Category: Articles

With Open Arms: Could Australia’s weapons exports be at odds with its responsibilities under international law? – Suzanne Varrall

Editors Articles

This piece explores the link between international arms transfers and serious violations of international humanitarian law and human rights, and how Australia’s arms exports strategy may be at odds with its obligation to respect international humanitarian law and abide by the Arms Trade Treaty.

Introduction

In Yemen, the Arab world’s poorest country is currently experiencing what the UN has labelled the world’s worst humanitarian crisis. Numerous violations of international humanitarian law and human rights have been documented since March 2015, when Saudi Arabia and the United Arab Emirates (UAE) initiated an international intervention in support of ousted President Hadi. Yet, four years after the conflict began, and with the benefit of significant evidence linking arms supplied by Western countries to indiscriminate civilian attacks in Yemen, the Australian government issued 42 licences to export military or dual-use equipment to Saudi Arabia and the UAE in 2019. The authorisation of these arms transfers comes after the announcement by the government of an ambitious defence export strategy in 2018, aimed at moving Australia into the top ten arms supplying countries in the world and pledging a A$3.8 billion fund to help local arms exporters enter the international market. This post reflects on whether such a strategy is at odds with Australia’s obligations in respect of international humanitarian law and human rights, and whether it could ultimately undermine Australia’s reputation as a global leader on arms control. 

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Climate Adaptation as an Opportunity for Coping, Transition, and Transformation – Hasanthi Tennakoon Kingsley

Editors Analysis, Articles

Introduction

The Intergovernmental Panel on Climate Change (IPCC) together with other experts agree that even small increases in warming yield significant repercussions in terms of climate impacts and the capacity of natural and human systems to adapt to that change. The findings of the IPCC’s Special Report on Global Warming of 1.5°C in 2018, present a stark reality, especially for those who are already vulnerable. As a result, there is now a greater urgency to pursue adaptation.  

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Re-Inventing Intervention: A Case for Implementing the Responsibility To Protect Doctrine in Yemen – Part 2: Challenges and Opportunities for R2P – Alana Bonenfant

Editors Analysis, Articles 1 Comment

This piece is part of a two-part series regarding the application of the R2P doctrine in Yemen. The first part explored the concept of R2P and this second part concerns the specific application of this doctrine to Yemen.

Challenges

A criticism of the R2P doctrine is that it is interventionism masked as humanitarian aid, which has, in the past, failed to achieve its objectives, particularly following the North Atlantic Treaty Organisation’s (‘NATO’) intervention in Kosovo, which proceeded without UN authorisation [at p.287]. The main critique of the intervention in Kosovo is founded primarily on the targeting of dual military – civilian use facilities, in direct contravention of customary international humanitarian law [at p.271]. Aside from the nature of the intervention and the means of force used in Kosovo, the international community recognised a need for an ‘exception to the rule’, that is, intervention in times of emergency, which would traditionally be considered a violation of State sovereignty.

The 2011 military intervention in Libya is considered a failure of the R2P doctrine in its current form; the failures of Rwanda, Bosnia and Kosovo predate the current framework. The intervention lead to further destabilisation and affected the intensity of the conflict long-term. The mandated intention of the allied intervention by NATO was to achieve ‘immediate ceasefire, including an end to all current attacks against civilians by the Gaddafi regime and its supporters’. Despite initial successes, the campaign ultimately failed when the allied nations involved disagreed on which nations would control certain aspects of the campaign, like the no-fly zone. Ultimately, conflict in Libya substantially ended following the death of Muammar Gaddafi n October 2011, and the UNSC subsequently withdrew operations.

A hurdle which inevitably sits in the way of the doctrine’s establishment as a pillar of international law, is its recognition as legitimate practice. Of the 831 UNSC resolutions which have passed since the doctrine was accepted at the World Summit in 2005, only 102 make mention of the doctrine as a whole. Further, despite the fact that Yemen has been in a non-international armed conflict (‘NIAC’) since 2011, only 33 of those resolutions mention the civil war,  and only 1 resolution passed by the UNSC explicitly mentions the R2P doctrine in the context of the Yemeni civil war. While the lack of cognisant recognition of the human rights abuses in Yemen by the UNSC is problematic, it is the lack of acknowledgement which give rise to the opportunity to implement the doctrine and change the narrative surrounding R2P in instances of long-term civil conflict.

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Re-Inventing Intervention: A Case for Implementing the Responsibility To Protect Doctrine in Yemen – Part 1: Establishing R2P – Alana Bonenfant

Editors Analysis, Articles 1 Comment

This piece is part of a two-part series regarding the application of the R2P doctrine in Yemen. This first part explores the concept of R2P and the second part will concern the specific application of this doctrine to Yemen.

Introduction

Between April and July 1994, the world watched in shock horror while Tutsis were murdered in a campaign of mass ethnic cleansing, carried out by the Hutu militia in Rwanda. While there was no operative international program prepared to deal with a genocidal campaign of such proportions, the United Nations (‘UN’) scrambled to intervene without violating the basic principles of international law which form the basis of article 2 of its own Charter (‘UN Charter’). The United Nations Security Council (‘UNSC’) struggled to reach consensus regarding the most appropriate approach not only in Rwanda, but also in Bosnia, as members of the P-5 battled with their respective allegiances and geopolitical motivations. Inaction by the UNSC during the Bosnian Civil War is suggested by some to be one of the contributing factors behind the mass killings across the region, and most notably, the Srebrenica massacre. Following these atrocities, and born from inaction, the Responsibility to Protect (‘R2P’) doctrine was established. The doctrine been criticised since its creation and has failed, on occasion, to effectively manage the conflict it seeks to end or prevent. Despite these shortcomings, humanitarian intervention, specifically the R2P doctrine, remains a viable option to mitigate the effects of the humanitarian crisis in Yemen. 

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The Intellectual Property Response to COVID-19: In Search of Common Good – Mohammad Ataul Karim

Editors Analysis, Articles

“Who owns the patent on this vaccine?’ ‘Well, the people, I would say. There is no patent. Could you patent the sun?”

Jonas Salk, the inventor of the polio vaccine

“Anything under the sun that is made by man is patentable.” 

Diamond vs Chakrabarty, 447 U.S. 303 1980

Introduction

The intellectual property (IP) response to COVID-19 has been one of the key issues in domestic and global legal forums. Most of the discussion has focused on patents for medical products, yet the pandemic has impacted on many sectors.  Parenthetically, it is relevant to note that fashion houses, many of whom own the most valuable trademarks, have been facing a critical question: can their cancellations of orders from the manufacturing factories, largely located in developing countries, be challenged based on the trademark licensing ground, amongst others? In this comment, however, I will briefly address two of the most pressing issues: first, the challenges and options which the IP regime in general, and pharmaceutical patents in particular, offer in combating COVID-19, and second, the policy models available to achieve the common good, i.e. making treatment for COVID-19 accessible and affordable for the highest number of people possible.  

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Remote Sensing Regulation: We’re All in This Together – Megan Lee

Editors Analysis, Articles

Introduction

Space activities conducted by both state and non-state actors are integral to the supply of many day-to-day goods and services. These activities are regulated by a ‘framework of international law that includes multilateral and bilateral treaties and customary international law’ as well as national regulation frameworks through legislation, regulations, and guidelines (Lyall and Larsen at 413). The responsibility of individual States are set out in the ‘hard law’ instruments, which in turn empower States to develop their own national frameworks (Lyall and Larsen at 414). Remote sensing is one such space activity that is governed by ‘soft law’ instruments in the international legal arena, as well as some national instruments (Smith and Doldirina at 241). Remote sensing activities cover the process of satellites gathering ‘raw observational data’ which is then processed and developed for purposes such as Earth observation services, ranging from topographical mapping, weather forecasting, environmental trends and national security operations.

The concerns for the future of remote sensing regulation is adapting to the rapidly changing industry of remote sensing, with advancing technology and the increase of private actors involved in these space activities. A lack of homogeneity amongst legal frameworks leading to uncertain data quality and negative impacts on the utilisation of remote sensing data arising from this internal regime, calls for reform to enhance remote sensing regulation.

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Human rights and climate change in the courts: An international trend – Tess Van Geelen

Editors Analysis, Articles

This is the second article in a two-part series examining the increasing recognition of the relationship between human rights and climate change in international and domestic law. The first part looked at a milestone legal action recently launched in Queensland, while this second part outlines the international context.

Last month the Environmental Defenders Office (EDO) launched a legal challenge against the Galilee Coal Project in Australia. The legal action was the first in an Australian court to spotlight the devastating impact of climate change on human rights. Internationally, however, the case joins an established and growing trend of public interest litigation before international and domestic courts.

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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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