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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The Proposed Reform of the Chinese Arbitration Law and its Impacts on Foreign Parties: Part I – Shu Zhang and Peng Guo

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 one of a two-part series.

The Chinese Arbitration Law (1994) (CAL) was drafted and enacted more than 20 years ago and has been criticised for its out-of-date regime governing the practice of arbitration in China. After years of debates and discussions, the amendment of the CAL was finally prioritised by the Standing Committee of the National People’s Congress and the State Council. On 30 July 2021, the Chinese Ministry of Justice circulated the draft of an Amended Chinese Arbitration Law for public consultation (‘the Draft’), which marks a significant step towards its formal amendment. On the one hand, a number of important features of contemporary international arbitration practice are now accepted by the Draft, demonstrating its aim to be in line with the international practice. On the other hand, some distinctive Chinese features in the Chinese arbitration system are maintained and developed, furthering its divergence from international expectations. Both of these aspects would have significant impacts on foreign parties who might consider, or who might be subject to, China-related arbitration. The authors will highlight some important features and briefly discuss their impacts on foreign parties conducting arbitration in China in this two-part series.

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Event: Australian Arbitration Week, 18-22 October 2021

Australian Arbitration Week 2021 is being held virtually this year and will be running a variety of events related to arbitration throughout the week of 18 to 22 October 2021! The following events are being run by ACICA, but a full calendar of events is available on the ACICA website.

ACICA/CIArb Australia International Arbitration Conference 2021

New and Emerging Norms in International Commercial Arbitration

Date: 18 October 2021

Website: https://ciarb.net.au/ciarbevents/2021-conference/

AMTAC Webinar 

Avoiding Obstacles along the pathway to enforcement

Date: 19 October 2021, 1pm to 2pm (AEDT)

Registration: https://acica.org.au/events-list/#!event/2021/10/19/amtac-seminar-aaw

ACICA Webinar

Insolvency & Arbitration

Date: 19 October 2021, 3:30pm to 5pm

Registration: https://acica.org.au/events-list/#!event/2021/10/19/acica-vic-state-committee-seminar-insolvency-arbitration

ACICA45 workshop (virtual)

Practicalities of Procedure

Date: 20 October 2021, 10am to 12pm

Registration: https://acica.org.au/events-list/#!event/2021/10/20/acica45-workshop-aaw

ACICA Rules Roadshow (virtual)

Date: 21 October 2021, 12:30pm to 1:30pm

Registration: https://acica.org.au/events-list/#!event/2021/10/21/sydney-acica-rules-2021-roadshow-event

ACICA Webinar

What’s the bottom line? Management of Costs in International Arbitration

Date: 22 October 2021, 12:30pm to 1:30pm

Registration: https://acica.org.au/events-list/#!event/2021/10/22/what-8217-s-the-bottom-line-management-of-costs-in-international-arbitration

Lymph or liberty: ethics and human rights in mandatory Covid-19 vaccination – Rebekah McWhirter

The strength of vaccination as a public health tool is that it both protects the individual and contributes to protection of the community by reducing the spread of disease. This is also its weakness: when individuals do not vaccinate, either because they cannot or choose not to, herd immunity – the state where enough individuals are immune to a disease to provide indirect protection by inhibiting community transmission – is weakened. Achieving very high rates of vaccination is therefore important to its success as a public health intervention. This blog post surveys the ethical and human rights considerations relevant in implementing vaccine mandates.

The Covid-19 pandemic has caused significant loss of life globally, in addition to ongoing pressures on health systems and the emerging evidence of longer-term effects of the disease. The near-miraculous development of multiple effective vaccines against Covid-19 within a year demonstrated the power of well-funded research and responsive regulatory action, building on decades of work in vaccine research. In combination with other public health measures, achieving high vaccination rates is a key part of the path out of the pandemic. As voluntary rates slow, and herd immunity remains elusive, it is tempting to look to vaccine mandates to get rates up and over the line.

What are vaccine mandates?

Vaccine mandates can encompass a range of sanction designs. Criminal penalties, such as fines and imprisonment, were a feature of nineteenth-century compulsory vaccination statutes requiring parents to have their children vaccinated against smallpox. Such laws were of variable efficacy, and fell into abeyance following the introduction of conscientious objection clauses in the late-nineteenth and early-twentieth centuries. 

Modern mandates more commonly focus on specific groups through targeted incentives or penalties. Incentives, such as the now-repealed Maternity Immunisation Allowance, may not technically constitute a mandate, but can be significant enough, especially to those on lower incomes, that they operate in much the same way as a mandate. In recent years, incentive-based approaches have gradually been replaced by penalty-based approaches, such as the No Jab, No Pay and No Jab, No Play policies which restrict access to childcare and family assistance payments if children have not received the vaccinations required by the National Immunisation Program Schedule. While medical exemptions are available, these policies removed conscientious objection exemptions.

While the Australian government is always very careful to emphasise that vaccination in Australia is voluntary, the practical implications of these measures are such that childhood vaccinations are, except for the wealthy, essentially mandatory. Similarly, occupational vaccine mandates, such as certain childcare and aged care employers that require employees to be receive annual flu vaccines, are voluntary only in the sense that the choice is between vaccination and unemployment. 

A return to population-wide vaccine mandates is extremely unlikely, but targeted Covid-19 mandates requiring evidence of vaccination for specific purposes, such as employmenttravel or health insurance, are being seriously considered, if not already being implemented. Significantly, such mandates are going beyond previously accepted high-risk contexts, such as healthcare and aged care, and are being implemented in contexts such as a museum and a fruit processing plant on the basis of workplace health and safety considerations rather than under public health orders. This raises questions about the extent to which such mandates are ethical and lawful.

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ILA Reporter Events and Opportunities Update – October 2021

This is our first, in what will become a monthly fixture on the blog, 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

Legal Consultant at the Extraordinary Chambers in the Courts of Cambodia (United Nations Assistance to the Khmer Rouge Trials) 

General call for legal consultants (at all levels, including experts) to assist the Chamber’s judges prepare and finalize the appeal judgment Case 002/02. Applications accepted on an ongoing basis. For further details, see: http://www.unakrt-online.org/vacancies/legal-consultants-all-levels-including-experts   

International Arbitration Associate (2+ years post admission experience) 

Associate position available at a global law firm based in Melbourne. Applications can be made through Montgomery Advisory. For further details, see: https://www.montgomeryadvisory.com.au/full-listing/?ads=3784845  

Solicitor/Caseworker – Refugee Advice and Casework Service 

Position available for a solicitor to provide legal assistance to people seeking asylum and refugees in an immigration setting. Applications close 10 October 2021. For further details, see: https://www.ethicaljobs.com.au/members/racs/solicitor-caseworker-3?categories=35&page=2  

Research Fellow in Law: Human Rights – UNSW 

UNSW is seeking to appoint a postdoctoral fellow to assist on the implementation of the ‘Improving the Regulation of Modern Slavery and Access to Remedy: Learning from Experience’ project within the Australian Human Rights Institute. Applications close 11 October 2021. For further details, see: https://www.linkedin.com/jobs/view/2716589246/?referenceId=ByteString%28length%3D16%2Cbytes%3D450d72d1…b6f5b7b7%29.  

Assistant Protection Officer – UNHCR  

Position available to assist the UNHCR’s multi-country representation team in Canberra on a full-time basis. Applications close 14 October 2021. For further details, see: https://www.ethicaljobs.com.au/members/aulca/assistant-protection-officer?categories=35&page=2  

Postdoctoral Research Fellow – Gender, Peace, Security – Monash University 

Monash University is seeking to appoint a postdoctoral research fellow to assist on a research project associated with the UN Women, Peace and Security Agenda. Applications close 14 October 2021. For further details, see: http://careers.pageuppeople.com/513/cw/en/job/618285/post-doctoral-research-fellow-gender-peace-security  

Internships

Remote Internship with the Coalition for the International Criminal Court 

Assist the CICC International Secretariat on a range of tasks relating to the International Criminal Court, the general work of the coalition and the Assembly of States Parties. Deadline to apply is 15 October 2021. For further details, see: https://www.coalitionfortheicc.org/sites/default/files/cicc_documents/CICC_Volunteer_2021_final.pdf  

Internship at Extraordinary Chambers in the Courts of Cambodia (United Nations Assistance to the Khmer Rouge Trials) 

Internships between April 2022 – June 2022 are now accepting applications. Deadline for applying is 30 November 2021. For further details, see here: http://www.unakrt-online.org/recruitment  

International Justice Program Intern at Human Rights Watch 

HRW is calling for applications for its January-May 2022 internship in its International Justice Program. The internship is based in New York, however, remote arrangements may be possible. Applications due 19 October 2021. For further details, see: https://boards.greenhouse.io/humanrightswatch/jobs/5576004002  

Opportunities

Law Council of Australia International Law Essay Competition 

The International Law Section of the Law Council of Australia is running an essay competition for studies in the law of the South Pacific. Entries are required to explore an international law issue relevant to the South Pacific. Entries close on 29 October 2021. For further details, see: https://www.lawcouncil.asn.au/international-law/international-law-section-essay-competition-for-studies-in-the-law-of-the-south-pacific  

Melbourne Journal of International Law Call for Submissions 

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 due 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.   

Westpac Asian Exchange Scholarships 

University students looking to complete up to two semesters abroad in Asia to forge new links between Asia and Australia can apply for the scholarship, valued up to $12,250. Applications close 29 November 2021. For further details, see here: https://scholars.westpacgroup.com.au/scholarships/asian-exchange/#section2  

Cambridge International Law Journal: A Tribute to Judge James Crawford Call for Papers 

The Cambridge International Law Journal welcomes contributions on the responsibility of states and other subjects of international law. Submissions due by 24 October 2021. For further details, see: https://opiniojuris.org/2021/09/14/events-and-announcements-13-september-2021/  

Events

Early Career Panel on International Investment Agreements and National Impacts 

The International Law Association (Australian Branch) will be hosting its final early career international lawyer virtual panel on international investment law, featuring speakers  Caitlyn McKenzie, Zhenyu (Zoe) Xiao, chair Associate Professor Jeanne Huang (University of Sydney Law School) and commentator Dr Jonathan Bonnitcha on 7 October 2021. To register, see: https://www.eventbrite.com.au/e/international-investment-agreements-and-national-impacts-tickets-170399557664.  

Silvia Fernandez de Gurmendi on Gender, Women and Leadership at the International Criminal Court 

This event is organised by the Minerva LAW Network. Dr. Silvia Fernández de Gurmendi is a former International Criminal Court judge and president and will be leading a talk on gender, women and leadership at the International Criminal Court. Event is online on 8 October 2021 at 11:00 British Standard time. Register here: https://www.eventbrite.com/e/silvia-fernandez-de-gurmendi-on-gender-women-and-leadership-at-the-icc-tickets-174450685697  

Conference on ‘International Criminal Law before Domestic Courts’  

The University of Vienna and the Ludwig Boltzmann Institute of Fundamental and Human Rights is hosting this conference in Vienna from 14 to 16 October 2021. The event will be livestreamed and registration is free. To register, go to: https://www.iclconference21.com/registration  

Private International Law and Intellectual Property: The ILA Kyoto Guidelines 

The Centre for Asian and Pacific Law at the Sydney Law School and the International Law Association (Australian Branch) are hosting a virtual panel on the Kyoto Guidelines adopted at the 79th Conference of the International Law Association featuring Professor Toshiyuki Kono, Professor Gyooho Lee, Professor Vivienne Bath and Associate Professor Jie (Jeanne) Huang. To register, see: https://www.eventbrite.com.au/e/private-international-law-and-intellectual-property-tickets-171695484817.  

Kaldor Centre Virtual Conference 2021: Whose move? Addressing migration and displacement in the face of climate change 

The Kaldor Centre for International Refugee Law is hosting a virtual conference from 19-21 October 2021 addressing issues in migration and displacement in the face of climate change. To register, see: https://www.kaldorcentre.unsw.edu.au/event/kaldor-centre-virtual-conference-2021-whose-move-addressing-migration-and-displacement-face  

The profound challenges facing COP 26 and the UNFCCC 

The International Law Association (Australian Branch) and Melbourne Climate Futures based at the University of Melbourne will be holding a virtual expert panel featuring Professor Jacqueline Peel, Professor Robyn Eckersley, Associate Professor Malte Meinshausen and chair the Honourable Justice Nicola Pain on 26 October 2021. To register, see: https://www.eventbrite.com.au/e/international-law-of-climate-change-profound-challenges-facing-cop26-tickets-177620647137.  

Corruption and Human Rights Sanctions in Australia: What to Expect?  

The Australian National University Transnational Research Institute on Corruption is hosting an event on corruption and human rights sanctions in Australia. Speakers include Geoffrey Robertson QC (Doughty Street Chambers), Anna Bradshaw (Peters & Peters) and Adam Masters (Transnational Research Institution on Corruption). Event will be conducted via webinar 1t 7pm AEST on 27 October 2021. Register here: https://lawschool.anu.edu.au/event/webinar/corruption-and-human-rights-sanctions-australia-what-expect  

Assessments of Liability for Violations of International Law involving Lethal Autonomous Weapons Systems: Abstract Entities and Algorithmic Accountability – Helen Stamp

In 1950, the International Military Tribunal sitting at Nuremburg, put forward the following, fundamental proposition, reported in the official proceedings of the Tribunal [466], regarding criminal responsibility for crimes of international concern:

“[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”  

This statement was in response to arguments submitted to the Tribunal that it is sovereign states which are governed by international law, rather than individuals, and that individuals are therefore protected from personal responsibility when the act in question is an ‘act of state.’ This submission was strongly rejected by the Tribunal who confirmed that individuals can be held responsible under international law, and specifically the laws of war; a position which has been maintained and has informed the development of international criminal law since that time.

Seventy-one years on, the notion of individual criminal responsibility is again being challenged; not through arguments of state sovereignty but by the very technology incorporated into weaponry which is now being developed and used in modern armed conflicts

In particular, Lethal Autonomous Weapons Systems (LAWS) – where responsibility for decisions is shared between a human operator and to varying degrees an autonomous digital system – have created a challenge to established legal frameworks and accountability mechanisms which would have been unimaginable to those sitting at Nuremburg many years ago. 

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Beyond the International Health Regulations: The Role of International Disaster Response Law in the Global Pandemic Response – Thomas Mulder

The global pandemic response has legally largely relied on the International Health Regulations of 2005, but this instrument does not offer a clear framework for the provision of international assistance in pandemics. The regime of international disaster response law offers a solution and should fill this gap. The concurrent application of both regimes contributes to a comprehensive global approach to the complex challenges of pandemics.

Since the beginning of the pandemic, dramatic surges in COVID-19 cases have caused crises around the world. Rising pressure on health care systems and shortages of medical supplies have put several states in urgent need of assistance at various stages during the pandemic. A striking example is India, where an exponential rise of cases led to heartbreaking scenes in April and May 2021. States have responded to these needs with offers of international assistance, including assistance to India. However, it has been unclear which legal framework applies to international assistance in a pandemic. 

The International Health Regulations of 2005 (IHR 2005) have been the main framework for the global response to the COVID-19 pandemic. Earlier this year, two independent panels that reviewed the global pandemic response have highlighted the lack of attention drawn to international cooperation and mutual assistance in the IHR 2005. The panels have recommended revision of the IHR 2005 and even a new ‘pandemic treaty’, but did not come up with detailed proposals that address international assistance in pandemics. However, rather than reinventing the wheel, we should look beyond the IHR 2005 and rely on the rules and principles of international law that already address international assistance in crises, namely international disaster response law. This regime should be integrated into the legal framework on the global pandemic response.

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Event: ‘Private International Law and Intellectual Property: The ILA Kyoto Guidelines’, 15 October 2021

In 2020, the 79th Conference of the International Law Association passed the Resolution 6/2020 and adopted the Guidelines on Intellectual Property and Private International Law (‘Kyoto Guidelines’).

The Guidelines are part of international efforts to establish a cooperative global system for jurisdiction, choice of law, and judgment recognition and enforcement in transnational IP disputes. They apply to civil and commercial matters involving IP rights that are connected to more than one State.

This webinar, jointly sponsored by the Centre for Asian and Pacific Law at the Sydney Law School and International Law Association (Australian Branch), invites distinguished professors from Japan, Republic of Korea and Australia to discuss the contents, implications, and challenges of the Guidelines in regulating complicated IP disputes.

At the webinar, Professor Toshiyuki Kono (Kyushu University, Japan) will be speaking about the background and significance of the Kyoto Guidelines; Professor Gyooho Lee (Chung-Ang University, Republic of Korea) will be speaking about the laws applicable to transferability of an intellectual property right and employment contracts under the Kyoto Guidelines; and Professor Vivienne Bath (Sydney Law School, Australia) will be speaking about the Kyoto Guidelines and injunction in transnational standard essential patents and parallel patent infringement disputes. The panel will be moderated by Associate Professor Jie (Jeanne) Huang (Sydney Law School, Australia).

The event will be held on Friday 15 October 2021 from 3:00 pm to 4:00 pm AEDT on Zoom. Registration is essential and through Eventbrite.

International Human Rights Law ‘In Here’: Bail Reform in Victoria – Jennifer Keene-McCann

Jennifer Keene-McCann brings international human rights law home to Victoria’s Bail Act 1977.  

When I teach international law, I often wave my hands in the air separating the ‘domestic sphere’ and the ‘international sphere’. This separation, I explain, is how something could be lawful in the domestic sphere but unlawful in the international. Australia is a dualist system; we can commit to particular principles on the international stage and choose not to implement them domestically.  

This separation is partly why I imagine many domestic practitioners do not see international law as a part of their ‘toolbox’ – it exists ‘out there’ somewhere. But international legal principles provide excellent support for strategic litigation.  

A perfect example of this is bail.  

Victoria further tightened its laws in 2017 and 2018 by increasing the number of offences subject to what is referred to as a ‘reverse onus’ test for granting bail (outlined further below). Now, there is growing concern that not only are provisions in Victoria’s Bail Act 1977  (Bail Act or the Act) too harsh, they are also disproportionately effecting Victoria’s most vulnerable.  

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Event: International Investment Agreements and National Impacts, 7 October 2021

The International Law Association (Australian Branch) is pleased to announce its fourth in a series of online lunch-time panels showcasing the work of early career international lawyers.

This event follows the first panel on “Intersections of International Environmental Law with National Jurisdictions” on 22 July 2021, the second panel on “Armed Conflict, Technology and Human Rights” on 26 August 2021 and the third panel on “International Criminal Law: Practitioner Perspectives” on 16 September 2021. Recordings are made of these panels and will be made available in the members’ section of the ILA (AB)’s website in due course.

This fourth panel is focused on “International Investment Agreements and National Impacts” and features speakers Caitlyn McKenzie (ANU College of Law) presenting on ‘Improving access to Foreign Direct Investment for Pacific Island Countries: Pursuit of International Investment Agreements from a development perspective’ and Zhenyu (Zoe) Xiao (UNSW Law and Justice) speaking on ‘International law and domestic institutions: rethinking the evolution of China’s investor-state dispute settlement policymaking’. The event will be chaired by Associate Professor Jeanne Huang (University of Sydney Law School) and feature commentator Dr Jonathan Bonnitcha (UNSW Law and Justice).

The panel will be held online on Thursday 7 October 2021 from 1:00 pm to 2:00 pm AEST. Registration is free and through Eventbrite.

A flyer for this fourth panel is included below.

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