“Incomprehensible and arbitrary”: Germany’s constitutional court strikes back against the ECB and CJEU – Edward Watson and Jessica Downing-Ide

The Judgment of the Second Senate of Germany’s Federal Constitutional Court (BVerfG), delivered on 5 May 2020, criticises and ignores a decision of the Court of Justice of the European Union (CJEU). More significantly, it questions the European Central Bank (ECB)’s competence to engage in large-scale purchases of government bonds. 

The decision heightens the tension between national law and EU law which has continued to plague European integration. While it carries a different flavour, it can be compared to increasing concerns about fiscal independence and sovereignty within the EU that have triggered other movements such as Brexit. 

This note explains how the BVerfG’s decision will potentially contribute to fragmentation within EU law by inviting courts of other Member States to dispute the legitimacy of the CJEU’s judgments. This note argues however that the BVerfG’s concerns, that the ECB’s competence is expanding beyond those conferred on it by treaty, are valid.

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Event: COVID-19 and International Refugee Law, 4 June 2020

On 4 June 2020, the International Law Association (Australian Branch) will be hosting the third of its series of Zoom seminars on COVID-19, following the first seminar in April on COVID-19 and public international law and the second seminar in May on COVID-19 and private international law. Previous seminars have recordings posted on the ILA (Australian Branch)’s Facebook and Twitter pages. Details on future events will follow.

The seminar will be cohosted by the Andrew and Renata Kaldor Centre for International Refugee Law, UNSW Sydney.

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Who can withdraw from the WHO? – Keilin Anderson

In the latest instalment of President Trump’s escalating attacks on the World Health Organisation (WHO), Trump has now declared that the US will be ‘terminating’ its relationship with the organisation on account of China’s ‘total control’. The move is unsurprising given Trump has already frozen WHO funding and that withdrawal (or threatening withdrawal) is becoming one of his signature diplomatic moves. Since 2017, Trump has announced, hinted at, or commenced withdrawal from a growing list of bilateral and multilateral arrangements, including (but not limited to) the Paris Climate AgreementUNESCO, the TPP, the Optional Protocol to the Vienna Convention for Diplomatic Relations on Dispute Settlement, the Universal Postal Union Treaty (which, so far, has been reversed), NAFTA, the WTO and NATO.  

However, whether Trump can actually withdraw from the WHO is far more complicated than issuing a declaration in the Rose Garden or drafting a tweet. In reality, it is a matter which remains highly contested and complicated both in international law and under domestic law, particularly US law. This post briefly outlines some of the key issues arising from Trump’s attempt to withdraw from the WHO and proposes the need for greater clarity on both domestic withdrawal processes and the implied right in international law to withdraw from a treaty.

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Event: COVID-19 and Private International Law, 14 May 2020

On 14 May 2020, the International Law Association (Australian Branch) will be hosting the second of its series of Zoom seminars on COVID-19, following the first seminar in April on COVID-19 and public international law.

This seminar will feature Associate Professor Jeanne Huang, University of Sydney Law School and Member of the International Law Association (Australian Branch), who will be speaking on collecting evidence abroad by video link under the Hague Evidence Convention and/or domestic laws, and Professor Vivienne Bath, University of Sydney Law School, who will be speaking on private international law, mandatory rules and frustration of contract/force majeure (with particular application to China and Chinese contracts).

Each presentation will be approximately 10 mins, allowing 15-20 mins for responses to questions via the Zoom chat function.

The seminar will be held on Thursday 14 May 2020 from 5:00 pm to 5:45 pm Sydney time (GMT+10). The seminar will be open to members and non-members. To attend, you must RSVP here by Wednesday 13 May 2020 at 5:00 pm Sydney time (GMT+10). The meeting link will be sent through on Thursday morning prior to the seminar.

Subsequent seminars being planned for this series include COVID-19 and international commercial arbitration, human rights, and refugees. Details will follow!

International human rights law and Australia’s COVIDSafe app – Anthony Hallal

COVID-19 has brought the importance of public health into sharp focus.  The need to protect Australia’s health system by slowing the spread of the virus has been emphasised as the key to surviving the pandemic.  To that end, governments in every Australian jurisdiction have implemented a suite of directions, orders and determinations that restrict the activity of individuals and businesses in various ways.  

These restrictions have generally succeeded in reducing the prevalence of COVID-19 in Australia to date.  Consideration is now being given to lifting the restrictions.  However, doing so comes with a substantial risk that COVID-19 transmissions will spike.  To address that risk, the Australian Government has introduced the COVIDSafe app – a tool to identify and contain COVID-19 outbreaks by making contact tracing faster and more effective.

This article considers Australia’s obligations under international human rights law in the context of the COVIDSafe app.  

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The Right to Health and Immigration Detention: What are Australia’s International Obligations? – Alana Bonenfant

In an increasingly connected world, COVID-19 has people around the world isolating and staying home. But what if that home is an immigration detention centre? In March 2020, a guard at an Australian immigration detention facility tested positive for COVID-19. A group of detainees from across immigration detention centres have written to the Prime Minister, Scott Morrison, pleading to be released into the community on health grounds and a case has been brought in the High Court requesting compassionate release for immigration detainees under the circumstances. Reportedly, more than 300 detainees have been released in the UK for reasons relating to the pandemic. So, what are Australia’s obligations? 

The World Health Organisation (WHO) has listed steps which individuals can undertake to help slow the spread of COVID-19, including physical distancing measures such as only leaving the house for essential errands and maintaining 1.5 metres of space between all persons. Are these measures possible in immigration detention? If not, does this constitute a breach of the right to health?

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Event: COVID-19 and Public International Law, 23 April 2020

Next week, the International Law Association (Australian Branch) will be hosting the first of a series of Zoom seminars on COVID-19.

This seminar will feature Dr Christopher Ward SC, 6 St James Hall Chambers and President of the International Law Association and Professor Natalie Klein, UNSW Faculty of Law and President of the International Law Association (Australian Branch) speaking on the role of the World Health Organisation, China’s compliance and the international law relating to cruise ships and their passengers.

The seminar will be held on Thursday 23 April 2020 from 5:00 pm to 5:40 pm Sydney time (GMT+10). The seminar will be open to members and non-members. To attend, you must RSVP here by Wednesday 22 April 2020 at 5:00 pm Sydney time (GMT+10). Please see the flyer below for more details.

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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.

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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. 

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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.

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