The United Nations Human Rights Council: Bridge or Barrier to Change? – Dr John Pace

29/03/2018 Editors Analysis, Articles, Opinion

In his address at the opening of the current session of the Human Rights Council (HRC), the High Commissioner, Zeid Ra’ad Al Husseini announced that, since this would be his last address as High Commissioner, he was going to be blunt – and indeed blunt he was.

His first target was the permanent members of the United Nations (UN) Security Council (SC) and the ‘pernicious use of the veto’, which made those who used it responsible, ‘second to those who are criminally responsible … for the continuation of so much pain … it is they – the permanent members – who must answer before the victims’.

The Exponential Growth of Child-Abuse via the Internet: A call for International and National Action – Judith Latta

12/03/201817/03/2018 Editors Analysis, Articles, Opinion

With the development of peer-to-peer networks and the dark web (a sub set of the deep web), child abuse activities are now mostly occurring in anonymous and encrypted environments largely out of reach of law enforcement bodies. Images are stored by the terabytes on personal hard drives and shared by the millions. For some people the anonymity seems to have ignited what may previously have been latent tendencies. (Understanding and Preventing Online Sexual Exploitation of Children, Edited by Ethel Quayle and Kurt M. Ribisl. 2012 Routledge. Chapter 11, ‘Situational prevention of child abuse in the new technologies’. Richard Wortley, Jill Dando Institute of Security and Crime Science, University College London. Introduction.) Fueling the problem and driving it to new almost unthinkable dimensions is the issue of desensitisation and destabilisation. (Heather Wood, Internet pornography and paedophilia, Psychoanalytic Psychotherapy, (2013) 27:4, 319-338)

Rights to Abortion in 2018: Sensing the Winds of Change? – Ailsa McKeon

06/03/201807/03/2018 Editors Analysis, Articles, Opinion

It has been estimated that each year, approximately 25 million unsafe abortions take place. This number represents nearly half of all abortions undertaken worldwide. Almost all unsafe abortions occur in developing countries, where around 7 million women annually are hospitalised following terminations performed without the assistance of a trained health worker and in other conditions that place women at risk. Whether abortion is legal and accessible play an enormous role in determining whether a woman will have to take this route to end an unwanted pregnancy.

It is undeniable that the right to life represents a fundamental building block to achievement of all other human rights, but where argument tends to arise is in asking in whom this right accrues. The question of when life begins, considered from scientific, legal, philosophical and religious perspectives, yields a variety of answers, none of which is definitive. Yet, while this may be an interesting philosophical debate, for women seeking to terminate unwanted pregnancies the discord becomes tangible. Throughout the world women’s bodies are the subject of government intervention in the form of how society deals with the legality and practicalities of abortion. While some regimes are highly permissive, treating abortion as an issue of women’s health, others are restrictive to the point of harm, to the extent that a woman may be convicted of a crime for having suffered a miscarriage.

Treaty Now: Why denial of Indigenous self-governance is internationally unjust – Thomas Brennan

04/03/2018 Editors Articles, Opinion

One of the most pointed criticisms levelled at the Turnbull Government in 2017 was its refusal to ratify the proposals of the Indigenous Referendum Council.

In the recommendations of their final report submitted to Prime Minister Turnbull, the Council proposed the creation of an advisory body representative of First Nation peoples to work with the legislature in order to address constitutional inequalities facing Indigenous Australians. The recommendations further included interpreting (or possibly even amending) the power to make laws with respect to ‘any race’ under s 51 (xxvi) as well as establishing an additional legislative committee to oversee the process of ‘truth-telling’ in drafting treaties with respect to Indigenous Australian Sovereignty at a Federal level. This relationship was encapsulated in the word ‘Makarrata’, which denotes a relationship of honesty and candour amongst leaders within the Yolgnu people of Arnhem Land.

(‘Request for Treaty’ by Michael Coghlan/Flickr)

The Turnbull Government defended their position on the grounds that the proposals were unclear in their intent and, in any event, could be so radical that they would create a parliamentary ‘third chamber’, which would prove divisive amongst Australians. This article will explore what models the Referendum Council may wish to pursue with reference to domestic and international notions of representation and sovereignty.

The Treatment of Bitcoin across Different Jurisdictions – Anja Kantic

12/02/201813/02/2018 Editors Analysis, Articles, Opinion

Bitcoin has taken the world by storm as the most popular cryptocurrency. Bitcoin is a means of peer-to-peer transacting with no middleman institutions or banks, no transaction fees and no delay in transfer between parties all around the world. This ease and convenience makes it a popular alternative to conventional banking, in spite of its fluctuating and volatile value.

It is useful to explore the treatment of Bitcoin across different jurisdictions in order to understand how it functions and how it will affect transacting in the future.

Indian court intervenes in Vodafone investment arbitration against India – Ishbel McLachlan

19/09/201718/01/2018 Editors Analysis, Articles, Opinion

The Delhi High Court has temporarily restrained British companies Vodafone Group Plc and Vodafone Consolidated Holdings Ltd (together, “Vodafone“) from taking any further action in respect of a claim against India under the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of India for the Promotion and Protection of Investments (“UK-India BIT“): Union of India v Vodafone Group PLC United Kingdom & Anr. CS(OS) 383/2017.

The Court’s decision was made on the basis that an arbitration under the UK-India BIT would duplicate a claim already filed by Vodafone’s subsidiary Vodafone International Holdings BV (“Vodafone BV“) under the Agreement between the Republic of India and the Kingdom of the Netherlands for the Promotion and Protection of Investments (“Netherlands-India BIT“) and that the “natural forum” for the dispute was the Indian courts. The Court has asked Vodafone to respond to India’s request for a permanent anti-arbitration injunction by 26 October 2017 before any further orders are made.

Please don’t take my arbitrators away: a clash of terms between arbitration agreements and institutional rules – Andrew Foo

31/08/201704/12/2017 Editors Analysis, Articles, Opinion

It is reported that the courts of the People’s Republic of China (“PRC”) have refused to enforce a Singapore International Arbitration Centre (“SIAC”) award under Article V(1)(d) of the New York Convention, on the basis that “the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties…”.

In this case, two parties entered into a contract for the sale and purchase of iron ore. However, the arbitration agreement therein contained a potential (and potent) clash of terms:

The arbitration agreement provided for a three person panel, and

The arbitration agreement also provided for arbitration under the SIAC Rules, and the SIAC Rules contain an expedited procedure and state that if this expedited procedure applies, the case would be referred to a sole arbitrator (unless the SIAC determines otherwise).

Can there be justice for Otto Warmbier? – Lorraine Finlay

17/08/201717/01/2018 Editors Analysis, Articles, Opinion

(“Mansudae Monument” by Evan Ritli/Flickr)

There is no such thing as a funny dictatorship. This seemingly obvious point was highlighted with the death of Otto Warmbier, who was until recently imprisoned in North Korea. While Hollywood movies like Team America: World Police and The Interview have, from time to time, parodied the North Korean regime, Warmbier’s death is a stark reminder that this regime is not a joking matter.

Investor-State Dispute Settlement: Controversial, but Constitutionally Valid? – Lisa Burton Crawford, Patrick Emerton and Emmanuel Laryea

15/06/201715/06/2017 Editors Analysis, Articles, Opinion

Investor-State Dispute Settlement (ISDS) clauses are a prominent feature of many modern International Investment Agreements (IIAs). They are included in nearly all the IIAs to which Australia is a party. Typically, an ISDS clause allows a foreign investor (often a corporation) to challenge a government decision before a panel of private arbitrators who have the power to make decisions and make awards that are binding and enforceable.

Interview with Professor Gillian Triggs: A Truly International Lawyer

30/03/201718/01/2018 Editors Articles, Opinion

For our fourth profile of Women in International Law Month, Editor-in-Chief Jennifer Tridgell sat down with the President of the Australian Human Rights Commission (AHRC), Professor Gillian Triggs. She is a highly accomplished international lawyer and academic, with experience on matters from commercial law to Indigenous rights.

Professor Triggs is the incumbent President of the Australian Human Rights Commission. Previously, she was Dean of the Faculty of Law at the University of Sydney and Director of the British Institute of International and Comparative Law. Gillian has been a consultant on International Law to King & Wood Mallesons, the Australian representative on the Council of Jurists for the Asia Pacific Forum for National Human Rights Institutions, Chair of the Board of the Australian International Health Institute and a member of the Attorney General’s International Legal Service Advisory Council. She is the author of many publications on international law, including “International Law: Contemporary Principles and Practices” (Second Edition, 2011).