Author: Editors

COVID-19 and older persons: Why we need a federal Human Rights Act – Nathan Kennedy

Editors Analysis, Articles

COVID-19 has made older Australians fear for their lives and also for whether they will receive care to the same standard as younger people.  Would better human rights protection in law, such as a federal Human Rights Act, ensure policies put human dignity at their core and free older persons from this fear?

The preamble to the Universal Declaration of Human Rights includes ‘freedom from fear’ as the ‘highest aspiration of the common people’.  The current pandemic is scary, especially for older persons.  Not just because they are at higher risk of dying from the virus but because they fear being seen as less deserving of the best care due to their age.  Stronger human rights protections in Australia, such as a Human Rights Act, could assist in allaying those fears.

The Aged Care Royal Commission has heard that Australia’s COVID-19 aged care death rate is among the highest in the world.  By September 2020 approximately 74% of Australian COVID-19 deaths were residents of aged care.  The data also clearly shows that while a person is more likely to catch COVID-19 if they are aged in their 20s, the vast majority of those who have died are aged 70 or over.

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The South China Sea Arbitration: Shedding light on sovereignty and international law – Niamh McCormack

Editors Analysis, Articles

This piece considers China’s actions in relation to the South China Sea arbitration commenced by the Philippines and how it provides insights into the role of state sovereignty for international dispute settlement. 

As far back as the Alabama claims of the United States of America against Great Britain arbitration in 1872, the international community has committed itself to the rule of international law and the peaceful settlement of disputes. The South China Sea Arbitration and subsequent events provide an opportunity to reflect on the nature and practical outcomes of international dispute settlement.

An overview of the recent developments in the South China Sea can be found in Julia Weston’s previous post on the ILA Reporter. This current piece examines the South China Sea arbitration between the Philippines and China, focusing on the contested jurisdiction and validity of the tribunal, and what the case demonstrates on the implications of non-participation by a party and the role of sovereignty in international dispute settlement.

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Interview on the Elgar Companion to the Hague Conference on Private International Law – Part 2

Editors Interviews

The ILA Reporter is excited to share Part 2 of our interview about the recently released Elgar Companion to the Hague Conference on Private International Law. This text forms part of the Elgar Companions to International Organisations series and was released 19 December 2020. Part 1 is available here for viewing.

The Companion is a guide to the Hague Conference on Private International Law (HCCH). It is a critical assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law, and was written by international experts who have all directly or indirectly contributed to the work of the HCCH.

This interview was conducted by Josephine Dooley, an Assistant Editor of the ILA Reporter, with the editors of the Elgar Companion to the Hague Conference on Private International Law: 

  • Thomas John, ACIArb, Partner, Grotius Chambers, The Netherlands
  • Rishi Gulati, LSE Fellow in Law, London School of Economics and Political Science, United Kingdom
  • Ben Köhler, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, Germany

In Part 2, Thomas, Rishi and Ben discuss with Josephine:

  • The future of the Hague Conference on Private International Law (HCCH) as an international organisation.
  • Future areas of work for HCCH.
  • The 2019 Hague Judgments Convention.

Many thanks to Thomas, Rishi and Ben for taking the time to speak to the ILA Reporter.

Deep seabed mining: Time to get our regulatory ducks in a row — Tess Van Geelen

Editors Analysis, Articles

In 1871, the French novelist Jules Verne published Twenty Thousand Leagues Under the Sea, an adventure novel in which Verne predicted that ‘in the depths of the ocean, there are mines of zinc, iron, silver and gold that would be quite easy to exploit…’

A century and a half on, the Secretary-General of the International Seabed Authority, Michael Lodge, recently explained that:

The sea floor, just like the terrestrial environment, is made up of mountain ranges, plateaus, volcanic peaks, canyons and vast abyssal plains. It contains most of the same minerals that we find on land, often in enriched forms, as well as minerals that are unique to the deep ocean, such as ferromanganese crusts and polymetallic nodules.

Interest in ocean mineral deposits has ebbed and flowed over the past century and a half. 

In recent years, shortages of easily exploitable terrestrial mineral reserves have renewed interest in seabed deposits. The pressure to identify new mineral reserves has also increased in response to global population growth, expanding middle classes and the resulting higher demand for manufactured goods, technological advancements (particularly in computing), and the shift to low-carbon renewable energy production and manufacturing, which require specific mineral resources.

Lodge argues that seabed mining can contribute to sustainable development by offering an alternative to terrestrial mining, and in particular may offer an economic boon for small island developing states. In particular, for many South Pacific nations that rely heavily on tourism, the Covid-19 pandemic has increased pressure to identify alternative economic opportunities. 

The technical challenges posed by the extreme conditions at the seabed have so far prevented any successful commercial mining. In the past decade, however, a handful of ambitious projects have edged closer to fruition. It is timely, then, to consider whether the nascent regulatory system for seabed mining is fit for purpose.

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Disinformation in international forums: the civil society loophole – Szabina Horvath

Editors Analysis, Articles

An extensive investigation by EU DisinfoLab found that even United Nations (UN) forums are not immune from being fed misinformation and that UN initiatives intended to strengthen accountability can be a source of mistrust. The preliminary findings of the investigation should place the UN, states and civil society actors themselves on notice.

Engagement and involvement with civil society by international organisations can be an incredibly valuable tool. UN forums, in particular, value the input and views of civil society and see civil society as a useful mechanism for ensuring that states are accountable. However, like many mechanisms, this mechanism can be misused. The means and effectiveness of civil society engagement in UN forums and on international issues generally (including civil society led initiatives) should be regularly reviewed and assessed. 

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A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International Crimes – Jessie Chella

Editors Analysis, Articles 1 Comment

This two-part series examines the Malabo Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR). When it comes into effect, the Malabo Protocol will empower the ACJHR to exercise jurisdiction over international crimes as well as introduce a regulatory scheme for corporate criminal liability. This is a milestone for the regional court and the African continent. Additionally, this is a significant innovation for international criminal law, which traditionally has not recognised the criminal liability of corporate entities.

Historical Development of the ACJHR 

As early as 1988, the Organisation for African Unity, later known as the African Union (AU), adopted the Protocol to the African Charter on Human and Peoples’ Rights, which laid the foundation for the establishment of the African Court on Human and Peoples’ Rights (ACHPR) in 2004. Currently, 30 of the 55 AU members have ratified the ACHPR Protocol. In 2000, the AU also created the African Court of Justice (ACJ). Later, in 2005, the AU established the African Court of Justice and Human Rights (ACJHR) by merging the ACHPR and the ACJ. 

Then in June 2014, the AU met in Malabo, Equatorial Guinea, at the twenty-third Ordinary Session of the Assembly. There it adopted the Protocol on Amendments to the Protocol on the Statute to the African Court of Justice and Human Rights, commonly known as the Malabo Protocol. The Malabo Protocol empowers the ACJHR with jurisdiction over international crimes as well as introducing a regulatory scheme for corporate criminal liability. 

The international criminal law section of the ACJHR is off to a slow, rocky start. According to Article 11 of the Malabo Protocol, the Protocol shall enter into force 30 days after 15 members deposit instruments of ratification with the court. Of the 55 AU members, only 15 have signed the Protocol; none have ratified it. 

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Model the Pandemic, Model the World: Which World? Whose World? – Fleur Johns

Editors Analysis, Articles

The global COVID-19 pandemic has been the subject of extensive regulatory activity, primarily by national governments but also by international organisations. This post draws attention to one regulatory technique that has been central to this activity: modelling. Rather than canvassing the merits and demerits of models of different kinds, it argues that at least as much public attention should be devoted to the world-making effects of models as is customarily directed at multilateral treaties or at national legislation with international impacts.

“We need new models” has been a regular refrain amid the COVID-19 pandemic. New models of vaccine delivery; new models of disease spread and mortality; new models of aged care; new economic models; new models of governance and public engagement: all these and more have been called for of late. In these various calls, the term “model” means slightly different things, yet, the term is nonetheless a recurrent point of reference. It is now ubiquitous among efforts to navigate and regulate the complexities of contemporary life, especially so in a global pandemic. In Australia, modelling has been central to government communication with the public around key decisions, including decisions affecting international legal relations. Models have been used to explain and justify border control and quarantine measures, travel restrictions, social distancing requirements and economic stimulus measures. In Australia and elsewhere, the assumptions and outputs of certain types of model have become embedded in law, policy and official guidance, thereby promoting particular understandings of social and economic life. Global requirements to maintain between one and two metres’ social distance between persons, for instance, under penalty of fines or even jail terms, are based on models of respiratory disease transmission dating back to the 1930s. Much as people remain attentive to legislation or treaties coursing through our parliaments, it is important that we attend to these models’ centres and peripheries, foregrounds and backgrounds, hierarchies and priorities, preoccupations and blind spots.

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Interview on the Elgar Companion to the Hague Conference on Private International Law – Part 1

Editors Analysis, Articles, Interviews

The ILA Reporter is excited to share Part 1 of our interview about the recently released Elgar Companion to the Hague Conference on Private International Law. This text forms part of the Elgar Companions to International Organisations series and was released 19 December 2020.

The Companion is a guide to the Hague Conference on Private International Law (HCCH). It is a critical assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law, and was written by international experts who have all directly or indirectly contributed to the work of the HCCH.

This interview was conducted by Josephine Dooley, an Assistant Editor of the ILA Reporter, with the editors of the Elgar Companion to the Hague Conference on Private International Law:

  • Thomas John, ACIArb, Partner, Grotius Chambers, The Netherlands
  • Rishi Gulati, LSE Fellow in Law, London School of Economics and Political Science, United Kingdom
  • Ben Köhler, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, Germany

The ILA Reporter thanks the editors for their willingness to share these insights with our readership.

What the WTO Appellate Body decision on plain packaging means for intellectual property and public health – Suzanne Zhou

Editors Analysis, Articles

In June 2020, the World Trade Organization (‘WTO’) Appellate Body ended a decade of litigation against Australia’s tobacco plain packaging laws when it dismissed the last remaining legal challenge against the measure by rejecting the appeal brought by the Dominican Republic and Honduras to an earlier decision of a WTO panel. The Appellate Body affirmed that plain packaging was apt to, and did, contribute to its public health objectives, was no more trade-restrictive than necessary to achieve that objective, and did not breach any intellectual property obligations under the WTO Agreements.

The Appellate Body decision has important systemic implications, particularly for the relationship between intellectual property rights and public health under the Agreement on Trade Related Aspects of Intellectual Property Rights (‘TRIPS’). This post examines what some of those implications may be beyond tobacco control, such as for the regulation of other unhealthy commodities or for access to medicines. 

Four findings of the Appellate Body have particular significance for the relationship between intellectual property and public health: 

  • its confirmation that trademarks are negative rights that do not prevent regulation of unhealthy commodities marketing;
  • its recognition of regulatory autonomy under TRIPS article 20;
  • its approach to interpreting TRIPS in public health contexts; and
  • its findings on the role of non-WTO treaties within the WTO agreements.

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The conflicts issue in transnational business human rights claims, and a possible way forward under Rome II – Josephine Dooley

Editors Analysis, Articles

This article assesses the recent proposal by the European Parliament’s Committee on Legal Affairs to allow a plaintiff bringing a human rights claim against an EU company in an EU Member State, instead of their home State, to be able to select the law applicable to the claim. An international human rights law perspective is applied to the proposed solution to a growing private international law issue. 

In what forum can a victim of a human rights violation committed by a multinational enterprise most effectively seek reparations? A recent proposal for the European Union (EU) on this issue has caused quite a stir, and Switzerland has just voted against holding businesses liable for human rights and environmental claims in a referendum.

Despite the existence of international human rights law instruments addressing corporate misconduct and human rights, namely the United Nations (UN) Guiding Principles on Business and Human Rights (‘UN Guiding Principles’), under general international law multinational companies are subject to rights but not obligations. International instruments, therefore, cannot impose international human rights obligations on such actors. 

Accordingly, domestic law, including its rules of private international law, determine to what extent corporations may be held accountable for human rights violations. Human rights claims against multinational enterprises are typically actioned as a claim in tort against the subsidiary company as well as the parent company, which is ordinarily incorporated in another State. Normally, being able to claim against the parent company is fundamental in ensuring victims receive proper reparations, as the parent company is typically the defendant with sufficient assets. Accordingly, victims are increasingly commencing proceedings in the courts of the jurisdiction in which the parent company is incorporated – typically Western jurisdictions such as the United Kingdom (UK), the Netherlands and Australia.

The success of a claim heard by a court of the parent company’s domicile is greatly influenced by how that court determines two questions of private international law: (i) should the court exercise jurisdiction over the claim; and (ii) what law should be applied to determine the claim?

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