The Gambia v Myanmar: a watershed moment for the Rohingya, and the Genocide Convention – Craig Hershowitz

It is rare that political leaders turn to courts and ask them to play a role in stopping ongoing mass atrocity crimes. The international judiciary is not a natural defensive weapon against such crimes: their usual ambit extends to retrospective prosecutions of individuals, often many years after the fact. In the recent decision of the International Court of Justice in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), the Court has laid down a marker which may have far-reaching implications. While the decision clearly has significance for Myanmar’s long-persecuted Rohingya minority, it may also redefine the international community’s ability to halt (or at least slow) the commission of mass atrocity crimes. 

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Corporate Responsibility to Respect Human Rights through the Practice of Human Rights Due Diligence – Md. Abdur Razzak

Introduction

Corporate responsibility to respect human rights is the second pillar outlined by John Ruggie, the UN Special Representative for Business and Human Rights, in his three-pillar framework on business and human rights. Subsequently, it has been placed in part II of the United Nations Guiding Principles on Business and Human Rights, 2011 (UNGPs). This pillar, as elaborated in the UNGPs, demands that businesses should avoid infringing human rights and address adverse human rights impacts with which they are directly or indirectly involved. The UNGPs articulate that responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. This article provides a critical assessment of pillar II of the UNGPs with reference to several key conceptual developments and practices evolved in this area. The central aim of the study is to explain and elaborate the dominant theme of Human Rights Due Diligence (HRDD) through which the UNGPs seek to establish the business respect for human rights. The article also analyses the grey areas in the HRDD process and considers the suitability of the emerging practice of integrating a ‘Human Rights Impact Assessment’ (HRIA) in the HRDD process.

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Diabetes, The Insulin Crisis and The Right to the “Highest Attainable Standard of Health” Under International Law – Benjamin Teng

Diabetes and the Insulin Crisis

The International Diabetes Federation reports that in 2019 approximately 463 million adults worldwide were living with, and 4.2 million deaths were caused by, diabetes.

Diabetes has no cure. It is a disease where the body is unable to properly regulate its blood glucose levels because of an inability to produce (type 1), or deficiency in producing and using (type 2), the hormone which allows the body to absorbglucose, insulin. For both types of diabetes, the only treatment is by the manual injection of insulin, when and measured as needed, in order to keep one’s blood glucose levels within a safe range. If insufficient insulin is administered, the body enters a state of diabetic ketoacidosis, which, if left untreated, is fatal. People with type 1 diabetes need insulin every day in order to stay alive.

There is, at present, a crisis in access to insulin. Earlier this year, news outlets reported the death of a young man living in the United States (“US”) by the name of Jesimya David Scherer-Radcliff. Mr Scherer-Radcliff had diabetes. He died because he could not afford enough insulin and, consequently, had to ration his supply. This is but one of an increasing number of cases where people, unable to afford increasingly prohibitively priced insulin, are forced to dangerously risk rationing that insulin against medical advice, causing their tragic death.

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Reminder: Call for Papers and Posters, ILA 79th Biennual Conference, Kyoto 2020

This is a reminder to readers of the ILA Reporter that the deadline for abstracts for papers and posters for the International Law Association’s 79th Biennual Conference to be held in Kyoto, Japan from 23 August 2020 to 27 August 2020 is 20 February 2020.

The theme of the Conference is ‘Bridging for the Future’. Papers may be submitted on any area of public or private international law, preferably on a topic related to the main theme. The Conference seeks to bridge the past, present and future, and connect the East, West, North and South, with a view to enhancing mutual understanding on diverse values, cultures and religions, and fostering new ideas to tackle global issues such as humanitarian crisis, economic polarisation and environmental challenges.

The Conference will also hold a poster session which provides early career scholars, including PhD students and post-doctoral researchers, with an opportunity to present their research activities as a poster at the Conference. There will then be opportunities during the Conference for poster-presenters to explain their research and participate in discussions with attendees. Posters may be submitted on any area of public or private international law, preferably on a topic related to the main theme.

The program will be finalised later this year but at present, includes panels on inter-State litigation and international trade law; the law of the sea; new and emerging areas like space law, the international law of the Arctic and the law of cyberspace; and a special panel on Asian Judges at the World Court in honour of Judge Mineitciro Adatci.

For more details, contact the Conference organisers at planning-unit@ila2020kyoto.org or visit the Conference website at http://ila2020kyoto.org/panelposter.html.

Event: ILA Breakfast Seminar – 16 January 2020

Last week, the International Law Association (Australian Branch) held the ILA (AB)’s first event of 2020, a breakfast seminar at Marque Lawyers in Sydney.

The seminar featured a presentation entitled ‘Environmental Degradation and Climate Change as Serious Threats to the Enjoyment of human Rights: Recent Developments within the UN Human Rights Committee’ by guest speaker Vasilka Sancin, Head of the Department of International Law at the Faculty of Law, University of Ljubljana (Slovenia). Professor Sancin is also a member of the UN Human Rights Committee and the National Inter-Ministerial Commission for Human Rights, Inter-Governmental Working Group on International Humanitarian Law and the Strategic Council of the Slovene Minister of Foreign Affairs.

For more details on upcoming events held by the International Law Association (Australian Branch) and our partners, follow our Facebook and Twitter pages.

Learning from One Another? Judicial Comparativism as a Facet of Transnational Employment Regulation in the Gig Economy – Margarita Amaxopoulou

‘Workplace laws have not kept pace with technological change’. This was the assertion of the Australian Select Committee on the Future of Work and Workers in its recent report at [4.119], recommending that legislative reform is necessary to afford gig workers employment law protections. Beyond Australia’s borders, ‘AB5’, an Act protecting gig workers as employees, passed the Senate of California this spring and signed into law on 18 September 2019. Regulators in the UK are also committed to bringing forward legislation aligning employment status definitions with modern working practices (p 44). The gig economy, however, does not only attract the attention of legislatures; it also constitutes the locus of fierce litigation around the world concerning the application and enforcement of EUpubliccompetition and employment law.

This article discusses the transnational character of gig work regulation by reference to litigation against Uber concerning the (mis-)classification of employment status in three jurisdictions. It does so to make the case for a much-needed judicial ‘comparativism’ in this particular context. First, I present a comparative analysis of the legal tests applied in cases with similar factual background in Australia, the United Kingdom and the State of California which led to different legal resolutions. Second, in light of the global character of this legal problem, I argue that judicial comparativism engaging with the reasoning of relevant foreign case law is an important facet of transnational employment regulation in the gig economy. 

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Icebergs and international law – Matthew Paterson

Despite indigenous peoples such as the Inuit having harvested ice – including from icebergs – for drinking water for centuries, the prospect of commercial harvesting is suddenly gaining mainstream traction. As The Atlantic reports, “Luxury berg-water companies are cropping up across the Arctic. Plans for large-scale operations are growing as well.” While the scale has thus far been minor, there are large-scale plans such as those by the UAE to tow icebergs from Antarctic waters to be harvested.

At first blush, this recent hive of activity seems to operate in a lacuna of international law. After all, icebergs are not specifically mentioned in any international treaty and, as any harvesting has only been on a decidedly small scale, it is exceedingly unlikely that any state practice has yet emerged. Thus, The Atlantic suggested that international lawyers will have to wait for state practice and, ultimately, custom, to develop before there are clear international rules for how icebergs should be treated.

I beg to differ. While there is no International Convention on the Status of Icebergs, that does not mean they exist in a total international law vacuum. Rather, the International Convention on the Law of the Sea (UNCLOS) provides a framework through which the rules surrounding the harvesting of icebergs can be ascertained.

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Event: Beyond Googlies & Cricket: India and Australia Trade, Investment, and Successful Dispute Resolution, 20 November 2019

The Australian Dispute Centre is holding a panel session on 20 November 2019 to discuss the possibilities for the relationship between Australia and India. The event will be hosted in a variety of venues in Brisbane, Sydney, Melbourne, Perth, Adelaide, Patiala, Chandigarh, New Delhi and Kolkata.

Panelists include Gitanjali Bajaj (Partner, DLA Piper), Jo Delaney (Partner, Baker McKenzie), Bronwyn Lincoln (Partner, Corrs Chambers Westgarth) and Natasha Bopaiah (Company Secretary, Australia India Business Council) and will be chaired by Matthew Hickey (Barrister, Level 27 Chambers).

With rising bilateral trade and investment between Australia and India, this is a tremendous opportunity to network in a relaxed atmosphere with members of the Australia India Business Council, legal and ADR colleagues.

For more information, and to register, visit the ADC’s website.

Submissions for the Australian International Law Journal

The deadline for submissions for the upcoming issue of the Australian International Law Journal is 30 November 2019.

From a modest beginning in 1983 as Australian International Law News, the Australian International Law Journal has become a peer-reviewed law journal of international standing. Articles published in the Journal cover a wide range of topics of public and private international law.

Previous issues of the Journal may be accessed on AustLii.

For more information, please refer to the Guidelines for Authors and Publication Policy, or contact the Editor-in-Chief of the AILJ, Professor Anthony Cassimatis on a.cassimatis@law.uq.edu.au.

International investment law and the technologisation of intellectual property administration: is it fair and equitable? – Alexander Ferguson

States are increasingly using technology, such as artificial intelligence, to assist with the administration of government. The World Intellectual Property Organization (‘WIPO’) has identified, for example, that artificial intelligence patent applications for computing in government grew by 30% between 2013 and 2016 (see report at page 51).

The administration of intellectual property is one area where technology is increasingly being used. A 2018 WIPO survey found that at least 17 states, including Australia, had started to use artificial intelligence to administer their intellectual property regimes. Such technologies can reduce the cost of administering patent and trademark regimes, and can improve the speed and quality of decisions, such as by reducing errors. However, at least some commercially available tools are ‘not mature enough and cannot be relied upon’ (WIPO, page 46).

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