In her new book, The Public Order Exception in International Trade, Investment, Human Rights and Commercial Disputes, Zena Prodromou analyses the application of the ‘public order’ exception to various legal obligations in international dispute resolution. In this post, Zena outlines the origins of the research and the key findings. In the context of the global coronavirus pandemic and the imposition of unprecedented restrictions in the name of public health, the book is a timely examination of the meaning and application of the concept of ‘public order’ under international law.
Author: Editors
From treaties to domestic law: The Gender Legislative Index as a tool for domesticating human rights – Ramona Vijeyarasa
This article proposes options for enhancing accountability for domestication of global human rights norms. Drawing on the Gender Legislative Index, it briefly explores the limitations of existing accountability mechanisms in the context of women’s rights and CEDAW. It then discusses the potential for using an index to enhance accountability for domesticating human rights norms in national legislation.
The human rights system is designed to hold countries to account for domestication of the norms set out in the core human rights treaties. If viewed through less sceptical eyes, the treaty monitoring body mechanism system does well to bring visibility to those most egregious cases where domestic legislation openly violates international commitments. For instance, the Committee on the Elimination of Discrimination against Women (CEDAW Committee), through its Optional Protocol conducted an inquiry in 2012 into an Executive Order banning contraceptives in wider Manila city (a request I co-drafted at the Center for Reproductive Rights) and, more recently another inquiry into laws that unreasonably restrict access to abortion for women and girls in Northern Ireland. Other monitoring bodies have also brought visibility to domestic laws that violate international human rights such as the Committee on the Rights of Persons with Disabilities that conducted its inquiry from 2018-2019 into discrimination in the law (and in practice) against people living with disabilities in Hungary.
On an Equal Basis with Others: Deaf Community Access to Emergency Broadcasting Through Bushfires and a Pandemic – Part II: The CRPD and Access to Information – Stephanie Triefus
This piece continues from Part I of this series authored by Shirley Liu.
Introduction
Access to information is a key component of the full enjoyment of human rights and fundamental freedoms. Without accessible, timely and complete information, people cannot live independent and full lives, and their safety may be at risk. The reality of this situation for the Deaf Community (those who use Auslan to communicate) in Australia during natural disasters such as the 2019-2020 bushfire crisis and global health crises such as the Coronavirus pandemic was made clear by Shirley Liu in Part I of this series. This second part sets out international legal obligations arising from the Convention on the Rights of Persons with Disabilities (CRPD), along with how these rights have been interpreted by the Committee on the Rights of Persons with Disabilities (the Committee). Deafness falls under the disability framework as it is a sensory impairment which, in interaction with various barriers, may hinder a person’s full and effective participation in society on an equal basis with others (CRPD, Article 1) – however it should be remembered that ‘it is the environment that is disabling, not the impairment itself’.
Interview with Dr Julie Fraser: Social Institutions and International Human Rights Law Implementation – Part II: Social institutions and dynamism
In Part I of this series, Dr Julie Fraser and ILA Reporter Assistant Editor Stephanie Triefus discussed how social institutions can be used to overcome the lack of resonance of human rights discourse around the world, including Australia. This part delves deeper into what social institutions are, how they change, and busts some myths about the concept of culture.
ST: Religion is so structured that it seems to have more in common with public institutions, whereas other social institutions like the media, universities etc are more fast and loose, so it really depends on who sets up these organisations and what their intentions are.
JF: I like the term fast and loose! I think I phrase it in my book as ‘dynamic and evolving’. But that really is it. All of these social situations, because they’re part of our culture, are fast and loose – to varying degrees. Even though we might think of religion as ancient and that we’ve had these practices for sometimes thousands of years, they are constantly changing. For example, Muslims may still pray five times a day, but they now can download smartphone apps that tell the prayer times and play the call to prayer. So yes, the norms and rules do change based on different influences, and this is the beauty of social institutions: they give the perception of permanence despite constant evolution. We can all be agents within our culture – and if we can bring our social institutions more in line with human rights, then it can be really powerful. And that approach again goes against the legalistic top-down approach. Instead of the international community or national government imposing certain rules, it’s individual people within their social institutions saying, ‘we want these rules’. In my case study, it was Muslim women from within Islamic organisations saying, ‘we want equality and we want reproductive rights’. And that is really powerful.
Ensuring Respect for International Humanitarian Law: what it looks like in practice – Eve Massingham and Annabel McConnachie
It would be reasonable to expect that the very first article of the most widely accepted of international legal treaties – Common Article 1 to the four Geneva Conventions of August 1949 (CA1) – had been extensively studied. Yet, as a small number of commentators have noted, this is not the case, and indeed, this article has perhaps always attracted less attention than it arguably should have (see for example, Kalshoven at p.16, 27-28). When the ICRC embarked on its now published (2016) Geneva Convention Commentary update project, it was clear that some renewed interest in CA1 would ensue. And indeed it has. Sparking some healthy debate.
CA1 asserts that the High Contracting Parties must respect the Conventions ‘in all circumstances’. This requires States to implement the law within the Conventions domestically and adhere to the rules in good faith, in times of war and peace. In addition, States must also ‘ensure respect’ for the Conventions – and it is this obligation which is the most interesting to examine.
We began our own exploration of the concept of ensuring respect for IHL by focusing on how States approach the laws pertaining to weapons regulation. Following on from this body of work, we began considering what ensuring respect might look like across a range of different areas of IHL (such as targeting, detention and the actions of private actors or foreign fighters). To this end we approached a number of experts with areas of interest where we felt it might be possible to observe whether, and how, States fulfil this obligation – indeed, whether they consider it to be a legal obligation at all. The results of those considerations are contained in Ensuring Respect for International Humanitarian Law published by Routledge in August 2020.
On an Equal Basis with Others: Deaf Community Access to Emergency Broadcasting Through Bushfires and a Pandemic – Part I: Advocating for Access – Shirley Liu
Introduction
In 2019, as bushfires raged across the lower east coast of Australia, emergency broadcasting became a lifeline to those in affected areas. Australians watched in horror as families huddled on beaches waiting to be rescued and skies turned from smoky grey to red. However, not everyone was able to access the information they needed to stay safe. Press conferences concerning the fires were frequently conducted without Auslan interpreters, and where interpreters were present, they were often cropped from the screen or too small to understand. Article 9 of the Convention on the Rights of Persons with Disabilities (CRPD), to which Australia has been a party since 2008, states that States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to information and communications provided to the public, including emergency services, and shall eliminate obstacles and barriers to accessibility. With climate change and globalisation ensuring that the emergencies will keep coming thick and fast, it has never been more important to ensure that everyone has equal access to information. This post sets out the civil society and legal framework around the rights of deaf individuals in Australia, the issues with access to emergency broadcasting, and a call to action for greater awareness by the mainstream media and political decision makers about the needs of the deaf community. Part II of this series considers how international human rights law deals with access to emergency information for people with disabilities.
Interview with Dr Julie Fraser: Social Institutions and International Human Rights Law Implementation – Part I: Lessons for international human rights implementation in Australia
Human rights are now extensively codified in international treaties that enjoy widespread State ratification. The pressing challenge of today is therefore the realisation of human rights in States parties around the world. This has been a difficult task for both governments and international human rights bodies that supervise human rights compliance, which have to date typically taken a legalistic approach. Prioritising State-centric legislative measures in the implementation of human rights, while necessary to an extent, is not always the most effective method of translating human rights law into lived experience. The use of non-legal, culturally sensitive measures is typically neglected in international human rights discourse, to the detriment of implementation in societies where human rights can be seen as a foreign imposition. Dr Julie Fraser’s book Social Institutions and International Human Rights Law Implementation: Every Organ of Society, recently published by Cambridge University Press, addresses this problem by examining the permissibility of other measures of implementation and advocating culturally sensitive approaches for realising human rights. Dr Julie Fraser is a human rights lawyer with experience in both academia and practice. As an Assistant Professor with the Netherlands Institute of Human Rights (SIM) at Utrecht University, Dr Fraser has published, presented, and taught on topics including human rights law, women’s rights, and transitional justice.
Using Islam in Indonesia as a case study, Dr Fraser demonstrates how the right to reproductive health has been successfully implemented through the central involvement of Islamic law and institutions, complemented by grassroots advocacy by Muslim women. Dr Fraser joined Assistant Editor Stephanie Triefus for a conversation about her study and its resonance for Australia’s domestic implementation of human rights.
A stitch in time: Examining the Ayyash et. al. verdict – Raghavi Viswanath
On 18 August 2020, the Special Tribunal for Lebanon (‘STL’) issued its long-anticipated judgment on the trial of the four accused of killing former Lebanese Prime Minister Rafik Hariri and 21 others in an explosive attack in February 2005. After a six-year long trial that brought 297 witnesses and 3135 exhibits to the stand, the Tribunal found one of the four accused, Salim Ayyash, guilty of being a co-perpetrator of a terrorist act, of intentional homicide, and of conspiracy to assassinate Hariri. The remaining accused were acquitted on all counts.
The judgment has drawn charged responses – from academics, civil society, and the victims. This does not come as a great surprise; after Hariri’s assassination, Lebanon plunged into a state of political anarchy, with its former Western and Gulf allies warring with terrorist outfits such as the Hezbollah. Lebanon has not recovered since, a prospect which has only become bleaker after the debilitating explosion in Beirut in August 2020.
For the people of Lebanon, a judgment by an internationalized tribunal on terrorism in Lebanon presented an opportunity to recognise and validate their plight, particularly that of the victims of the February 2005 blast. This explains why many victim groups were unhappy about the acquittals in Ayyash et. al. Compounded by the fact that the trial was removed from the seat of the political conflict and the Tribunal did not have the authority to award reparations, the Tribunal is regarded by some to have failed the victims.
The two managing bodies of China’s social credit system have proposed reforms to the policy scheme – but is their report a toothless monster? – Katie Jones
This piece explores the extra-legal basis of China’s social credit system and the recent proposals to reform the scheme through a progressive vision of legality, consistency and clarity. However, the proposed developments struggle to substantiate how such ideals will be achieved in practice without any legislative mandate.
Introduction
China’s social credit system (SCS) collates public credit data with the objective of increasing social, corporate and government trustworthiness by administering a range of incentives and penalties that motivate compliance with the law. The administration of the SCS varies regionally, as provincial governments enforce a localised criterion upon which public credit data is assessed. Notably, the SCS does not currently operate under a legislation mandate, but as a national policy scheme dually managed by the National Development and Reform Commission and the People’s Bank of China.
With Open Arms: Could Australia’s weapons exports be at odds with its responsibilities under international law? – Suzanne Varrall
This piece explores the link between international arms transfers and serious violations of international humanitarian law and human rights, and how Australia’s arms exports strategy may be at odds with its obligation to respect international humanitarian law and abide by the Arms Trade Treaty.
Introduction
In Yemen, the Arab world’s poorest country is currently experiencing what the UN has labelled the world’s worst humanitarian crisis. Numerous violations of international humanitarian law and human rights have been documented since March 2015, when Saudi Arabia and the United Arab Emirates (UAE) initiated an international intervention in support of ousted President Hadi. Yet, four years after the conflict began, and with the benefit of significant evidence linking arms supplied by Western countries to indiscriminate civilian attacks in Yemen, the Australian government issued 42 licences to export military or dual-use equipment to Saudi Arabia and the UAE in 2019. The authorisation of these arms transfers comes after the announcement by the government of an ambitious defence export strategy in 2018, aimed at moving Australia into the top ten arms supplying countries in the world and pledging a A$3.8 billion fund to help local arms exporters enter the international market. This post reflects on whether such a strategy is at odds with Australia’s obligations in respect of international humanitarian law and human rights, and whether it could ultimately undermine Australia’s reputation as a global leader on arms control.