International Law and COVID-19: A Preliminary Assessment – Dr Christopher Ward SC

The sudden and dramatic COVID-19 pandemic raises many novel questions of international law. Once the pandemic phase eventually ends, serious questions will be raised as to the ability of existing international law and global governance structures to cope with such an event. Lessons will be learned, and international law will evolve.

Meanwhile, it is important to consider the existing legal framework and the extent to which international law is responding to the pandemic, as well as the nature of international legal problems that have arisen, or that will clearly develop.

This article discusses international legal issues surrounding the global health response and the developing crisis at sea. Obviously there are many other issues that arise, including serious issues of international trade, restrictions upon international aviation and international freedom of movement, as well as the human rights implications from the sudden and extraordinary domestic measures in many countries that restrict freedom of movement in the most severe ways.

COVID-19, international law and the battle for framing the crisis – Ntina Tzouvala

In one of his most influential interventions to date, the prominent international lawyer Martti Koskenniemi argued that once we know which international institution is going to handle an issue, we automatically know how said issue will be dealt with. These are, of course, uncertain times and predictions about institutional responses are only for the very brave. That said, there is something valuable in Koskenniemi’s assertion that different international legal fields and institutions incorporate different (and often competing) histories, logics, tools and, ultimately, biases. In turn, these divergences make struggles over institutional jurisdiction and legal framing crucial. The ways we choose to understand the ongoing pandemic and the actors that societies mobilise to do so will shape our response, and also the arrangements that will emerge after the crisis is officially over.

The Prospects of The Gambia v. Myanmar (Provisional Measures) in Protecting the Rohingyas – Quazi Omar Foysal

Introduction

The International Court of Justice’s Order indicating Provisional Measures in The Gambia v. Myanmar on 23 January 2020 (Order) has been hailed by many as politically and legally significant in ensuring justice for the Rohingya group. Given the fact that all the interim measures indicated in the Order will remain in force at least until the date of the final decision, unless the ICJ or The Gambia opts for another Order in the interim, this Order will be very crucial in ensuring the interim protection of the Rohingyas for the time being. Against this backdrop, this article aims at elucidating the strengths and weakness of the Order in protecting the Rohingyas from genocide for the interim period. It will also explore its relevance to the final decision.

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.

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.

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.

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.

*Left:* Professor Sancin presenting at the seminar. *Right:* Professor Sancin with Professor Natalie Klein, President of the International Law Association (Australian Branch)

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 EU, public, competition 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.

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.