Tag: International Human Rights Law

How should Australia respond to asylum seekers arriving by sea during the COVID-19 pandemic? – Madeline Gleeson

Editors Analysis, Articles

Since the introduction of Operation Sovereign Borders in 2013, Australia has pursued a determined policy of intercepting and turning back asylum seekers trying to reach Australia by sea. Whether people are turned back at sea to their country of departure, or taken into Australian custody and then handed back directly to the authorities of that country, these practices have given rise to serious concerns about their compliance with international law. In the context of the global COVID-19 pandemic, it is worth re-examining these concerns and considering the international human rights obligations that should inform Australia’s response to an asylum seeker vessel arriving during the current crisis. 

Australia’s response to asylum seekers arriving by boat during the pandemic

In 2020, the COVID-19 pandemic radically changed the governance of borders worldwide. Both at their external boundaries and internally, many States imposed unprecedented restrictions upon the entry and movement of citizens and foreign nationals. 

For most purposes, Australia’s external borders remain ‘closed’. Australian Border Force liaison officers are working with airlines at overseas airports to identify those who should not board flights to Australia, ensuring they do not reach Australian soil. There is also a ban on foreign-flagged cruise ships entering Australian waters, and non-commercial vessels such as yachts and superyachts must comply with certain restrictions. 

While contentious and imperfect in their application to Australian citizens and permanent residents abroad, these border restrictions are, overall, reasonable and proportionate. But how might Australia respond to the arrival of an asylum seeker vessel during this period? 

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Remedies And The Role Of Corporations: Learning From The Jukaan Gorge Explosion – Justin Jos

Editors Analysis, Articles

This piece examines whether business-driven remediation processes, such as Operational-level Grievance Mechanisms, should allow corporations to act as the remedy provider in cases of corporate human rights abuse.

Introduction

The blowing up of a cave in Jukaan Gorge by mining giant, Rio Tinto, for expansion of an iron ore mine in the Hammersley Ranges of Western Pilbara, caused huge public outrage in Australia and across the globe. Some experts argued that the act of blowing up the cave was within the law while pointing out the deficiencies in the current local laws, especially Western Australia’s Aboriginal Heritage Act 1972. One deficiency in the Act is the absence of a statutory requirement ensuring traditional owners be consulted on matters pertaining to cultural heritage. As a fallout of the blast and growing investor pressure, the CEO of Rio Tinto along with two other senior executives had to resign from their positions. This step was welcomed by the National Native Title Council and hailed as the “first step to recovery”. After the announcement of a Senate inquiry and a visible public relations crisis, Rio Tinto pledged to conduct a review of its heritage management processes and subsequently released a document titled “Board Review of Cultural Heritage Management.” In this document, Rio Tinto expressed its unreserved apology and highlighted the priorities for change in its heritage management processes, including working closely with the traditional owners of the land, the Puutu Kunti Kurrama and Pinikura people (PKKP). However, the fact of the matter was that the damage had been done and the Aboriginal site lost. The remedy offered for heritage destruction was largely corporate driven with limited involvement of the state. The idea of inclusion of the corporate actor as part of the solution to a corporate wrongdoing is not novel. The United Nations Guiding Principles on Business and Human Rights  (UNGPs) provide some guidance on this. In the UNGPs, the notion of providing remedies through business-driven remediation processes is known as Operational-level Grievance Mechanisms (OGMs). The theoretical underpinning for OGMs is enshrined in Principle 29 of the UNGPs where it states that “business enterprises should establish or participate in effective operational-level grievance mechanisms.”

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The public order exception in international trade, investment, human rights and commercial disputes – Zena Prodromou

Editors Analysis, Articles

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.

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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

Editors Analysis, Articles 1 Comment

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’.

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Interview with Dr Julie Fraser: Social Institutions and International Human Rights Law Implementation – Part II: Social institutions and dynamism

Editors Interviews, Opinion

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.

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On an Equal Basis with Others: Deaf Community Access to Emergency Broadcasting Through Bushfires and a Pandemic – Part I: Advocating for Access – Shirley Liu

Editors Analysis, Articles 2 Comments

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.

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Interview with Dr Julie Fraser: Social Institutions and International Human Rights Law Implementation – Part I: Lessons for international human rights implementation in Australia

Editors Interviews, Opinion 1 Comment

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.

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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

Editors Analysis, Articles

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. 

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With Open Arms: Could Australia’s weapons exports be at odds with its responsibilities under international law? – Suzanne Varrall

Editors Articles

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. 

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Human rights and climate change in the courts: An international trend – Tess Van Geelen

Editors Analysis, Articles

This is the second article in a two-part series examining the increasing recognition of the relationship between human rights and climate change in international and domestic law. The first part looked at a milestone legal action recently launched in Queensland, while this second part outlines the international context.

Last month the Environmental Defenders Office (EDO) launched a legal challenge against the Galilee Coal Project in Australia. The legal action was the first in an Australian court to spotlight the devastating impact of climate change on human rights. Internationally, however, the case joins an established and growing trend of public interest litigation before international and domestic courts.

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