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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Interview with Dr Julie Fraser: Social Institutions and International Human Rights Law Implementation – Part II: Social institutions and dynamism

Editors Interviews, Opinion

In Part I of this series, Dr Julie Fraser and ILA Reporter Assistant Editor Stephanie Triefus discussed how social institutions can be used to overcome the lack of resonance of human rights discourse around the world, including Australia. This part delves deeper into what social institutions are, how they change, and busts some myths about the concept of culture.

ST: Religion is so structured that it seems to have more in common with public institutions, whereas other social institutions like the media, universities etc are more fast and loose, so it really depends on who sets up these organisations and what their intentions are. 

JF: I like the term fast and loose! I think I phrase it in my book as ‘dynamic and evolving’. But that really is it. All of these social situations, because they’re part of our culture, are fast and loose – to varying degrees. Even though we might think of religion as ancient and that we’ve had these practices for sometimes thousands of years, they are constantly changing. For example, Muslims may still pray five times a day, but they now can download smartphone apps that tell the prayer times and play the call to prayer.  So yes, the norms and rules do change based on different influences, and this is the beauty of social institutions: they give the perception of permanence despite constant evolution. We can all be agents within our culture – and if we can bring our social institutions more in line with human rights, then it can be really powerful. And that approach again goes against the legalistic top-down approach. Instead of the international community or national government imposing certain rules, it’s individual people within their social institutions saying, ‘we want these rules’. In my case study, it was Muslim women from within Islamic organisations saying, ‘we want equality and we want reproductive rights’. And that is really powerful.

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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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On an Equal Basis with Others: Deaf Community Access to Emergency Broadcasting Through Bushfires and a Pandemic – Part I: Advocating for Access – Shirley Liu

Editors Analysis, Articles 2 Comments

Introduction

In 2019, as bushfires raged across the lower east coast of Australia, emergency broadcasting became a lifeline to those in affected areas. Australians watched in horror as families huddled on beaches waiting to be rescued and skies turned from smoky grey to red. However, not everyone was able to access the information they needed to stay safe. Press conferences concerning the fires were frequently conducted without Auslan interpreters, and where interpreters were present, they were often cropped from the screen or too small to understand. Article 9 of the Convention on the Rights of Persons with Disabilities (CRPD), to which Australia has been a party since 2008, states that States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to information and communications provided to the public, including emergency services, and shall eliminate obstacles and barriers to accessibility. With climate change and globalisation ensuring that the emergencies will keep coming thick and fast, it has never been more important to ensure that everyone has equal access to information. This post sets out the civil society and legal framework around the rights of deaf individuals in Australia, the issues with access to emergency broadcasting, and a call to action for greater awareness by the mainstream media and political decision makers about the needs of the deaf community. Part II of this series considers how international human rights law deals with access to emergency information for people with disabilities.

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Interview with Dr Julie Fraser: Social Institutions and International Human Rights Law Implementation – Part I: Lessons for international human rights implementation in Australia

Editors Interviews, Opinion 1 Comment

Human rights are now extensively codified in international treaties that enjoy widespread State ratification. The pressing challenge of today is therefore the realisation of human rights in States parties around the world. This has been a difficult task for both governments and international human rights bodies that supervise human rights compliance, which have to date typically taken a legalistic approach. Prioritising State-centric legislative measures in the implementation of human rights, while necessary to an extent, is not always the most effective method of translating human rights law into lived experience. The use of non-legal, culturally sensitive measures is typically neglected in international human rights discourse, to the detriment of implementation in societies where human rights can be seen as a foreign imposition. Dr Julie Fraser’s book Social Institutions and International Human Rights Law Implementation: Every Organ of Society, recently published by Cambridge University Press, addresses this problem by examining the permissibility of other measures of implementation and advocating culturally sensitive approaches for realising human rights. Dr Julie Fraser is a human rights lawyer with experience in both academia and practice. As an Assistant Professor with the Netherlands Institute of Human Rights (SIM) at Utrecht University, Dr Fraser has published, presented, and taught on topics including human rights law, women’s rights, and transitional justice.

Using Islam in Indonesia as a case study, Dr Fraser demonstrates how the right to reproductive health has been successfully implemented through the central involvement of Islamic law and institutions, complemented by grassroots advocacy by Muslim women. Dr Fraser joined Assistant Editor Stephanie Triefus for a conversation about her study and its resonance for Australia’s domestic implementation of human rights.

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