Author: Editors

Event: COVID-19 and Human Rights, 25 June 2020

Editors Events

On 25 June 2020, the International Law Association (Australian Branch) will be hosting the fourth of its series of Zoom seminars on COVID-19, following the first seminar in April on COVID-19 and public international law, the second seminar in May on COVID-19 and private international law and the third seminar earlier this month on COVID-19 and refugee law. Previous seminars have recordings posted on the ILA (Australian Branch)’s Facebook and Twitter pages.

The seminar will be cohosted by the Australian Human Rights Institute at UNSW Sydney.

This seminar will feature presentations by Louise Chappell, Director of the Australian Human Rights Institute and Elaine Pearson, Australian Director at Human Rights Watch and Advisory Committee Member at the Australian Human Rights Institute. Louise Chappell will address the human rights implications of Australia’s response to COVID-19 and consider how our international obligations are being upheld or undermined during the pandemic. Elaine Pearson will be speaking on the human rights impacts of the COVID-19 response, especially in Asia, and how some authoritarian-leaning governments are exploiting the pandemic to tighten their grip on power.

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Human rights and climate change in the courts: An Australian first – Tess Van Geelen

Editors Analysis, Articles 3 Comments

For the very first time in Australia, a coal mine is being challenged in court on human rights grounds. The action is part of a growing global trend that we’ll look at in this two-part series. This first part will give an overview of the legal action, and the developments in domestic law that opened the door for this milestone case. The second part will look at the international context, providing an overview of key foreign cases, and recent developments in linking human rights and climate change at the international level.

Last month the Environmental Defenders Office (EDO) launched a legal challenge against the Galilee Coal Project proposed by Waratah Coal, which is owned by Clive Palmer. According to Waratah Coal, the project is expected to produce 40 million tons of thermal coal per annum — fully four times the production of the nearby Adani Carmichael Mine, which has attracted considerable opposition in Australia. The Galilee Coal Project would be one of Australia’s largest coal mines.

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Fair Trials at the International Criminal Court in the Age of COVID-19 – Adaena Sinclair-Blakemore

Editors Analysis, Articles

The COVID-19 pandemic has affected every corner of the world and the International Criminal Court (‘ICC’ or ‘the Court’) is no exception. Since March 2020, the Court’s premises in The Hague have been closed, staff have been working from home and visitors, including defence counsel, are not permitted into the UN Detention Facility to visit the accused. Nevertheless, trials remain ongoing and, like countless other courts around the world, the ICC has shifted to operating virtually for the foreseeable future. The ICC has so far postponed hearings in Prosecutor v Al Hassan, Prosecutor v Ntaganda and Prosecutor v Gbagbo and Blé Goudé in response to the pandemic. However, it is possible that the Court may hold virtual hearings if the pandemic prevents in-person court sittings in the long-term. This post considers the impacts of both holding virtual hearings and postponing hearings on an accused’s fair trial rights under the Rome Statute of the International Criminal Court (‘Rome Statute’).

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“Incomprehensible and arbitrary”: Germany’s constitutional court strikes back against the ECB and CJEU – Edward Watson and Jessica Downing-Ide

Editors Analysis, Articles

The Judgment of the Second Senate of Germany’s Federal Constitutional Court (BVerfG), delivered on 5 May 2020, criticises and ignores a decision of the Court of Justice of the European Union (CJEU). More significantly, it questions the European Central Bank (ECB)’s competence to engage in large-scale purchases of government bonds. 

The decision heightens the tension between national law and EU law which has continued to plague European integration. While it carries a different flavour, it can be compared to increasing concerns about fiscal independence and sovereignty within the EU that have triggered other movements such as Brexit. 

This note explains how the BVerfG’s decision will potentially contribute to fragmentation within EU law by inviting courts of other Member States to dispute the legitimacy of the CJEU’s judgments. This note argues however that the BVerfG’s concerns, that the ECB’s competence is expanding beyond those conferred on it by treaty, are valid.

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Event: COVID-19 and International Refugee Law, 4 June 2020

Editors Events 1 Comment

On 4 June 2020, the International Law Association (Australian Branch) will be hosting the third of its series of Zoom seminars on COVID-19, following the first seminar in April on COVID-19 and public international law and the second seminar in May on COVID-19 and private international law. Previous seminars have recordings posted on the ILA (Australian Branch)’s Facebook and Twitter pages. Details on future events will follow.

The seminar will be cohosted by the Andrew and Renata Kaldor Centre for International Refugee Law, UNSW Sydney.

This seminar will feature presentations by Scientia Professor Jane McAdam, Kaldor Centre for International Refugee Law at UNSW Sydney and Assistant Secretary-General Gillian Triggs UNHCR’s Assistant High Commissioner for Protection. Professor McAdam will address the differential impact of the pandemic on displaced people, showcasing the Kaldor Centre’s blog, COVID-19 Watch, and will also consider the twin ‘crises’ of COVID-19 and climate change on mobility in our region. Assistant Secretary-General Triggs will reflect on the following: as we look forward to celebrating the 70th anniversary of the Refugee Convention, COVID-19 has undermined the fundamental norms of human rights and refugee law as almost no other crisis has done. Over 160 states have closed their borders and suspended or restricted access to asylum and many have pushed back those seeking protection, risking refoulement. Once the virus subsides, the longer-term challenges are to ensure that regressive laws are not ‘baked in’ and that the social and economic impacts of the pandemic on the most vulnerable people are addressed.

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Who can withdraw from the WHO? – Keilin Anderson

Editors Analysis, Articles

In the latest instalment of President Trump’s escalating attacks on the World Health Organisation (WHO), Trump has now declared that the US will be ‘terminating’ its relationship with the organisation on account of China’s ‘total control’. The move is unsurprising given Trump has already frozen WHO funding and that withdrawal (or threatening withdrawal) is becoming one of his signature diplomatic moves. Since 2017, Trump has announced, hinted at, or commenced withdrawal from a growing list of bilateral and multilateral arrangements, including (but not limited to) the Paris Climate Agreement, UNESCO, the TPP, the Optional Protocol to the Vienna Convention for Diplomatic Relations on Dispute Settlement, the Universal Postal Union Treaty (which, so far, has been reversed), NAFTA, the WTO and NATO.  

However, whether Trump can actually withdraw from the WHO is far more complicated than issuing a declaration in the Rose Garden or drafting a tweet. In reality, it is a matter which remains highly contested and complicated both in international law and under domestic law, particularly US law. This post briefly outlines some of the key issues arising from Trump’s attempt to withdraw from the WHO and proposes the need for greater clarity on both domestic withdrawal processes and the implied right in international law to withdraw from a treaty.

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Event: COVID-19 and Private International Law, 14 May 2020

Editors Events

On 14 May 2020, the International Law Association (Australian Branch) will be hosting the second of its series of Zoom seminars on COVID-19, following the first seminar in April on COVID-19 and public international law.

This seminar will feature Associate Professor Jeanne Huang, University of Sydney Law School and Member of the International Law Association (Australian Branch), who will be speaking on collecting evidence abroad by video link under the Hague Evidence Convention and/or domestic laws, and Professor Vivienne Bath, University of Sydney Law School, who will be speaking on private international law, mandatory rules and frustration of contract/force majeure (with particular application to China and Chinese contracts).

Each presentation will be approximately 10 mins, allowing 15-20 mins for responses to questions via the Zoom chat function.

The seminar will be held on Thursday 14 May 2020 from 5:00 pm to 5:45 pm Sydney time (GMT+10). The seminar will be open to members and non-members. To attend, you must RSVP here by Wednesday 13 May 2020 at 5:00 pm Sydney time (GMT+10). The meeting link will be sent through on Thursday morning prior to the seminar.

Subsequent seminars being planned for this series include COVID-19 and international commercial arbitration, human rights, and refugees. Details will follow!

International human rights law and Australia’s COVIDSafe app – Anthony Hallal

Editors Analysis, Articles

COVID-19 has brought the importance of public health into sharp focus.  The need to protect Australia’s health system by slowing the spread of the virus has been emphasised as the key to surviving the pandemic.  To that end, governments in every Australian jurisdiction have implemented a suite of directions, orders and determinations that restrict the activity of individuals and businesses in various ways.  

These restrictions have generally succeeded in reducing the prevalence of COVID-19 in Australia to date.  Consideration is now being given to lifting the restrictions.  However, doing so comes with a substantial risk that COVID-19 transmissions will spike.  To address that risk, the Australian Government has introduced the COVIDSafe app – a tool to identify and contain COVID-19 outbreaks by making contact tracing faster and more effective.

This article considers Australia’s obligations under international human rights law in the context of the COVIDSafe app.  

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The Right to Health and Immigration Detention: What are Australia’s International Obligations? – Alana Bonenfant

Editors Analysis, Articles

In an increasingly connected world, COVID-19 has people around the world isolating and staying home. But what if that home is an immigration detention centre? In March 2020, a guard at an Australian immigration detention facility tested positive for COVID-19. A group of detainees from across immigration detention centres have written to the Prime Minister, Scott Morrison, pleading to be released into the community on health grounds and a case has been brought in the High Court requesting compassionate release for immigration detainees under the circumstances. Reportedly, more than 300 detainees have been released in the UK for reasons relating to the pandemic. So, what are Australia’s obligations? 

The World Health Organisation (WHO) has listed steps which individuals can undertake to help slow the spread of COVID-19, including physical distancing measures such as only leaving the house for essential errands and maintaining 1.5 metres of space between all persons. Are these measures possible in immigration detention? If not, does this constitute a breach of the right to health?

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