction and that the Japanese whaling program is not a violation of international obligations because it is only for scientific purposes. The ICJ is known as the World Court and has dual jurisdiction – to resolve disputes in accordance with international law that have been submitted to it by States or to give advisory opinions at the request of the UN or other specialized agencies.

Australia maintains that this case falls under the first prong of the court’s jurisdiction. Australia believes Japan has breached its duty under the 1986 International Whaling Commission ban on commercial whaling by hunting the whales and labeling it a scientific program. Australia states that Japan has killed over 10,000 whales since 1988. In comparison, in the 31 years prior to the ban, only 840 whales were killed for research. Tension over this issue between the friendly nations has been building since 1999 when Australia named the Southern Ocean a sanctuary for whales. Australia holds strong to the position that commercial whaling should be outlawed.

Japanese whaling vessel

A Japanese vessel engaged in what Japan describes as scientific research (Jeremy Sutton-Hibbert)

Japan argues that their whaling program is for scientific research to prove commercial whaling is viable and therefore exempt under Article 8 of the International Convention for the Regulation of Whaling. Although the whales are killed for scientific research, the whales are brought back to Japan and sold for meat,which is why Australia believes the program is actually a commercial enterprise. Japan defends their right to whaling as part of a culinary tradition and cultural practice; however, whale consumption is significantly low in Japan and it is reported that 5,000 tons of unsold meat remains in storage.

Those who side with Australia note that scientific research on sustainable whale populations can be done without slaughtering the animals. Scientists can use listening devices to track the whales, locate them, and then attach satellite devices to learn more about their breeding and feeding behaviors and patterns. Asking the court to preserve the whales may seem like an emotional stance but a decline in the species affects the marine ecosystem and tourism connected with whale watching expeditions.

The ICJ has also permitted New Zealand to intervene in support of Australia’s position but the ICJ did not grant New Zealand status as a party to the case. Conversely, Norway and Iceland, which have commercial whaling programs, have not moved to intervene in support of Japan’s arguments that whaling is a cultural tradition. Not only is Australia arguing that commercial whaling should cease under the International Whaling Commission ban, but the Animal Welfare Institute has also cited that any attempts, including those by both Norway and Iceland, to sell whale products is banned by the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Iceland has one company that hunts fin whales and the only country it sells to is Japan. However, Iceland also allows for the hunting of endangered minke whales and has exported 3,000 tons of whale meat to Japan since 2006.

The final ICJ decision could impact Japanese public perception on the practice of whaling, which in turn may affect Iceland’s trade with Japan. The case is a large gamble for conservationist nations because the ICJ’s 16 judge panel decision will be final, binding, and with no appeal; the outcome could risk the lives of numerous whale populations. The Attorney-General Mark Dreyfus is hopeful that Australia will win the case and that the ICJ decision will come before the end of the year, preventing the next season of hunting. This case is one that all international and environmental lawyers should tune in for – the public hearings will be broadcast live on the International Court of Justice’s website at www.icj-cij.org/presscom/multimedia.php?p1=6.

Kristen Pariser is a rising 3L, a Staff Editor for the Denver Journal of International Law and Policy, and Executive Editor for The View from Above blog.

Posted in DJILP Online, DJILP Staff, Featured Articles, Kristen PariserComments (0)

The Australian High Court

Australia’s High Court says “no” to Spousal Privilege

OK, so this is written like a research project, but, hey, I’m the FCIL Librarian. Comparative law raises many issues, and this comment is not meant to be a complete exploration of all the possible issues raised in comparing Australian and US laws, but given the common law heritage of the United States and Australia, the different directions being taken by the two countries on this point is striking. This post is inspired by a one from Int-Law. For a more erudite discussion, click here .

The Australian High Court

The Australian High Court

Do you have clients in Australia? You may want to advise them of this recent decision from Australia’s High Court. Overturning what many say is hundreds of years of common law tradition, the Court said that in Australia, there is no spousal privilege under common law, and the Australian Crime Commission Act (2002) which created the Crime Commission, privileges only self-incrimination, “the person” giving testimony or providing documents. (Sections 30(4) and 30(5) are cited in the judgment as the relevant parts.)

The issues before the Court, as stated in the judgment are:

Evidence – Privilege – Spousal privilege – Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) (“Act”) to give evidence regarding “federally relevant criminal activity” involving her husband – Witness declined to answer examiner’s questions by claiming spousal privilege – Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings – If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege. Words and phrases – “compellability”, “competence”, “spousal privilege”.

Here is a link to the decision.

In the case, a wife was called before the Crime Commission investigating tax fraud, and asked to testify about the actions concerning her husband (she had worked in his accounting office as a secretary). She claimed a spousal privilege, and was upheld by the full bench of the Federal Court. But the High Court took a different view. The wife may now face jail time if she refuses to testify (although the High Court did order the Crime Commission to pay her costs). One wonders if spousal privilege was a consideration when drafting the Act? (Would be an interesting research project… )

The United States, while inheriting the same common law traditions, has taken a different approach. Spousal privilege is codified in the Federal Rules of Evidence, Rule 501 (Privileges in General).

The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:

  • the United States Constitution;
  • a federal statute; or
  • rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

The issue of Husband-Wife Privilege is fleshed out at Subdivision IX, of West’s United States Code Annotated (2001).  It provides extensive explanations of issues such as which matters are privileged (notes 446-454), confidentiality of communications (notes 431-435), and exceptions to privilege (notes 455-460). (One may also want to look at the definitions in Black’s Law Dictionary and Ballentine’s Law Dictionary).

Below is the summary, extracted from the judgment. Not only is the reasoning interesting, but I was struck by paragraph 232, which quotes U.S. Supreme Court Justice Oliver Wendell Holmes. I wonder how many U.S. Supreme Court decisions would quote an Australian judge?

Summary of conclusion and orders

  1. 231.        Opinions may differ as to the interpretation of statements in older texts and cases. Such statements as there are, which suggest that one spouse might not be obliged to give evidence or answer questions which may tend to incriminate the other, do not provide a sufficient foundation for a conclusion that a spousal privilege of the kind claimed existed. Statements in All Saints were addressed to the question of compellability and later cases show that they have been so understood. Those observations are consistent with a view that the court retains the power to determine the question of the wife’s compellability. Even so, the question of her compellability was not finally determined in that case. Its lack of resolution until much later, in England, does not suggest that the topic of a substantive witness privilege was likely to have been addressed. The later application of some of the old common law views towards marriage, which informed the rule of competency, and about which it is not necessary to proffer a view on this appeal, with respect to the compellability of a spouse in criminal proceedings, does not point to the existence of a privilege. It merely states an assumption that those views meant that a privilege arose. It has not been shown that that question has been addressed by the common law courts.
  2. 232.        The observations of Justice Oliver Wendell Holmes concerning the creation of legal doctrine are apposite here. He spoke of a statement of principle occurring only after a series of determinations on the same subject matter and by a process of induction and went on to say[433]:


“And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step.”

No such developments are evident in the cases and materials to which reference has been made in this case. They suggest, at most, that a spouse might seek a ruling from the court that he or she not be compelled to give evidence which might incriminate the other spouse.

The Australian case was decided in a criminal context, on the issues of “compellability” and “competency” and, it concerns a single Act. The decision does not mean that spousal privilege may not be claimed under a different set of facts.

The implications and application of the decision are broad for Australians, and it raises several questions and issues. Marriage is a key value in society. Does this decision weaken the institution? The punishment of crime is also a key value to any society.  Is upholding the punishment of criminals a more important value (civil law is a different subject)? In many marriage vows there is the concept of ‘two’ becoming ‘one.’ Is the sanctity of marriage vows being undermined?  Is the prosecution of criminals more important than the sanctity of marriage? What impact might this decision have on Australian society’s view of the High Court?

The judgment makes for very interesting reading, covering significant historical cases, and the application of common law.  The discussion of the history of privilege is quite fun.

Here is a link to an Australian article discussing the decision which discusses the other privileges which may be under assault in Australia, such as the priest-penitent privilege. Quoting an Australian law professor, the article notes that the attorney-client privilege is under the least threat. Whew!

Posted in DJILP Online, Featured Articles, Joan PolicastriComments (0)

Sources: CNN, Sydney Morning Herald, NY Times, The Guardian, MSNBC, The Australian, Tengri News

News Post: Australia’s Combat Rule for Gender Equality

Sources: CNN, Sydney Morning Herald, NY Times, The Guardian, MSNBC, The Australian, Tengri News

Sources: CNN, Sydney Morning Herald, NY Times, The Guardian, MSNBC, The Australian, Tengri News

Australia decided last Tuesday, September 27, that its women in the military can work in any combat job, including fighting in the commando units at the front-line.  Australia’s Defense Minister Stephen Smith confirmed that Australia would implement the changes in military regulations over a five-year period, with a focus on the physical and psychological capacities of each individual rather than one’s gender.  The changes will affect the army most directly, as opposed to other branches of Australia’s Defence Force (ADF) where woman already serve in combat roles. In comparison to the rest of the world, the Australian military already deploys a significant number of women in the ADF.  The military sent more than 2,000 female troops to fight in Iraq and it currently makes up the largest contingent of female troops deployed by any non-NATO member fighting in Afghanistan. Australia joins the ranks of the very few countries that currently afford women equal opportunities in the military.

The Pentagon did not issue an official reaction to this news, although U.S. Defense Secretary Leon Panetta made statements insinuating that the U.S. military may see similar changes in the near future.  Panetta stated that, “I am committed to removing all of the barriers that would prevent Americans from serving their country and from rising to the highest level of responsibility that their talents and capabilities warrant. These are men and women who put their lives on the line in the defense of this country, and that’s what should matter the most.” Other recent changes in the U.S. military include the repeal of “Don’t Ask, Don’t Tell,” as well as the April 2011 announcement that the U.S. will permit women in the Navy to hold jobs on nuclear submarines. Additionally, there is pressure from outside the government to further decrease gender barriers in the U.S. military, illuminated by the recommendation by a commission for diversity in the armed forces that the U.S. consider allowing women to serve on the front lines.

While the U.S. bars women from engaging in direct combat on the ground, American women are participating in combat situations due to the change in warfare tactics as elucidated by the wars in Afghanistan and Iraq. There are currently teams in the U.S. Marines consisting entirely of female troops in order that they may interact with local communities, and specifically local women, in ways that may be culturally unacceptable for male soldiers. As such, more than 140 female troops have died in Iraq and Afghanistan, according to the Pentagon.  Additionally, a 2008 poll found that 85% of U.S. female service members have been deployed to a combat zone or drew extra pay for serving in dangerous and hostile areas.

Australian Defense Minister, Stephen Smith stated that “what you do in the forces should be determined by your physical and intellectual capability, not simply on the basis of sex,“ and Australia’s first female Prime Minister, Julia Gillard, is in full support of the changes in regulation.  Once Australia implements this change, there will be no barriers or restrictions on women in the military.  The military is currently working to determine the requisite physical tests it will employ for each job in the ADF. Among the changes, qualified women will now be able to lead infantry units or work as snipers and commandos, as well as have the opportunity to command the entire military.

No one expects opposition from overseas allies, including U.S and Afghan troops, currently serving with Australian soldiers. Conversely, there are those groups and individuals that staunchly oppose equality for women in the military.  The Australia Defense Association (ADA) is one such lobbyist group that opposed this decision. The ADA’s Executive Director, Neil James, argues that there are physical differences between men and women that make women more vulnerable in combat situations. James gave the warning that “on the battlefield, academic gender equity theory doesn’t apply.” Additionally, retired Major-General Jim Molan cautioned that “society must be prepared to bear the consequences of women serving in front-line combat roles . . . and if society wants that, then society can have it – and bear the consequences.

Other countries that currently allow women to serve on the front lines include Canada, Germany, South Korea, France, Spain, Denmark, New Zealand, and Israel. The U.S. allows women to serve on the front-line, yet not in direct ground combat.  Australia’s decision means that men in combat roles from countries that do not allow women on the front lines will be fighting alongside women from countries such as Australia.  Additionally, due to the changing style of warfare, it appears that nations worldwide are deploying women in their militaries into front-line combat zones regardless of their nation’s policies.  While the United States has not yet taken the step to give women equal opportunity in the military, Australia’s announcement is something that certainly gives the U.S., as well as countries around the world, some policy considerations for the near future.

Posted in DJILP Online, DJILP StaffComments (1)

University of Denver Sturm College of Law