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.

Diabetes, The Insulin Crisis and The Right to the “Highest Attainable Standard of Health” Under International Law – Benjamin Teng

31/01/202031/01/2020 Editors Articles

Diabetes and the Insulin Crisis

The International Diabetes Federation reports that in 2019 approximately 463 million adults worldwide were living with, and 4.2 million deaths were caused by, diabetes.

Diabetes has no cure. It is a disease where the body is unable to properly regulate its blood glucose levels because of an inability to produce (type 1), or deficiency in producing and using (type 2), the hormone which allows the body to absorbglucose, insulin. For both types of diabetes, the only treatment is by the manual injection of insulin, when and measured as needed, in order to keep one’s blood glucose levels within a safe range. If insufficient insulin is administered, the body enters a state of diabetic ketoacidosis, which, if left untreated, is fatal. People with type 1 diabetes need insulin every day in order to stay alive.

There is, at present, a crisis in access to insulin. Earlier this year, news outlets reported the death of a young man living in the United States (“US”) by the name of Jesimya David Scherer-Radcliff. Mr Scherer-Radcliff had diabetes. He died because he could not afford enough insulin and, consequently, had to ration his supply. This is but one of an increasing number of cases where people, unable to afford increasingly prohibitively priced insulin, are forced to dangerously risk rationing that insulin against medical advice, causing their tragic death.

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.

Icebergs and international law – Matthew Paterson

25/11/201925/11/2019 Editors Analysis, Articles

Despite indigenous peoples such as the Inuit having harvested ice – including from icebergs – for drinking water for centuries, the prospect of commercial harvesting is suddenly gaining mainstream traction. As The Atlantic reports, “Luxury berg-water companies are cropping up across the Arctic. Plans for large-scale operations are growing as well.” While the scale has thus far been minor, there are large-scale plans such as those by the UAE to tow icebergs from Antarctic waters to be harvested.

At first blush, this recent hive of activity seems to operate in a lacuna of international law. After all, icebergs are not specifically mentioned in any international treaty and, as any harvesting has only been on a decidedly small scale, it is exceedingly unlikely that any state practice has yet emerged. Thus, The Atlantic suggested that international lawyers will have to wait for state practice and, ultimately, custom, to develop before there are clear international rules for how icebergs should be treated.

I beg to differ. While there is no International Convention on the Status of Icebergs, that does not mean they exist in a total international law vacuum. Rather, the International Convention on the Law of the Sea (UNCLOS) provides a framework through which the rules surrounding the harvesting of icebergs can be ascertained.

Event: Beyond Googlies & Cricket: India and Australia Trade, Investment, and Successful Dispute Resolution, 20 November 2019

04/11/201904/11/2019 Editors Articles

The Australian Dispute Centre is holding a panel session on 20 November 2019 to discuss the possibilities for the relationship between Australia and India. The event will be hosted in a variety of venues in Brisbane, Sydney, Melbourne, Perth, Adelaide, Patiala, Chandigarh, New Delhi and Kolkata.

Panelists include Gitanjali Bajaj (Partner, DLA Piper), Jo Delaney (Partner, Baker McKenzie), Bronwyn Lincoln (Partner, Corrs Chambers Westgarth) and Natasha Bopaiah (Company Secretary, Australia India Business Council) and will be chaired by Matthew Hickey (Barrister, Level 27 Chambers).

With rising bilateral trade and investment between Australia and India, this is a tremendous opportunity to network in a relaxed atmosphere with members of the Australia India Business Council, legal and ADR colleagues.

For more information, and to register, visit the ADC’s website.