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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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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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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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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Can international criminal law protect the environment? – Stephanie Erian

In June 2021, a panel of legal experts convened by the Stop Ecocide Foundation (called the Independent Expert Panel for the Legal Definition of Ecocide (Panel)) unveiled a proposal to make mass environmental destruction an international crime (Proposal). The Proposal involves adding new Article 8 ter to the Rome Statute of the International Criminal Court (ICC), which would place ecocide alongside existing international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Although encouraging to see environmental protection as the focus of international legal efforts, the Proposal raises serious questions for international criminal law practitioners. Some of these are considered below. 

So, what’s the proposed definition?

The Panel defines ecocide as ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’ (Proposal, p 5). 

A number of aspects of the draft definition are drawn from existing international law agreements, making its construction feel more familiar. For example, the Proposal reflects the structure of Article 7 of the Rome Statute relating to crimes against humanity: the first paragraph sets out the crime, and the second paragraph defines the crime’s core elements. In terms of language, the words ‘widespread’, ‘long-term’ and ‘severe’ replicate those in Article 8(2)(b)(iv) of the Rome Statute concerning damage to the environment during international armed conflict. This article prohibits intentionally conducting an attack in the knowledge that it will cause ‘widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’. New Article 8 ter would essentially extend this war crime to times of peace, and cover environmental damage that is both cumulative and alternative (‘severe and either widespread or long-term’).

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New technology, equity and the law of the sea — Aline Jaeckel and Harriet Harden-Davies

Advancements in new technologies open up new ocean industries and possibilities to explore the ocean. Some of these new technologies, such as swarms of underwater mini robots to map the seafloor or sensors on automated underwater vehicles, assist scientists in their work and produce growing quantities of ocean data. Other technologies enable us to extract evermore resources from the ocean, be it wave energy, fish, genetic materials or seafloor minerals. Still others provide new ways to conserve marine ecosystems, such as the use of satellite technologies to monitor human activity at sea and detect illegal fishing in marine protected areas. 

Given the many possibilities offered by ocean technologies, the UN Decade of Ocean Science for Sustainable Development starting this year aims to stimulate innovation and access to new technology to increase ocean exploration. Yet, whether new technology will help us achieve the UN Agenda 2030 sustainable development goal of ‘leaving no-one behind’ and contribute to positive social, environmental and economic benefits will depend on how, where, and by whom ocean science and technology is used in pursuit of ‘sustainable development’. 

This calls for research and action into how ocean science and technology can address, rather than perpetuate, inequities between states and communities. International law provides the legal framework, though it is far from perfect.  

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