Author: Editors

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.

Read More

A stitch in time: Examining the Ayyash et. al. verdict – Raghavi Viswanath

Editors Analysis, Articles 1 Comment

On 18 August 2020, the Special Tribunal for Lebanon (‘STL’) issued its long-anticipated judgment on the trial of the four accused of killing former Lebanese Prime Minister Rafik Hariri and 21 others in an explosive attack in February 2005. After a six-year long trial that brought 297 witnesses and 3135 exhibits to the stand, the Tribunal found one of the four accused, Salim Ayyash, guilty of being a co-perpetrator of a terrorist act, of intentional homicide, and of conspiracy to assassinate Hariri. The remaining accused were acquitted on all counts.

The judgment has drawn charged responses – from academics, civil society, and the victims. This does not come as a great surprise; after Hariri’s assassination, Lebanon plunged into a state of political anarchy, with its former Western and Gulf allies warring with terrorist outfits such as the Hezbollah. Lebanon has not recovered since, a prospect which has only become bleaker after the debilitating explosion in Beirut in August 2020.

For the people of Lebanon, a judgment by an internationalized tribunal on terrorism in Lebanon presented an opportunity to recognise and validate their plight, particularly that of the victims of the February 2005 blast. This explains why many victim groups were unhappy about the acquittals in Ayyash et. al. Compounded by the fact that the trial was removed from the seat of the political conflict and the Tribunal did not have the authority to award reparations, the Tribunal is regarded by some to have failed the victims. 

Read More

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. 

Read More

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. 

Read More

Climate Adaptation as an Opportunity for Coping, Transition, and Transformation – Hasanthi Tennakoon Kingsley

Editors Analysis, Articles

Introduction

The Intergovernmental Panel on Climate Change (IPCC) together with other experts agree that even small increases in warming yield significant repercussions in terms of climate impacts and the capacity of natural and human systems to adapt to that change. The findings of the IPCC’s Special Report on Global Warming of 1.5°C in 2018, present a stark reality, especially for those who are already vulnerable. As a result, there is now a greater urgency to pursue adaptation.  

Read More

Event: Australian Arbitration Week, 12-15 October 2020

Editors Events, ILA Updates

ACICA is pleased to present Australian Arbitration Week 2020 (AAW 2020) in the week of 12 October 2020. A full Calendar of Events is now available on the AAW website, which will be kept updated as event information is released.

ACICA, together with the Chartered Institute of Arbitrators Australia (CIArb Australia), will launch AAW2020 with Australia’s premier international arbitration event, the 2020 International Arbitration Conference featuring a line-up of speakers from across Australia and around the world. This year the conference will be offered virtually and is open to registrants around the globe. Program and speaker information is available to view on the website. 

The theme for this year’s International Arbitration Conference is Bridging the Distance: Arbitration in the New Normal. This one day program will offer virtual presentations on topics including: 

  • Advocacy in the Virtual Environment;
  • Technology as an Enabler in International Arbitration;
  • The Future of Investor-State Dispute Resolution;
  • Around the Globe in 60 Minutes;
  • Mega Projects in the New Normal;
  • Is Third Party Funding Changing International Arbitration?; and
  • Enhancing Efficiencies in the Arbitral Process.

Registration is now open! CPD points are available.

Read More

Re-Inventing Intervention: A Case for Implementing the Responsibility To Protect Doctrine in Yemen – Part 2: Challenges and Opportunities for R2P – Alana Bonenfant

Editors Analysis, Articles 1 Comment

This piece is part of a two-part series regarding the application of the R2P doctrine in Yemen. The first part explored the concept of R2P and this second part concerns the specific application of this doctrine to Yemen.

Challenges

A criticism of the R2P doctrine is that it is interventionism masked as humanitarian aid, which has, in the past, failed to achieve its objectives, particularly following the North Atlantic Treaty Organisation’s (‘NATO’) intervention in Kosovo, which proceeded without UN authorisation [at p.287]. The main critique of the intervention in Kosovo is founded primarily on the targeting of dual military – civilian use facilities, in direct contravention of customary international humanitarian law [at p.271]. Aside from the nature of the intervention and the means of force used in Kosovo, the international community recognised a need for an ‘exception to the rule’, that is, intervention in times of emergency, which would traditionally be considered a violation of State sovereignty.

The 2011 military intervention in Libya is considered a failure of the R2P doctrine in its current form; the failures of Rwanda, Bosnia and Kosovo predate the current framework. The intervention lead to further destabilisation and affected the intensity of the conflict long-term. The mandated intention of the allied intervention by NATO was to achieve ‘immediate ceasefire, including an end to all current attacks against civilians by the Gaddafi regime and its supporters’. Despite initial successes, the campaign ultimately failed when the allied nations involved disagreed on which nations would control certain aspects of the campaign, like the no-fly zone. Ultimately, conflict in Libya substantially ended following the death of Muammar Gaddafi n October 2011, and the UNSC subsequently withdrew operations.

A hurdle which inevitably sits in the way of the doctrine’s establishment as a pillar of international law, is its recognition as legitimate practice. Of the 831 UNSC resolutions which have passed since the doctrine was accepted at the World Summit in 2005, only 102 make mention of the doctrine as a whole. Further, despite the fact that Yemen has been in a non-international armed conflict (‘NIAC’) since 2011, only 33 of those resolutions mention the civil war,  and only 1 resolution passed by the UNSC explicitly mentions the R2P doctrine in the context of the Yemeni civil war. While the lack of cognisant recognition of the human rights abuses in Yemen by the UNSC is problematic, it is the lack of acknowledgement which give rise to the opportunity to implement the doctrine and change the narrative surrounding R2P in instances of long-term civil conflict.

Read More

Re-Inventing Intervention: A Case for Implementing the Responsibility To Protect Doctrine in Yemen – Part 1: Establishing R2P – Alana Bonenfant

Editors Analysis, Articles 1 Comment

This piece is part of a two-part series regarding the application of the R2P doctrine in Yemen. This first part explores the concept of R2P and the second part will concern the specific application of this doctrine to Yemen.

Introduction

Between April and July 1994, the world watched in shock horror while Tutsis were murdered in a campaign of mass ethnic cleansing, carried out by the Hutu militia in Rwanda. While there was no operative international program prepared to deal with a genocidal campaign of such proportions, the United Nations (‘UN’) scrambled to intervene without violating the basic principles of international law which form the basis of article 2 of its own Charter (‘UN Charter’). The United Nations Security Council (‘UNSC’) struggled to reach consensus regarding the most appropriate approach not only in Rwanda, but also in Bosnia, as members of the P-5 battled with their respective allegiances and geopolitical motivations. Inaction by the UNSC during the Bosnian Civil War is suggested by some to be one of the contributing factors behind the mass killings across the region, and most notably, the Srebrenica massacre. Following these atrocities, and born from inaction, the Responsibility to Protect (‘R2P’) doctrine was established. The doctrine been criticised since its creation and has failed, on occasion, to effectively manage the conflict it seeks to end or prevent. Despite these shortcomings, humanitarian intervention, specifically the R2P doctrine, remains a viable option to mitigate the effects of the humanitarian crisis in Yemen. 

Read More

The Intellectual Property Response to COVID-19: In Search of Common Good – Mohammad Ataul Karim

Editors Analysis, Articles

“Who owns the patent on this vaccine?’ ‘Well, the people, I would say. There is no patent. Could you patent the sun?”

Jonas Salk, the inventor of the polio vaccine

“Anything under the sun that is made by man is patentable.” 

Diamond vs Chakrabarty, 447 U.S. 303 1980

Introduction

The intellectual property (IP) response to COVID-19 has been one of the key issues in domestic and global legal forums. Most of the discussion has focused on patents for medical products, yet the pandemic has impacted on many sectors.  Parenthetically, it is relevant to note that fashion houses, many of whom own the most valuable trademarks, have been facing a critical question: can their cancellations of orders from the manufacturing factories, largely located in developing countries, be challenged based on the trademark licensing ground, amongst others? In this comment, however, I will briefly address two of the most pressing issues: first, the challenges and options which the IP regime in general, and pharmaceutical patents in particular, offer in combating COVID-19, and second, the policy models available to achieve the common good, i.e. making treatment for COVID-19 accessible and affordable for the highest number of people possible.  

Read More

Publication of Australian International Law Journal Vol. 25 (2018) – Part 2

Editors ILA Updates

The International Law Association (Australian Branch) is proud to announce the publication of Volume 25 of the Australian International Law Journal. This Special Volume compiles selected papers presented at the International Law Association’s 78th Biennial Conference held in Sydney, Australia from 19 to 24 August 2018. 

From its modest beginning in 1983 as Australian International Law News, the Australian International Law Journal has become a peer-reviewed law journal of international standing with contributions from prominent individuals in the field. Articles published in the Journal cover a wide range of topics of public and private international law. The Journal is currently edited by Professor Anthony E Cassimatis AM of the TC Beirne School of Law at The University of Queensland.

This post, the second of two, shares abstracts of the contributions available in the Special Volume. To read the contributions, visit the International Law Association (Australian Branch)’s website to become a member, or subscribe to the Journal.

Read More