Category: Analysis

An inevitable reform, a long awaited solution: The establishment of the Australian Foreign Investment Regulatory Authority (AFIRA) – Bovas Johannan

Editors Analysis, Articles

The compliance framework under the Australian foreign investment regime undertaken by both the Foreign Investment Review Board (FIRB) and the Australian Taxation Office (ATO) are currently under the microscope for their lackadaisical approach in achieving the outcomes expected of a compliance framework. 

In 2014, the report on foreign investment in residential real estate by the House of Representatives Standing Committee on Economics provided a rather scathing assessment of the FIRB in the following words: 

“In practice the framework has been undermined due to poor data collection, along with a lack of audit, compliance and enforcement action by FIRB. Australians are entitled to expect that the rules are properly enforced and our committee recommendations strengthen the ability to do this.”

In 2020, not much has changed. The Productivity Commission shares a similar view while considering the spillover impacts of foreign investment:

On the negative side, competition from efficient foreign businesses can result in some Australian firms going out of business, and there are ongoing worries about whether investors generate negative social and environmental spillovers by not adhering to domestic regulations.

Having a robust compliance and enforcement mechanism in the post-COVID-19 era is important not only for delivering a system that arrests the flow of Australian fiscal resources—say in the form of tax evasion by deliberately restructuring companies to avoid Australian taxation liability— and intellectual property rights into foreign hands, but also for sending a message out to the investors that the investments will have solid legal endorsement in Australia and that predatory moves will not be tolerated.

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Nuclear weapons have always been inhumane and unacceptable, soon they will be illegal – Tilman Ruff

Editors Analysis, Articles

On Saturday 24 October 2020, Honduras brought the number of nations ratifying the United Nations Treaty on the Prohibition of Nuclear Weapons (‘TPNW’) to 50. This milestone means that after 90 days have elapsed, on 22 January 2021, the treaty will enter into legal force, becoming international law and binding on the states that have ratified it, and all those which ratify in future. The treaty will, however, stigmatise nuclear weapons for all states, whether or not they join the treaty.

It is fitting that 24 October also marked the 75th anniversary of the founding of the UN, ‘determined to save succeeding generations from the scourge of war’. The very first resolution of the UN General Assembly, on 24 January 1946, established a commission to develop a plan for the elimination of atomic weapons.

This is a historic achievement and an enormous win for humanity and planetary health. Outlawing nuclear weapons is an essential step towards eliminating them, which is the only reliable way to prevent their use. 

Australians can take particular pride and encouragement from this achievement. The International Campaign to Abolish Nuclear Weapons (‘ICAN’) was founded in Melbourne by the Medical Association for Prevention of War in close collaboration with International Physicians for the Prevention of Nuclear War (‘IPPNW’). ICAN became the leading civil society coalition working with the majority of the world’s governments to conclude the TPNW. For this work, in 2017 ICAN became the first Australian-born entity to be awarded the Nobel Peace Prize. 

This effort involved many partners. Crucial among them was the world’s largest humanitarian organisation, the Red Cross/Red Crescent Movement, and particularly the International Committee of the Red Cross, which provided substantive input to many aspects of the treaty. 

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Could the Rome Statute apply to those responsible for the Israeli settlements in the West Bank? – Simon McKenzie

Editors Analysis, Articles

It has been over 50 years since the beginning of the Israeli occupation of the Palestinian territories. It is estimated that there are approximately 750,000 Israeli settlers living in the West Bank and East Jerusalem, and they are supported, protected, and maintained by the Israeli state. Simon McKenzie’s new book discusses whether international criminal law could apply to those responsible for allowing and promoting the growth of these settlements, and examines what this application would reveal about the operation of international criminal law. 

In December 2019, Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), announced that there was enough evidence to open an investigation into alleged Israeli and Palestinian war crimes in the West Bank, East Jerusalem and the Gaza Strip. One of the most consequential parts of this investigation will be examining whether those responsible for promoting and maintaining the settlements in East Jerusalem and the West Bank – where an estimated 750,000 Israelis currently live – should be held criminally responsible under the Rome Statute. This raises complex legal questions, demonstrating the challenges of incorporating some parts of international humanitarian law (IHL) into international criminal law.

My book examines how the Rome Statute applies to the settlements in the West Bank through a close examination of two relevant Rome Statute crimes: the war crime of the transfer of population, and the war crime of unlawful appropriation of property. The crimes are based on international humanitarian law, and more specifically, the Fourth Geneva Convention prohibition on the transfer of population of the occupying power into occupied territory, and the 1907 Hague Regulations rules on the management of property during an occupation. The analysis shows that while the crime of transfer of population is a suitable vehicle for a prosecution, the lack of clarity in the underlying law will make the crime of appropriation of property much harder to prosecute. 

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Representation as Gender Justice: Gender in the ICC’s Prosecutorial Election – Natalie Hodgson

Editors Analysis, Articles 1 Comment

This piece examines recent developments in the election of the International Criminal Court’s third Prosecutor with a focus on gender issues, in particular, the underrepresentation of female candidates and the vetting of candidates to ensure that they do not have a history of sexual harassment.

At the 2020 Assembly of States Parties meeting, States will elect the third Prosecutor of the International Criminal Court (ICC). At a time when the ICC is faced with increasing challenges, including hostile attacks from States, investigations into politically sensitive situations and limited financial and personnel resources to carry out its mandate, the decision on who will best serve the Court as Prosecutor for the next nine years is particularly significant. 

The election has been far from uneventful. After establishing a Committee on the Election of the Prosecutor (CEP) to receive applications, interview candidates and produce a shortlist for States to consider, there has been frustration with that shortlist, with Kenya arguing that the list is skewed in favour of a particular candidate. The deadline for the nomination period has been extended twice, with the most recent indication being that States are unable to reach a consensus on the shortlisted candidates and are considering introducing other candidates, possibly from the CEP’s longlist. 

Among these developments, gender issues have also featured significantly. This piece discusses two such issues and provides some suggestions for how they can be addressed in the short and long term – first, the underrepresentation of women among candidates nominating for the position of Prosecutor, and second, the vetting of candidates to ensure that they do not have a history of committing, condoning or ignoring sexual harassment. 

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Claims and current developments in the South China Sea – Julia Cirne Lima Weston

Editors Analysis, Articles 1 Comment

This article provides an overview of the conflicting claims to the South China Sea and analyses developments in the area in 2020. The region’s relevance for the maintenance of world trade and connectivity makes it an indispensable area to study and on which to remain informed.

Why is it so important to talk about the South China Sea? The region, although fairly small, is the connecting point between important world trade hubs – connecting Asia to the West – through which major trade tonnage traverses. The region therefore functions as a ‘connecting tissue’ within world maritime trade, through which more oil passes than through the Suez and Panama canals (for further reading, see Robert Kaplan, Asia’s Cauldron: The South China Sea and the end of a stable pacific).  

Territorial claims to the South China Sea and international law

Due to its undeniable relevance to most, if not all, States, the South China Sea issue is often debated both in world politics and international law settings. The territorial dispute involving China, Taiwan, Vietnam, the Philippines, Brunei and Malaysia has been at the centre of the international discussion since 2012. The dispute concerns the region’s maritime territory and its so-called archipelagoes of small land, rock, or reef formations, namely the Spratlys and the Paracels. It also raises important questions concerning international law of the Sea and public international law in general. 

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The ‘National Interest’ test and thinking beyond COVID-19 – Bovas Johannan and Umair Ghori

Editors Analysis, Articles

An opaque and vaguely defined standard may hold the key to national economic recovery in the post COVID-19 era. The problem is that no one knows the exact contours of a ‘gatekeeper’ test that will enable foreign investors to inject much-needed capital into the Australian economy. Traditionally, the Treasurer sought advice from the Foreign Investment Review Board (FIRB), a curious non-statutory advisory body responsible for generating a recommendation for the Treasurer based on the operative factors under the national interest. The final word rests with the Treasurer. 

When the Foreign Acquisitions and Takeovers Act 1975 (Cth) was being debated in the Parliament, it was suggested that the ‘national interest’ criterion should be assessed by reference to a variety of operative factors such as net economic benefits to Australia to justify the change in foreign control, whether the foreign investor was expected to follow practices consistent with Australian expectations and whether the proposal would be consistent with the Government’s policy objectives. In assessing these matters, it was suggested during parliamentary debates that the Government would look at factors such as Australian participation in ownership, control, and management as well as the interests of employees, shareholders, and creditors.

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The public order exception in international trade, investment, human rights and commercial disputes – Zena Prodromou

Editors Analysis, Articles

In her new book, The Public Order Exception in International Trade, Investment, Human Rights and Commercial Disputes, Zena Prodromou analyses the application of the ‘public order’ exception to various legal obligations in international dispute resolution. In this post, Zena outlines the origins of the research and the key findings. In the context of the global coronavirus pandemic and the imposition of unprecedented restrictions in the name of public health, the book is a timely examination of the meaning and application of the concept of ‘public order’ under international law.

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From treaties to domestic law: The Gender Legislative Index as a tool for domesticating human rights – Ramona Vijeyarasa

Editors Analysis, Articles

This article proposes options for enhancing accountability for domestication of global human rights norms. Drawing on the Gender Legislative Index, it briefly explores the limitations of existing accountability mechanisms in the context of women’s rights and CEDAW. It then discusses the potential for using an index to enhance accountability for domesticating human rights norms in national legislation.

The human rights system is designed to hold countries to account for domestication of the norms set out in the core human rights treaties. If viewed through less sceptical eyes, the treaty monitoring body mechanism system does well to bring visibility to those most egregious cases where domestic legislation openly violates international commitments. For instance, the Committee on the Elimination of Discrimination against Women (CEDAW Committee), through its Optional Protocol conducted an inquiry in 2012 into an Executive Order banning contraceptives in wider Manila city (a request I co-drafted at the Center for Reproductive Rights) and, more recently another inquiry into laws that unreasonably restrict access to abortion for women and girls in Northern Ireland. Other monitoring bodies have also brought visibility to domestic laws that violate international human rights such as the Committee  on the Rights of Persons with Disabilities that conducted its inquiry from 2018-2019 into discrimination in the law (and in practice) against people living with disabilities in Hungary. 

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On an Equal Basis with Others: Deaf Community Access to Emergency Broadcasting Through Bushfires and a Pandemic – Part II: The CRPD and Access to Information – Stephanie Triefus

Editors Analysis, Articles 1 Comment

This piece continues from Part I of this series authored by Shirley Liu.

Introduction

Access to information is a key component of the full enjoyment of human rights and fundamental freedoms. Without accessible, timely and complete information, people cannot live independent and full lives, and their safety may be at risk. The reality of this situation for the Deaf Community (those who use Auslan to communicate) in Australia during natural disasters such as the 2019-2020 bushfire crisis and global health crises such as the Coronavirus pandemic was made clear by Shirley Liu in Part I of this series. This second part sets out international legal obligations arising from the Convention on the Rights of Persons with Disabilities (CRPD), along with how these rights have been interpreted by the Committee on the Rights of Persons with Disabilities (the Committee). Deafness falls under the disability framework as it is a sensory impairment which, in interaction with various barriers, may hinder a person’s full and effective participation in society on an equal basis with others (CRPD, Article 1) – however it should be remembered that ‘it is the environment that is disabling, not the impairment itself’.

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Ensuring Respect for International Humanitarian Law: what it looks like in practice – Eve Massingham and Annabel McConnachie

Editors Analysis, Articles

It would be reasonable to expect that the very first article of the most widely accepted of international legal treaties – Common Article 1 to the four Geneva Conventions of August 1949 (CA1) – had been extensively studied. Yet, as a small number of commentators have noted, this is not the case, and indeed, this article has perhaps always attracted less attention than it arguably should have (see for example, Kalshoven at p.16, 27-28). When the ICRC embarked on its now published (2016) Geneva Convention Commentary update project, it was clear that some renewed interest in CA1 would ensue. And indeed it has. Sparking some healthy debate.  

CA1 asserts that the High Contracting Parties must respect the Conventions ‘in all circumstances’. This requires States to implement the law within the Conventions domestically and adhere to the rules in good faith, in times of war and peace. In addition, States must also ‘ensure respect’ for the Conventions – and it is this obligation which is the most interesting to examine.  

We began our own exploration of the concept of ensuring respect for IHL by focusing on how States approach the laws pertaining to weapons regulation. Following on from this body of work, we began considering what ensuring respect might look like across a range of different areas of IHL (such as targeting, detention and the actions of private actors or foreign fighters). To this end we approached a number of experts with areas of interest where we felt it might be possible to observe whether, and how, States fulfil this obligation – indeed, whether they consider it to be a legal obligation at all. The results of those considerations are contained in Ensuring Respect for International Humanitarian Law published by Routledge in August 2020.

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