Category: Analysis

Reviewing a Convention on Crimes Against Humanity – Ankit Malhotra

Editors Analysis, Articles

Introduction 

In 2014, the International Law Commission (ILC) began drafting articles for a Convention on the Prevention and Punishment of Crimes Against Humanity, alluding to “a global convention on crimes against humanity”. While the consideration for this is well-founded, one is compelled to consider the already existing international law on crimes against humanity as formulated under the Rome Statute (Article 7). One goal of the ILC in its crimes against humanity convention was to produce a balanced text that would inspire States to establish improved national laws and national jurisdiction regarding crimes against humanity (and develop inter-State collaboration on the subject), while respecting certain boundaries on what States would likely accept in a new convention. From one perspective, the ILC could have adopted a far-reaching treaty language crammed with “wish list” items to describe highly progressive legal policy, but States likely wouldn’t adopt such an instrument. 

It is general consensus that crimes against humanity have attracted sufficient adherence to by States (opinio juris and State Practice) such that they have crystalised as customary international law as well as being contained in the Rome Statute. However, Sean Murphy highlights many States that will not prosecute or extradite alleged perpetrators solely based on customary international law. Rather, they will insist upon having a national statute to prosecute. To bridge this lacuna of international and national law, a crimes against humanity convention will oblige States to codify the crime within their national law, thus enabling themselves to prosecute criminals. In creating its draft articles on the convention on crimes against humanity, the ILC may have merely adopted “guidelines,” “principles,” or “conclusions” that would not bind States to legal restrictions. Instead of a legally binding treaty, the ILC aimed for practical, achievable, and valuable suggested articles. 

According to Murphy, unless and until a convention on crimes against humanity is created, States will not take cognisance of their actions. Murphy argues that States must create a treaty and not just a “draft” like the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001. This would be more conducive for States to adopt domestic legislation based on an international convention on crimes against humanity. 

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Ukraine and Russia: A summary of international legal issues – Christopher Ward SC

Editors Analysis, Articles

This piece was originally published on Substack and is reproduced with the author’s permission.

As Russia continues to wage a war of aggression it is appropriate to deal with the international law applicable to the situation.

Russia has historically laid claims to, and at times controlled, the territory that encompasses modern Ukraine.  Those historical positions are irrelevant.  Ukraine is a fully recognized independent State with full membership of the United Nations, and full international recognition as a State, including recognition from Russia following the dissolution of the USSR.

It follows unambiguously that Russia is engaged in a naked war of aggression.  That war breaches Article 2(4) of the United Nations Charter:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Russian claims to be exercising a form of “protection” in the face of a Ukrainian “genocide” in breakaway provinces are factually ludicrous and are a pathetic, transparent, utterly craven misinformation device.  The international community has overwhelmingly and correctly rejected that pretext.

Ukraine is entitled to exercise a right of individual self defence.   That it is doing with grit and determination.

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The Glasgow Climate Change Conference: What Next for Climate Finance? – Ruth Adler

Editors Analysis, Articles

The Glasgow outcome on climate finance reaffirms parties’ commitments to their obligations under the UN Framework Convention on Climate Change and the Paris Agreement, but greater ambition is required in order to achieve the goal of limiting the increase in global average temperature to 1.5°C.

Climate finance was a key focus at the 26th meeting of the Conference of Parties (COP26) to the United Nations Framework Convention on Climate Change (UNFCCC or ‘the Convention’), held in Glasgow in November 2021.  The key outcomes with respect to climate finance are found in the Glasgow Climate Pactand the COP decision on long-term climate finance, and summarised below. The Glasgow outcome on climate finance reaffirmed parties’ commitments to their obligations under the convention and the Paris Agreement.

The Glasgow Climate Pact noted ‘with concern’ the increasing needs of developing countries due to the impacts of climate change and higher levels of indebtedness as a result of the COVID-19 pandemic (para 23).  The Pact emphasised the need to ‘mobilize climate finance from all sources’ in order to achieve the goals of the Paris Agreement, including increasing support for developing countries beyond USD 100 billion per year (para 25).  It noted with ‘deep regret’ that the goal of developed country parties to mobilise jointly USD 100 billion per year by 2020 — which was agreed at COP11 in 2010 as part of the Cancún Agreements — had not been achieved (para 26).  The Pact also called on developed country parties to ‘fully deliver on the USD 100 billion goal urgently and through to 2025’ (para 27) and for multilateral development banks and other financial institutions to increase investments in climate action (para 28).  

The COP decision on long-term climate finance also noted with ‘serious concern’ the shortfall with respect to the USD 100 billion per year goal (para 4) and urged developed countries to continue to ‘scale up’ climate finance to achieve the goal (para 5).  Noting that some developed country parties had doubled the provision of finance for adaptation, the decision requested that other developed countries significantly increase their efforts in that area with the aim of achieving a balance in finance for mitigation and adaptation (para 9).  Parties also agreed to convene high-level ministerial dialogues on climate finance in 2022, 2024 and 2026 (para 20), and that continued discussions on long-term climate finance would conclude in 2027 (para 18).  In addition, developed countries, led by Canada and Germany, adopted guiding principles and a Climate Finance Delivery Plan to achieve the goal of mobilising USD 100 billion by 2025.  

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Failed or rigged? The international patent system and access to COVID-19 vaccines in high- and low-income countries – Olugbenga Olatunji

Editors Analysis, Articles

Introduction

From late 2019, the media was awash with the news of a cluster of viral pneumonia cases found in Wuhan, China. The responsible virus was later identified as the SARS-CoV2 and this development was officially reported to the World Health Organisation (WHO) in December 2019. WHO later labelled the virus COVID-19. Since early 2020 when the virus was declared a global pandemic, Australia has recorded over 200,000 cases of infection and 2,000 deaths – the statistics are far more gruesome for most other countries.

By January 2020, a Chinese group of researchers led by Dr Yhong-Zhen Zhang, had successfully sequenced the genome of the virus, the result of which was made publicly available with the help of University of Sydney’s Dr Edward Holmes. This transparent and magnanimous gesture later proved instrumental to vaccine discovery, as it helped both academic and industry researchers to better understand the virus. Unprecedently, by December 2020, three COVID-19 vaccines had already received emergency use authorisation (EUA): two (Pfizer/BionNTech and Moderna) in the US, and one (AstraZeneca) in the UK. This success story is replicated in the current vaccine availability in Australia – these three vaccines are some of the vaccine manufacturers whose vaccines have received provisional approval in Australia.

Given the potentially fatal nature of COVID-19 and the global solidarity that resulted in quick discovery, approval and production of overwhelmingly effective vaccines, one would have expected the same solidarity to extend to the distribution of vaccines between high income countries (HICs) and low income countries (LICs). Disappointingly, however, this was never the case. Instead, vaccine availability has become linked to a country’s income status, with HICs being first-in-line, while LICs are down the priority table. To illustrate this sad reality, as of December 2021, the Global Dashboard for Vaccine Equity recorded that 65% of the population in HICs had received at least one dose of vaccine, compared to 8% of LICs’ populations. Given this stark access conundrum, it becomes pertinent to examine whether the current international patent system is to blame for this failure. 

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

Editors Analysis, Articles

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

Editors Analysis, Articles

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 2001, FISA 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

Editors Analysis, Articles

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

Editors Analysis, Articles

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

Editors Analysis, Articles

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

Editors Analysis, Articles

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 employment, travel 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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