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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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.