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

05/06/202005/06/2020 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.

Who can withdraw from the WHO? – Keilin Anderson

30/05/202001/06/2020 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.

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

08/05/202008/05/2020 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.

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

01/05/202022/06/2020 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?

International Law and COVID-19: A Preliminary Assessment – Dr Christopher Ward SC

02/04/202002/04/2020 Editors Analysis, Articles, Uncategorized

The sudden and dramatic COVID-19 pandemic raises many novel questions of international law. Once the pandemic phase eventually ends, serious questions will be raised as to the ability of existing international law and global governance structures to cope with such an event. Lessons will be learned, and international law will evolve.

Meanwhile, it is important to consider the existing legal framework and the extent to which international law is responding to the pandemic, as well as the nature of international legal problems that have arisen, or that will clearly develop.

This article discusses international legal issues surrounding the global health response and the developing crisis at sea. Obviously there are many other issues that arise, including serious issues of international trade, restrictions upon international aviation and international freedom of movement, as well as the human rights implications from the sudden and extraordinary domestic measures in many countries that restrict freedom of movement in the most severe ways.

COVID-19, international law and the battle for framing the crisis – Ntina Tzouvala

25/03/202025/03/2020 Editors Analysis, Articles 14 Comments

In one of his most influential interventions to date, the prominent international lawyer Martti Koskenniemi argued that once we know which international institution is going to handle an issue, we automatically know how said issue will be dealt with. These are, of course, uncertain times and predictions about institutional responses are only for the very brave. That said, there is something valuable in Koskenniemi’s assertion that different international legal fields and institutions incorporate different (and often competing) histories, logics, tools and, ultimately, biases. In turn, these divergences make struggles over institutional jurisdiction and legal framing crucial. The ways we choose to understand the ongoing pandemic and the actors that societies mobilise to do so will shape our response, and also the arrangements that will emerge after the crisis is officially over.

The Prospects of The Gambia v. Myanmar (Provisional Measures) in Protecting the Rohingyas – Quazi Omar Foysal

04/03/202004/03/2020 Editors Analysis, Articles

Introduction

The International Court of Justice’s Order indicating Provisional Measures in The Gambia v. Myanmar on 23 January 2020 (Order) has been hailed by many as politically and legally significant in ensuring justice for the Rohingya group. Given the fact that all the interim measures indicated in the Order will remain in force at least until the date of the final decision, unless the ICJ or The Gambia opts for another Order in the interim, this Order will be very crucial in ensuring the interim protection of the Rohingyas for the time being. Against this backdrop, this article aims at elucidating the strengths and weakness of the Order in protecting the Rohingyas from genocide for the interim period. It will also explore its relevance to the final decision.

The Gambia v Myanmar: a watershed moment for the Rohingya, and the Genocide Convention – Craig Hershowitz

16/02/202016/02/2020 Editors Analysis, Articles

It is rare that political leaders turn to courts and ask them to play a role in stopping ongoing mass atrocity crimes. The international judiciary is not a natural defensive weapon against such crimes: their usual ambit extends to retrospective prosecutions of individuals, often many years after the fact. In the recent decision of the International Court of Justice in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), the Court has laid down a marker which may have far-reaching implications. While the decision clearly has significance for Myanmar’s long-persecuted Rohingya minority, it may also redefine the international community’s ability to halt (or at least slow) the commission of mass atrocity crimes.

Corporate Responsibility to Respect Human Rights through the Practice of Human Rights Due Diligence – Md. Abdur Razzak

01/02/202001/02/2020 Editors Analysis, Articles

Introduction

Corporate responsibility to respect human rights is the second pillar outlined by John Ruggie, the UN Special Representative for Business and Human Rights, in his three-pillar framework on business and human rights. Subsequently, it has been placed in part II of the United Nations Guiding Principles on Business and Human Rights, 2011 (UNGPs). This pillar, as elaborated in the UNGPs, demands that businesses should avoid infringing human rights and address adverse human rights impacts with which they are directly or indirectly involved. The UNGPs articulate that responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. This article provides a critical assessment of pillar II of the UNGPs with reference to several key conceptual developments and practices evolved in this area. The central aim of the study is to explain and elaborate the dominant theme of Human Rights Due Diligence (HRDD) through which the UNGPs seek to establish the business respect for human rights. The article also analyses the grey areas in the HRDD process and considers the suitability of the emerging practice of integrating a ‘Human Rights Impact Assessment’ (HRIA) in the HRDD process.

Learning from One Another? Judicial Comparativism as a Facet of Transnational Employment Regulation in the Gig Economy – Margarita Amaxopoulou

08/12/201908/12/2019 Editors Analysis, Articles

‘Workplace laws have not kept pace with technological change’. This was the assertion of the Australian Select Committee on the Future of Work and Workers in its recent report at [4.119], recommending that legislative reform is necessary to afford gig workers employment law protections. Beyond Australia’s borders, ‘AB5’, an Act protecting gig workers as employees, passed the Senate of California this spring and signed into law on 18 September 2019. Regulators in the UK are also committed to bringing forward legislation aligning employment status definitions with modern working practices (p 44). The gig economy, however, does not only attract the attention of legislatures; it also constitutes the locus of fierce litigation around the world concerning the application and enforcement of EU, public, competition and employment law.

This article discusses the transnational character of gig work regulation by reference to litigation against Uber concerning the (mis-)classification of employment status in three jurisdictions. It does so to make the case for a much-needed judicial ‘comparativism’ in this particular context. First, I present a comparative analysis of the legal tests applied in cases with similar factual background in Australia, the United Kingdom and the State of California which led to different legal resolutions. Second, in light of the global character of this legal problem, I argue that judicial comparativism engaging with the reasoning of relevant foreign case law is an important facet of transnational employment regulation in the gig economy.