Events and Opportunities – December 2021

Jobs

Internship positions, various UN departments and agencies, various locations 

A variety of UN internship positions are currently open. Please see the following links for internship positions with application deadlines in December 2021: 

https://careers.un.org/lbw/jobdetail.aspx?id=168833&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=167119&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=149131&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=151084&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=167348&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=166988&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=167956&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=166998&Lang=en-US

Legal Officer, P4, United Nations Assistance to the Khmer Rouge Trials, Phnom Penh 

Applications close on 8 December 2021. See here for more information: https://careers.un.org/lbw/jobdetail.aspx?id=169105&Lang=en-US 

Legal Advisor, P4, UN Office of the High Commissioner for Human Rights, Geneva 

Applications close on 8 December 2021. See here for more information: https://careers.un.org/lbw/jobdetail.aspx?id=169217&Lang=en-US 

Senior Legal Officer, P5, UN Support Office, Mogadishu

Applications close on 9 December 2021. See here for more information: https://careers.un.org/lbw/jobdetail.aspx?id=166922&Lang=en-US 

Legal Officer, P4, UN DPPA-SPM cluster II, New York 

The position is located in the Office of the Ombudsman, a Special Political Mission administered and supported by the Department of Political and Peacebuilding Affairs. Applications close on 10 December 2021. See here for more information: https://careers.un.org/lbw/jobdetail.aspx?id=165813&Lang=en-US  

Legal Officer, P4, UN Office of Administration of Justice, Nairobi 

Applications close on 11 December 2021. See here for more information: https://careers.un.org/lbw/jobdetail.aspx?id=168225&Lang=en-US 

Law and Policy Outreach Advisor, International Committee of the Red Cross, Geneva 

Education and experience required for the position include an advanced university degree in international studies (eg international relations, development, political science, humanitarian action, international law), 5 years’ professional experience in a related field and ICRC field or HQ experience. Applications close on 12 December 2021. See here for more information: https://careers.icrc.org/job/Geneva-%28GVA%29-Policy-Advisor-18179/743313401/  

Research fellow in Law (South Sudan Project), Max Planck Foundation, Heidelberg, Germany 

The Max Planck Foundation for International Peace and the Rule of Law is looking to fill one project-related Research Fellow position in the Sub-Saharan Africa projects team. The Research Fellow will implement project activities promoting the rule of law, including capacity building workshops and technical legal advice in the areas of international public law and constitutional law. Specific topical focus areas could include comparative constitutional law, legislative drafting, rules of procedure and judicial mechanisms. Applications close on 12 December 2021. See here for more information: https://www.mpfpr.de/job/research-fellows-m-f-d-in-law-south-sudan-project/ 

Research Fellow, Law of the Sea, UNSW Law & Justice, Sydney 

UNSW Law and Justice is currently recruiting a research fellow. The Research Fellow will contribute towards the research project of SHARP Professor Natalie Klein of the UNSW Law & Justice Faculty (School of Public and Global Law). The research project will be focused on the law of the sea, maritime security, state responsibility and international dispute settlement. Applications close on 19 December 2021 at 11:30pm. See here for more information: https://www.seek.com.au/job/55112527?type=standout#searchRequestToken=fc8c85d3-ec8c-4301-8b62-07e01abe376d 

Head, Gender and Children Unit, International Criminal Court, The Hague 

Applications close on 19 December 2021. See here for more information: https://career5.successfactors.eu/sfcareer/jobreqcareer?jobId=21143&company=1657261P  

Senior Trial Lawyer, International Criminal Court, The Hague 

Applications close on 23 December 2021. See here for more information: https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=21147&selected_lang=en_GB&jobAlertController_jobAlertId=&jobAlertController_jobAlertName=&browserTimeZone=undefined&_s.crb=COAfOHKYg1Kah%2b8CvLbFLKasuooR/TyifeKG1%2bXCxCE%3d 

Legal Officer, P3, UN Office of Legal Affairs, New York 

Applications close on 24 December 2021. See here for more information: https://careers.un.org/lbw/jobdetail.aspx?id=168197&Lang=en-US 

Principal Legal Officer, D1, UN Department of Management Strategy, Policy and Compliance, Office of the Under-Secretary-General, New York 

Applications close on 2 January 2022. See here for more information: https://careers.un.org/lbw/jobdetail.aspx?id=169057&Lang=en-US 

Regional Legal Advisor on Maritime Issues, Asia Pacific Region, International Committee of the Red Cross, Bangkok 

The regional legal adviser (RLA) on maritime issues works in support of all delegations in the Asia Pacific region. They play a key role in achieving institutional, regional and delegation objectives related to positioning the institution as a key reference organisation on maritime humanitarian action, the law of armed conflict at sea and other relevant legal norms, and more broadly the creation of an environment conducive to respect for the law. They contribute to strengthening ICRC dialogue with national authorities, and intergovernmental organisations and academia / think tanks, as well as facilitating ICRC acceptance and operational activities. Applications close on 9 January 2022. See here for more information: https://careers.icrc.org/job/Bangkok-%28BAN%29-Regional-Legal-Advisor-on-Maritime-Issues-Asia-Pacific-region-based-in-Bangkok-%28Thailand%29-18193/747513801/ 

Assistant Professor of International Law, The Graduate Institute of International and Development Studies Geneva, Switzerland 

The successful candidate will be affiliated to the Department of International Law. S/he will teach postgraduate courses and supervise master’s dissertations and PhD theses in the Department of International Law. S/he may also be called upon to teach classes and supervise master’s dissertations in the interdisciplinary programme, as well as contribute to executive education programmes. The Institute being interdisciplinary, the selected candidate should be interested in interdisciplinary dialogue, teaching and research. Applications close on 10 January 2022. See here for more information: https://erecruit.graduateinstitute.ch/professeurs/?page=advertisement_display&id=374&lng=en 

Judicial Fellowship Programme, International Court of Justice 

The International Court of Justice (ICJ) invites applications from eligible universities around the world for the 2022-2023 Judicial Fellowship Programme (formerly known as the University Traineeship Programme). Universities must nominate candidates for the program, the Court does not accept applications from individuals. The deadline for submission of applications is 3 February 2022. See here for more information: https://www.icj-cij.org/en/judicial-fellows-program 

Opportunities

LLM in International Law, Graduate Institute of International and Development Studies Geneva,  

Applications are now open for the LL.M. in International Law at the Graduate Institute, Geneva, for the academic year 2022-2023 starting in September 2022. The intensive 10-month programme offers a wide course selection, covering not only the foundations of public international law but also allowing students to specialise in one of three different concentration streams: Protection of the Individual in International Law, International Environmental Law and Governance, and International Economic Law. The deadline to apply is 15 January 2022. Apply https://www.graduateinstitute.ch/executive-education/programmes/llm-international-law

Call for Submissions, Melbourne Journal of International Law  

Submissions are invited for volume 23(1) of the Melbourne Journal of International Law, to be published in June 2022. Submissions are due by 31 January 2022. For further details, see here: https://law.unimelb.edu.au/mjil#submissions   

Academy on Human Rights and Humanitarian Law, Human Rights Essay Award  

Essay competition topic for 2022 is ‘Climate Change and Human Rights: Impacts, Responsibilities, and Opportunities’. Submissions are due by 31 January 2022. Open to law graduates across the world and the prize for best submission includes a full scholarship to the Program of Advances Studies on Human Rights and Humanitarian Law, travel expenses to Washington, living expenses and accommodation.  See here: https://www.wcl.american.edu/impact/initiatives-programs/hracademy/award/ 

Call for Presentations, Online Conference on Protection of Human Rights in the Pandemic of COVID-19, ILA Ukrainian Branch  

Applications open to present at the ILA Ukrainian Branch online conference on “Protection of human rights in the pandemic of COVID-19”, scheduled 10 December. Presentations shall be 8 – 10 minutes. To apply to participate, email ila.ukraine@actio.com.ua your name, national branch and any information you would like to present (including the subject of report if any) before 9 December. 

ICC International Commercial Mediation Competition, Volunteers 

Applications are currently open for volunteers to support the ICC Organising Committee throughout the ICC Mediation Week. Applications close on 17 December 2021. A high level of responsibility is given to volunteers who act as “Mediation Session Supervisors” during the sessions. The ICC Mediation Competition gathers 350+ students and coaches, as well as 150+ professional mediators and academics from across the world and numerous volunteers, sponsors and observers. 

Events

Webinar discussion, Recent Trends in Climate Litigation and Human Rights, Monash University 

There is increasing recognition of the intersection between human rights and climate change. On 8 October 2021, United Nations Human Rights Council resolution A/HRC/48/L.23/Rev.1 recognised the human right to a safe, clean, healthy and sustainable environment, and recognised the implications of climate change for this right. A cognate resolution (A/HRC/48/L.27) established a Special Rapporteur on the promotion and protection of human rights in the context of climate change. 

The human rights implications of climate change are also being increasingly recognised in litigation. Cases such Leghari v Pakistan, Urgenda v The Netherlands and Neubauer v Germany established new readings of traditional human rights in a climate context. The ongoing case of Juliana et al. v US seeks recognition of a right to a stable climate as an extension of existing rights under the United States Constitution. Like litigation is pending in Brazil. Rights-based litigation in Australia is nascent. There is an increasing diversity of rights-based claims, including a recent complaint brought by eight Torres Strait Islander people against the Australian government to the United Nations Human Rights Committee. 

The online discussion will be held on 9 December 2021. For more information and to register, see here: https://www.monash.edu/law/events/recent-trends-in-climate-litigation-and-human-rights 

Webinar discussion, China’s CBDC and International Landscape, UNSW Law & Justice 

Central bank digital currency (CBDC) is a game changer for the economy in digital era. As a fiat currency, CBDC affects numerous actors ranging from commercial banks and other businesses to households. It brings new issues, including data regulation and a new CBDC ecosystem that will profoundly affect business practice and even daily life. China is likely the first major economy to issue CBDC. An increasing number of countries are also exploring CBDC. This event will discuss cutting-edge issues. For instance, what is the future of CBDC? How would it likely affect banks, other businesses and the public? How would market players engage with it? What would the international landscape look like after its official launch? 

The online discussion will be held on 10 December 2021. For more information and to register, see here: https://www.events.unsw.edu.au/event/chinas-cbdc-and-international-landscape 

Webinar Discussion, Fairnessn International Criminal Justice: Reality or Utopia?, Association of Defence Counsel Practising Before the International Courts and Tribunals 

At ADCICT’s annual conference on 4 December 2021, panel topics are: can politics influence fair trials?; how can faulty evidence fail justice?; the issues after acquittal in the Bemba Case at the ICC, and ne bis in idem in light of the Katanga case. Panelists include Judge Joanna Korner QC, Judge at the International Criminal Court, former Prosecutor at the ICTY. Register at https://www.adc-ict.org/annualconference  
 

Webinar discussion, New South Wales Young Lawyers Human Rights Day Panel 

On 7 December 2021 the NSW Young Lawyers Human Rights Committee‘s flagship International Human Rights Day panel event will consider: “When home is not a safe haven: The social crisis of domestic violence and the impact of COVID-19 on its victims”. The panel will discuss how the unequal status of women and gender-based violence threatens women’s rights to safety, respect and bodily autonomy, how this has been affected by the COVID-19 pandemic and how the legal profession can act to address domestic violence. Registration is free for members, and $10 for non-members. Register at https://lawsociety.eventsair.com/2021-nsw-young-lawyers-international-human-rights-day-panel-event/register/Site/Register  

The Proposed Reform of the Chinese Arbitration Law and its Impacts on Foreign Parties: Part II

The Chinese lawmaker, being the Ministry of Justice of the PRC, recently published a draft revised New Chinese Arbitration Law for public consultation, which suggests a series of major changes. While most of the changes are in line with the international practice, there are also significant deviations from the commonly accepted practice suggested by the UNCITRAL Model Law. This series aims to highlight the changes and briefly evaluate its impact on foreign parties in dealings with Chinese parties, who may face potential arbitration proceedings in China. This is part two of a two-part series.

In part one, we addressed how the draft of the amended Chinese Arbitration Law (‘the Draft’) modifies the test for the validity of arbitration agreements, adopts the competence-competence principle, expressly recognises the legal concept of the ‘seat of arbitration’, and creates more flexibility in the arrangement of arbitration proceedings. In part two, we consider the provisions for interim measures and emergency arbitrators, med-arb practice, and judicial review mechanisms that are available under the Draft. 

V. Interim Measures and Emergency Arbitrators 

Current Chinese arbitration practice is that interim measures only include the preservation of property and evidence, which is an order that must be issued with the assistance of supervisory courts. Articles 43-49 of the Draft expands the types of interim measures to ‘act preservations’ (which is similar to the concept of injunctions in common law systems) and other necessary interim measures, and confirms that both arbitral tribunals and courts may deal with the relevant applications. In particular, tribunal-made interim measures can be enforced by relevant courts. Article 49 further confirms that emergency arbitrators can be used for the issuance of interim measures before the establishment of the arbitral tribunal. The addition of these provisions provides additional protection for parties involved in arbitration proceedings based in China.  

VI. Mediation and Arbitration 

The practice of med-arb, or mediation by arbitrators, has long been seen as one of the distinctive features of the Chinese arbitration practice. This is reflected in article 51 of the CAL. It is notable, however, that this approach is quite controversial due to the ‘double hats’ worn by the arbitrators and the potential ex parte communications made in the process (see Gao Haiyan v Keeneye CACV 79/2011). The Draft now allows the parties to choose external mediators or mediation institutions during the arbitration proceeding as an alternative, which properly addresses the ‘double hats’ concern. In addition, the Draft further confirms current Chinese practice that the settlement agreement between the parties, whether resulting from mediation or not, could be confirmed by the arbitral tribunal in the format of a ‘Mediation Document’ or an arbitral award, which are equally enforceable (articles 69-71). This is an innovative feature of Chinese arbitration which foreign parties might pay attention to and utilise in practice.   

VII. Judicial Review Mechanism 

The current CAL adopted a ‘dual track’ mechanism in the judicial review of arbitral awards. While domestic arbitration law imposes stricter requirements on arbitral awards and allows limited substantive review on the merits (for example, allowing a review on forged evidence), judicial review on foreign-related arbitral awards is subject to a more lenient review scheme similar to the Model Law and the New York Convention.  

The Draft, however, now merges these two mechanisms and extends the more conservative approach to foreign-related awards. Under article 77 of the Draft, an arbitral award might be set aside if: 

(1) there is no arbitration agreement, or the arbitration agreement is invalid; 

(2) the disputed matter is not covered by the arbitration agreement or not arbitrable under this law; 

(3) the respondent does not receive proper notice of the appointment of arbitrators or the arbitration proceeding, or failed to present themselves for other reasons not attributed to themselves; 

(4) the constitution of the arbitral tribunal or the arbitration proceeding violates Chinesethe laws or the agreement between the parties, which severely infringes the rights of a party; 

(5) awards resulted from fraudulent conduct such as malicious collusion or the forgery of evidence; or 

(6) arbitrators were involved in bribery or acted in their own personal interests over the law in determining the case. 

In addition, the arbitral awards shall be set aside if it is against the social public interest. 

This means that, regardless of whether a foreign party is involved, the arbitral award would be subject to limited substantive review on the merits, including possible issues of fraud. This is a significant deviation from the ‘procedural review’ approach in the New York Convention and the Model Law, which foreign parties should take into account. 

Furthermore, the Draft only maintains the above judicial review mechanism for judicial review conducted by a supervisory court for the purpose of setting aside of the award, and removes judicial review by an enforcing court (except on the ground of violating the social public interest). This means that the judicial review of arbitral awards will be predominantly conducted by the supervisory court (the court of the place of arbitration), rather than the enforcing court (where the business or property of the losing party is located in China). This is significantly different from the Model Law, which provides an identical judicial review mechanism at both the place of arbitration and at the place of enforcement (articles 34 and 36 of the Model Law). Thus, if the parties choose arbitration in China, the choice of place of arbitration is of great significance. In particular, foreign parties might take into account whether the courts at the place of arbitration (whether it be the particular city or municipality) have sufficient experience in producing consistent, high-quality decisions on arbitration-related matters. 

A final change regarding the judicial review mechanism is the newly added ‘review’ of the court’s decision on the setting aside of arbitral awards. In the past, the decision by the court to set aside an award has been final, subject to a possible internal ‘prior reporting system’ applicable to foreign-related awards or domestic awards.  The prior reporting system was an internal procedure adopted by the Chinese judicial system to review the cases in which an arbitration agreement is decided to be invalid, or an arbitral award is set aside or refused enforcement. If an Intermediate People’s Court made such a decision, they had to first report the case to the relevant High People’s Court. If the High People’s Court agreed with the decision, depending on the nature of the dispute, they could be required to report the matter further to the Supreme People’s Court for comment (see an appraisal of the Prior Reporting System here). 

The Draft now provides that the party who is unsatisfied with the setting aside of an arbitral award may request a review (not appeal) of the decision to the higher court. The key difference between the ‘prior reporting system’ and the request for review is that the former is an internal procedure initiated and managed by the courts, while the latter is a formal procedure offered to the parties, in which the relevant party can make submissions and expect a formal decision to be made. It is uncertain whether the ‘prior reporting system’ still applies when such formal remedy is provided to the parties under the Draft.  

VIII. Conclusion 

The Draft is only the first step of many for amending the Chinese Arbitration Law (CAL). This project is not a top priority in the Chinese lawmaker’s working plan and is yet to be submitted to the National People’s Congress or its Standing Committee for reading (for the 2018-2023 Working Plan of Law-Making of the Standing Committee of the National People’s Congress, see here; for the 2021 Working Plan of Law-Making of the State Council, see here). It is therefore expected that any suggested changes will not be finalised for at least a few years. It remains to be seen whether these new features will be furthered in the next step of law-making and ultimately adopted in the new CAL in the future.  

Despite this, the Draft sends a positive signal, as many features are in line with key concepts and best practice in international arbitration, such as the adoption of the competence-competence principle, the wider use of interim measures, the less rigid approach to determining the validity of arbitration agreements, as well as limited acceptance of ad hoc arbitration. These features would be welcomed by foreign parties and counsel dealing with disputes with Chinese parties. At the same time, the distinctive features of arbitration in China as reflected in the Draft, such as the use of mediation in arbitration proceedings and the removal of the enforcement of judicial review for awards made in China, may bring foreign parties and counsel some uncertainty in dispute-resolving processes with Chinese parties.  

Dr Shu Zhang is a Lecturer in Law at Deakin Law School, Deakin University. Dr Peng Guo is a Lecturer in Law at the Graduate School of Business and Law, RMIT. 

Event: ILA (Australian Branch) AGM and End of Year Event, 1 December 2021

The International Law Association (Australian Branch) invites its members to its Annual General Meeting, to be held at 6:30 pm on Wednesday 1 December 2021 via Zoom.

The AGM will be followed at 7:00 pm by the End-of-Year Event, featuring a presentation by Emerita Professor Christine Chinkin, Chair of the International Law Association, on Women, Peace and Security: the Security Council Agenda and International Law.

Christine Chinkin, FBA is Emerita Professor of International Law, Professorial Research Fellow and Founding Director of the Centre of Women Peace & Security at LSE. Together with Hilary Charlesworth, she won the American Society of International Law, 2005 Goler T. Butcher Medal ‘for outstanding contributions tothe development or effective realization of international human rights law’. She is a L. Bates Lea Global Law Professor at the University of Michigan Law School. She has held visiting appointments in Australia, the United States, Singapore and the People’s Republic of China. She was a member of the Human Rights Advisory Panel in Kosovo for over six years and was Scientific Advisor to the Council of Europe’s Committee for the drafting of the Convention on Preventing and Combatting Violence against Women and Domestic Violence.

The presentation is open to both members and non‑members. There is no cost to register for the event.

Registration is essential and via Eventbrite: RSVP for the AGM (members only) and/or End-of-Year event.

Reflections on Hilary Charlesworth’s Appointment to the International Court of Justice – Isabelle Peart

On 5 November 2021, Professor Hilary Charlesworth AM FASSA FAAL was elected as a member of the International Court of Justice (ICJ). She is the first Australian woman to serve in the position and fifth female judge of the Court. Judge Charlesworth succeeds the late Judge James Crawford, who served from November 2014 to May 2021. She will fill the remaining term until 5 February 2024. 

Members of the ICJ are elected by the United Nations General Assembly and Security Council. When a judge of the ICJ is unable to complete their term, they will typically be replaced by a judge of the same nationality. This happened with the elections of Judge Yuji Iwasawa from Japan (replacing Judge Hisashi Owada), Judge Joan E Donoghue from the United States (replacing Judge Thomas Buergenthal), and Judge Xue Hanqin from China (replacing Judge Shi Jiuyong). However, there is no formal rule requiring this. When Judge Mohammed Bedjaoui from Algeria and Judge Awn Al-Khasawneh from Jordan resigned in 2001 and 2011 respectively, they were replaced by judges of different nationalities (Judge Nabil Elaraby from Egypt, and Judge Dalveer Bhandhari from India). 

Along with Judge Charlesworth’s nomination by Australia, Greece nominated Linos-Alexandre Sicilianos, a former president of the European Court of Human Rights. Judge Charlesworth was elected with an absolute majority of votes in both the United Nations General Assembly and Security Council. 

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Is The United States’ Post 9/11 Surveillance State Effective? – Tooru Nishido

With the 20th anniversary of 9/11 having recently passed, this article aims to briefly outline the history of the post-9/11 data surveillance apparatus operated by the United States, how it impacts the international community, including Australia, and whether the surveillance apparatus has been effective in preventing further terrorist attacks.

Introduction

In the immediate aftermath of the 9/11 terrorist attacks, the United States Congress enacted sweeping legislation that expanded the counterterrorism data surveillance framework in direct response to perceived intelligence shortfalls. The Foreign Intelligence Surveillance Act 1978 (FISA) is the principal piece of legislation underpinning most surveillance activities conducted by the US globally. However, three critical pieces of legislation amended FISA post-9/11: the USA PATRIOT Act 2001FISA Amendments Act 2008 and USA FREEDOM Act 2015. These provided various government entities, including the National Security Agency (NSA), broader data surveillance powers across existing and emerging communication technologies. The acceptance and proliferation of bulk data surveillance was largely unchallenged until 2013 when Edward Snowden, an NSA contractor, disclosed documents which exposed the true scope of the US intelligence community’s data surveillance activities

The US Data Surveillance Framework

Under FISA, a specialised secret court, the FISA Court (FISC), was established to hear applications for various surveillance warrants and activities related to classified information. The purpose behind this was to reduce potential unauthorised disclosures and avoid typical procedural or evidential requirements. The FISC is composed of Federal District Court judges who are appointed by the Supreme Court Chief Justice and serve seven-year terms. Application hearings are typically conducted secretly and ex parte before a single judge with at least one judge available 24/7 to authorise emergency applications. 

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The Origins of the Right to a Healthy Environment in the Inter-American Human Rights System — Merve Kilic

For more than two decades, the interrelation of the enjoyment of human rights and a healthy environment has been recognised in the Inter-American Human Rights System. This shows that the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have been willing to interpret the legislative framework — consisting primarily of the American Declaration of the Rights and Duties of Man (the ‘American Declaration’) — in light of changing conditions. Further, in the case of Bámaca-Velásquez v. Guatemala (2000), the Court highlighted the importance of intergenerational justice by stating that the concept of ‘solidarity’ involves past, present and future generations, which also challenges the individualism that has dominated human rights protection (at [23]).

In the Inter-American human rights system, access to protection regarding the right to a healthy environment of individuals and communities is highly possible, since victims, third persons, or NGOs can bring cases before the Commission and Court. Their jurisprudence has mainly been developed in the context of claims of the right to property of indigenous peoples in the case of environmental destruction, which is an important step in the development of a broader approach for general interest (see, for example, the cases of Saramaka People v. Suriname and Mayagna (Sumo) Awas Tingni Community v. Nicaragua). 

In particular, the Inuit petition, which was submitted to the Commission in 2005, changed the dialogue around climate change and its interrelation with human rights. In that case, the petitioners argued that the lack of policy for protecting them from greenhouse gas emissions amounted to a violation of their human rights. However, the Commission refused to proceed with the claim, reasoning that the petitioners failed to provide sufficient information on whether the claim was within the scope of the rights protected ​under the American Declaration. Nonetheless, after that case, a new understanding took shape in the region regarding a healthy environment and its relationship with human rights.

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Events and Opportunities Update – November 2021

Welcome to the second in our new series summarising events and opportunities relevant to our readership. To submit an item for inclusion on this list, contact the Editors-in-Chief at editor@ilareporter.org.au.

Jobs

Research Associate (Climate Change Law and Policy) at the National University of Singapore (NUS) Centre for International Law

The NUS Centre for International Law is accepting applications from candidates with both an advanced degree (LLB/JD or LLM) in public international law/environmental or climate law and prior work experience of between 1 to 3 years. Applications are assessed on a rolling basis. Full details of the position and application procedure are available here. For further information on the focus area including events, activities and publications see here.  Applications close 14 November 2021.

Senior Officer for International Criminal Law at the International Nuremberg Principles Academy

The International Nuremberg Principles Academy is looking to recruit a full-time Senior Officer for International Criminal Law starting on or after 1 January 2022. The successful candidate will have a strong track-record in the International Criminal Law (ICL) community – in an international court or tribunal, a governmental organization, a research institution, a public or private foundation, academia, an international organization or civil society. Applications close 15 November 2021. See here for more information: https://www.nurembergacademy.org/about-us/job-offers-and-calls-for-tenders/detail/f738b026c54e76c59a526f4c97ca43d4/senior-officer-for-international-criminal-law-94/

Legal Officer (P4) at the United Nations Conference on Trade and Development (Geneva)

Applications close 17 November 2021. See here: https://careers.un.org/lbw/jobdetail.aspx?id=166070&Lang=en-US

Legal Officer (P3) at the United Nations Environment Programme (Athens)

Applications close 21 November 2021. See here: https://careers.un.org/lbw/jobdetail.aspx?id=163375&Lang=en-US

Associate (Africa) at Human Rights Watch

The Africa Division of Human Rights Watch is seeking someone to provide administrative support to its Central Africa team. Fluency in English and French is required. Knowledge of one or more national language from Central Africa is an asset. Applications close 21 November 2021. For more information, see here: https://reliefweb.int/job/3786884/associate-africa?fbclid=IwAR31u3GEzhYWHSrJ4aZmK1y05YWFCppFeQCBsWDcgLrvhoAIamxWEnc8tjQ

Associate Legal Officer (P2) at the International Residual Mechanism for Criminal Tribunals (The Hague)

Applications close 24 November 2021. See here: https://careers.un.org/lbw/jobdetail.aspx?id=166450&Lang=en-US

Consultant at Humanity Research Consultancy

Humanity Research Consultancy (HRC) is looking for professionals to join its Pool of Consultants. HRC is particularly keen on hearing from professionals from (but not limited to) Afghanistan, Pakistan, Tajikistan, Uzbekistan, Turkmenistan, Kazakhstan, Kyrgyzstan, and Uyghuristan, who are familiar with extreme human rights violations in their home country’s supply chain. For more information, see here: https://humanity-consultancy.com/join-hrcs-pool-of-consultants/

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Renewable energy supply chains and the case for leverage over divestment

Andy Symington 

The importance of human rights due diligence as a means of detecting the risk of negative impacts on rights in corporate supply chains is increasingly being recognised by companies. This is particularly relevant to supply chains for renewable energy technology. However, the corporate instinct to divest from problematic suppliers does not serve to eliminate or mitigate the human rights impacts and may worsen them; using leverage, where possible, to improve the situation is a better strategy. 

In the ten years that have passed since the launch of the UN Guiding Principles on Business and Human Rights (UNGPs) in 2011, much of the global dialogue on the subject of companies and their impacts on rights has coalesced around them. One of their key components, human rights due diligence (HRDD), has gathered increasing momentum around the world as a consequence. 

Nature of human rights due diligence 

HRDD operationalises the UNGPs’ requirement for businesses to respect human rights by focusing on the risk of harm to people – rather than on the risk of harm to business that is the focus of normal due diligence – in companies’ operations and supply chains. This type of due diligence has, in recent years, been mandated by law in certain jurisdictions, and promoted by other pieces of legislation imposing reporting requirements – Australia’s Modern Slavery Act 2018 (Cth) is an example of the latter. It is also increasingly being employed by companies as they seek to gain understanding of actual and potential human rights impacts caused or contributed to by their activities or those of their suppliers. As well as for compliance with legislation, due diligence may be conducted in the context of public reporting on sustainability or environmental, social and corporate governance (ESG), for example, or to fulfil requirements imposed by customers, lenders, investors or stock markets. 

HRDD typically involves detailed mapping of company supply chains in order to better comprehend where risk to people might lie. So far, so good for the influence of the UNGPs. But what happens when a company detects human rights risk, or negative rights impacts that are already occurring, in its supply chain? 

The impacts of divestment following HRDD 

Many businesses now realise that negative human rights impacts in their supply chains can result in significant reputational damage for the company. Risk to people often thus directly translates to risk for business. While this is an important validation of the UNGPs’ position, it also means that the first instinct of many companies on detecting the risk of harm is to change supplier or divest from investments. 

This strategy may be effective in eliminating that risk to people from a company´s supply chain but it is unlikely that the victims of the rights impact will feel the benefit; it may, in fact, worsen the situation for rights-holders. This point was strongly made by representatives of Bangladeshi garment workers in the wake of the Rana Plaza disaster in 2013: for European and United States (US) companies to boycott Bangladeshi-made clothes in order to cleanse their supply chains of labour rights risks would leave workers without their livelihoods and at the mercy of less scrupulous companies. In general, the garment industry heeded the workers and, rather than disengaging, got involved in order to improve conditions on the ground. 

However, in the context of the sustainable energy transition, some of these lessons appear to have been forgotten. Recently, some electric vehicle companies have been working to remove Congolese cobalt from their lithium-ion battery supply chains and kickstarting ‘sustainable’ European lithium projects to guarantee supply free of the association with harmful environmental and Indigenous rights impacts associated with some North and South American producers. It is understandable that companies dealing in renewable technology have a need to be seen by the public as sustainable. However, affected rights-holders would be better served not by divestment but by vehicle and battery manufacturers engaging with mining companies and the communities themselves in order to find a common strategy to mitigate negative rights impacts and promote positive ones. 

Leverage and the requirements of the UNGPs 

The UNGPs are actually quite clear on the matter of divestment in Principle 19, only countenancing disengagement as something to consider when efforts to engage with the supplier have not changed the situation, or in situations where no leverage exists. Yet in the case of most minerals in renewable technology supply chains – such as the examples of lithium and cobalt given above – leverage most certainly exists. In fact, there are some existing multistakeholder projects underway involving mining companies, communities and customers downstream in the supply chain; these initiatives seek to guarantee a more sustainable supply without abandoning rights-holders by divesting. 

However, the requirement of the UNGPs that companies first attempt to use their leverage to improve rights outcomes in their supply chains is often ignored. This is not helped by the fact that reputational damage is rarely the result of a nuanced analysis by the public. As consumers we are easily persuaded by media coverage to believe that all Congolese cobalt is mined by children or that all South American lithium projects cause desertification. These are simplifications that derive in part from the difficulty of penetrating complex supply chains and in part from the desire to take a broad-brush approach to risk. However, they are simplifications that do not serve the rights-holders who are, after all, the reason for the whole HRDD enterprise. 

That the UNGPs have had notable success in disseminating an awareness for the need for HRDD to increase transparency of corporate supply chains is evident. Yet, if we are to achieve a ‘just transition’ to a sustainable energy future, it is important that companies whose technology is driving that transition acknowledge that the risk to rights-holders does not disappear when they are removed from a supply chain. Adhering to the UNGPs’ requirement for companies to engage with suppliers on these issues and use their leverage – along with genuine engagement and partnership with the rights-holders themselves – is the best way to guarantee those rights. A transition that delivers environmental benefits without realising social ones cannot be considered just.  

Andy Symington is a business and human rights consultant with KPMG Banarra and a PhD candidate at UNSW Law & Justice, investigating human rights dynamics in renewable energy extraction and supply chains. 

Enhancing Australia’s Illegal Logging Laws: an opportunity for Australia to lead global efforts to end harmful deforestation – Dr Hannah Harris

Australia is currently reviewing its illegal logging laws and seeking input on how best to ensure these laws are fair and effective. In a recent government submission, I make recommendations on how to enhance the existing legal framework, based on findings of my academic research. The submission window has now closed, and we can expect recommendations in the first quarter of 2022. 

Illegal logging is estimated to cost the global community up to AUD$206 billion each year. It contributes to global deforestation and biodiversity loss and compromises the planet’s resilience to global warming. It undermines legitimate timber industries and livelihoods, and has been linked to corruption, organised crime, human rights abuses, and armed conflict. Luckily, countries around the world have taken steps to eliminate illegal logging, developing laws that attempt to prevent and punish this harmful activity. 

In Australia, the laws that target illegal logging are the Illegal Logging Prohibition Act 2012 (Cth) (‘Illegal Logging Act’) and Illegal Logging Prohibition Regulation 2012 (Cth) (‘Illegal Logging Regulations’) (hereafter, ‘Illegal Logging Act and Regulations’). These laws prohibit the importation and domestic processing of illegally harvested timber. They require that timber importers conduct due diligence to ensure illegally harvested timber does not enter their supply chains and end up on the Australian market. There are also penalties for non-compliance, which are enforced by the Department of Agriculture, Water, and the Environment. 

My research demonstrates the importance of destination country laws such as Australia’s Illegal Logging Act and Regulations, which also exist in other destination countries and jurisdictions such as the United States, United Kingdom, and the European Union.  

Destination country laws interact with laws in source countries around the globe, as well as with certification schemes and the efforts of stakeholders at the local, national, regional, and international levels. Relevant stakeholders include corporations and industry associations, non-government organisations (NGOs) and civil society groups, banks and investment bodies, governments and regulators, consumers, and forest reliant communities. Collectively, interaction between these legal mechanisms and stakeholders impact the effectiveness of efforts to end illegal logging. 

By combining due diligence requirements for companies, prohibitions on importation of illegal timber, and penalties for non-compliance, destination country laws represent an essential component of the transnational regulatory framework. However, my research also shows a number of risks and limitations with these laws.  

Limitations include significant rates of non-compliance by corporate actors; enforcement challenges stemming from fraud and corruption in complex transnational supply chains; and, a need for greater interaction between destination country laws and laws in place in source countries. There is also a pressing need for greater collaboration between stakeholders to ensure that incentives for illegality are reduced, and opportunities for sustainable and ethical forest governance practices are enhanced. 

To overcome existing limitations and enhance the opportunities for stakeholder collaboration, I make the following recommendations for improving Australia’s Illegal Logging Act and Regulations: 

  1. The definition of the term “illegally logged” should be broadened and clarified to account for the interaction between harvest-specific laws and other relevant laws including anti-bribery laws, environmental laws, labour and human rights laws, constitutional protections, and customary land rights.  
  1. The due diligence process should mandate consideration of corruption and human rights abuses (including modern slavery) through inclusion of these risks under sections 10 and 13(3) of the Illegal Logging Regulations.  
  1. The Illegal Logging Regulations should mandate that the timber importers and processers who are subject to regulation make public non-sensitive elements of their due diligence system, to allow stakeholders (including consumers, investors and NGOs and civil society groups) to evaluate these systems and support the evolution of best practice. 
  1. Consideration should be given to expanding the scope of the Illegal Logging Act and Regulations to mandate due diligence by importers of ‘forest risk commodities’ and ‘financial institutions’, not just timber importers and processors. 

This final recommendation deserves further explanation. Currently, the Australian law only applies to importers and processors of ‘regulated timber products’ (section 9 of the Illegal Logging Act and section 5 and schedule 1 of the Regulations). However, illegal logging can result from practices unrelated to the forestry industry. Notable examples include land clearing for palm oil or other agricultural activities and the raising of livestock for international export.  

Expanding the scope and purpose of the law to address illegal logging that results from sourcing and trade of other commodities would be a valuable step towards an effective transnational framework to eliminate illegal logging. This step would align with developments in the United Kingdom, where the Environment Bill 2020 proposes due diligence requirements for all ‘forest risk commodities’.  

I also recommend expanding the scope of the law to mandate due diligence systems and reporting for financial institutions, as well as importers. This step would align with global trends towards recognising the role of responsible investment and lending practices in tackling transnational problems. Financial institutions and investors are key stakeholders in the effort to end illegal logging. Existing data shows that the big four Australian banks (Westpac, NAB, CommBank and ANZ) have collectively provided USD$2.21 billion of credit to forest risk projects since 2013. Globally, the numbers are much larger. Expanding the coverage of the law to include financial institutions would increase incentives for collaboration between stakeholders and support sustainable and ethical practices by Australian businesses. 

Countries, including Australia, must continue to support each other to eliminate illegal logging and develop a robust transnational legal framework to prevent harmful deforestation. By taking the above steps to improve its illegal logging laws, Australia has a unique opportunity to lead the world in this transnational effort. However, Australia cannot solve illegal logging alone. It must leverage the support of other powerful stakeholders and implement and enforce legal obligations to incentivise market transformation. 

If we cannot eliminate illegal logging, the consequences will be catastrophic. However, if we succeed in this effort, we have an opportunity to protect vital forest ecosystems and the communities that rely on them, while increasing our planet’s resilience to climate change and contributing to sustainable economic opportunities for all. 

The full submission, endorsed by Transparency International Australia, is available here.  

Dr Hannah Harris is a legal scholar and Senior Lecturer at Macquarie Law School. Her research area is transnational law and corporate regulation. Her current work includes analysis of legal responses to transnational challenges, including illegal logging, modern slavery, and foreign bribery. Her research also explores the potential for technology to support transnational regulatory efforts, including the use of Artificial Intelligence and Machine Learning for supply chain governance, law enforcement, and corporate governance. See details of her work here, and connect on Linkedin

The right development: brief reflections as the UN finally recognises the right to a healthy environment – Jared Wilk

The United Nations Human Rights Council recently recognised a human right to a safe, clean, healthy and sustainable environment, in a historic moment for human rights law and environmental activism. This post briefly explains the development and ventures some observations on its potential significance.

Reportedly, pollution was responsible for 9 million premature deaths in 2015 alone. When accounting for the increased disease and lower standards of living caused, the toll of pollution on human life is staggering. The climate crisis poses significant threats to life, health, food and water security, housing, political stability and a range of human rights, with its impacts to be felt disproportionately by vulnerable populations. The Holocene extinction event continues gathering pace. It is in this context, on 8 October 2021, that the UN Human Rights Council (HRC) momentously recognised the human right to a safe, clean, healthy and sustainable environment (RHE). The resolution (Res 48/13) was led by Costa Rica, Maldives, Morocco, Slovenia and Switzerland, inter alia. Russia, China, India and Japan abstained. 

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