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Safety in numbers isolation Can biosecurity laws save us from coronavirus?
A nation lost in the dark
Contracts versus corona
The fight for equality
Not-so-smooth sailing
Two North Korean defectors open up about the true cost of human rights abuses at home
Lawyers are on the frontline of the battle for LGBTQI rights, but what about equality in law firms?
It’s certainly not business as usual, but has it descended into business impossible?
How cruise ships have become the centre of conflict between State and human rights
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33rd LAWASIA Conference 7 – 10 September 2020 | Ulaanbaatar, Mongolia Register your interest
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CONTENTS
May 2020
ISSUE 06
Features 28
How we fled North Korea
20
Law in isolation
Will tough biosecurity laws save the Asia Pacific region from the COVID-19 turmoil unfolding in the US and Europe? Asian Jurist Senior Journalist Amy Dale writes.
Photos (from top to bottom): Raditya/iStock; Kate Allman/LSJ
Hyeonseo Lee and Thae Yong-Ho defected from the world's most secretive regime. They tell Kate Allman how they risked their life, and why they are still fighting for their people.
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Equality in law
Asian Jurist Managing Editor Claire Chaffey and Floyd AlexanderHunt ask Australian LGBTQI lawyers what more can be done to ensure equality and compassion in the profession.
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The rights of the Rohingya
In a revealing converstation, Param-Preet Singh tells Amy Braunschweiger how the recent ICJ order will hold Myanmar accountable for atrocities committed against the Rohingya.
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CONTENTS
46 Illumination
72
Ideas, analysis and inspiration from leading legal commentators around the globe
Limitless
Human rights in Nepal
Ella Howard explores the suite of human rights initiatives underway in Nepal, and whether they're working.
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Words of wisdom on careers, professional development, wellbeing and lifestyle
Uncharted waters
Dr Christopher Ward SC investigates the legal tensions surrounding the cruise industry during the pandemic.
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Law in the time of corona
Wilson Antoon, Paul Starr and Mike Wang on the current unique challenges of contractual perfomance.
Regulars
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04 From the President 06 From the Secretary-General 08 Contributors
Cover design by Michael Nguyen
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Regional news
16
Opinion
78
LAWASIA advocacy
86
Inspiration
64
The art of doing nothing
Why relaxing is the best recharging
66
Swimming with sharks
How do you make the best decisions?
68
Embracing minimalism
How decluttering can clear your mind
70
Walking the walk
It's time to ditch step count shame
72
Country guide
The hidden wonders of Japan
Photos (clockwise from top right): Panuwat Dangsungnoen/iStock; LAWASIA; Jules2013/iStock
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LAWASIA Environmental Law Conference in the Pacific 23 – 24 April 2021 | Denarau, Fiji For more details visit
www.lawasiafiji2020.com
In association with
FROM THE PRESIDENT
In the current climate ... LAWASIA’s presence as a voice of reason has never been more important.
I
am honoured to prepare my first President’s message for Asian Jurist. LAWASIA was created over 50 years ago, based on the shared understanding among the legal profession in Asia and the Pacific region of the importance of forming a regional association of law associations, lawyers, judges and jurists. Since its inception, LAWASIA has operated to promote the cross-jurisdictional exchange of legal knowledge, as a voice of the legal profession, and as a conduit for encouraging adherence to mutually-held principles of the rule of law, professional integrity and the protection of human rights. LAWASIA’s central aim is to strengthen relations among law associations, lawyers and government representatives in Asia and the Pacific region, and to promote shared understanding and knowledge. In support of that aim, LAWASIA hosts various conferences annually, which offer participants an opportunity to learn from highly esteemed speakers and to collaborate and share information. This year, the timing of LAWASIA’s conferences has been affected by the escalation and spread of the novel coronavirus, COVID-19, and the associated travel restrictions imposed internationally. With our paramount concern being the safety of our members and staff, LAWASIA is continuing to adapt to these unexpected circumstances. Despite being unable to physically participate in conferences for the time being, LAWASIA will continue to be a conduit for regional cooperation and a platform to assist and support lawyers by rolling out webinars to help our members enrich their knowledge in this time of ‘new normal’. In addition to LAWASIA’s ongoing advocacy work, we will also continue publishing our newsletters and Asian Jurist. In the current climate of a world grappling with the impacts of COVID-19, including the many emergency measures that states have adopted (often at the expense of established human rights protections), LAWASIA’s presence as a voice of reason and as an important advocate for the protection of fundamental rights has never been more important. I commend this publication of Asian Jurist to you, covering themes including the rule of law, human rights and business, as a timely reminder of the important role we all have to play, and of our strength in unity.
Chunghwan Choi President
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Join the LAWASIA community Uphold the rule of law. Advocate for human rights. Expand business opportunities. Become a LAWASIA member today. Visit lawasia.asn.au/membership
www.lawasia.asn.au/membership
F R O M T H E S E C R E TA R Y- G E N E R A L
“It is the personal connections on which I reflect the most. The friendships ... are unique, strong and enduring.”
I
write my final message for Asian Jurist just as LAWASIA's President, Chunghwan Choi, writes his first, having resigned my position of LAWASIA Secretary-General. I also write during a period of exceptional global challenge – a period likely to transform our lives as we once knew them. I officially began my journey with the exceptional organisation of LAWASIA in 2013. As the CEO of the Law Society of New South Wales, I was honoured to take up the mantle with LAWASIA and continue to foster the strong relationship between the two organisations. I was equally committed to ensuring LAWASIA could continue to grow its important work in the region; protecting the rule of law, speaking out against human rights abuses, and facilitating critical business networks across Asia, the Pacific and beyond. And what an adventure it has been. Over the past seven years, I have seen the organisation go from strength to strength, growing in terms of membership, influence and authority. The calibre of jurists involved in LAWASIA – whether through governance, events, academia or otherwise – is hugely impressive, and the organisation has much of which to be proud. As I prepare to hand over the reins at LAWASIA and the Law Society of New South Wales – and move into my new role as CEO of the Law Council of Australia – it is the personal connections on which I reflect the most. The friendships I have formed over the years are unique, strong and enduring. Many were forged over LAWASIA traditions such as piano bar singalongs, or after respectful debates in executive council meetings or the exchange of ideas in the back of a tuk tuk. All of them are special, and the sum of my experiences with LAWASIA leaves me enriched and forever changed. To those with whom I have shared those experiences I say, with depth of gratitude, thank you. I look forward to continuing my engagement with LAWASIA in a different role, and to seeing what we can achieve together in the years to come. Until then, take care of yourselves and each other. Our LAWASIA community is, in this moment, more important than ever.
Michael Tidball Secretary-General, LAWASIA
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Keep our community engaged Member contributions needed! Send us your contribution about recent developments in human rights at: lawasia@lawasia.asn.au and get featured in our monthly Human Rights Update.
Contributors RULE OF L AW | HUMAN RIGHTS | BUSINESS
Managing Editor Claire Chaffey Associate Editor Klara Major Senior Journalist Amy Dale Designer and Art Director Michael Nguyen Editorial & Advertising Enquiries aj@lawasia.asn.au LAWASIA Secretariat Level 11, 170 Phillip Street, Sydney, NSW 2000, Australia P: +61 (02) 9926 0165 F: +61 (02) 9223 9952 E: lawasia@lawasia.asn.au twitter.com/LAWASIA_alerts facebook.com/lawasiaassociation linkedin.com/company/lawasia Š 2020 LAWASIA. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of LAWASIA. Opinions and views expressed in this publication are not the official opinions or views
Amy Dale
Kate Allman
Amy Dale is the senior journalist at Asian Jurist. She is also a full-time writer at the Law Society of New South Wales' multi-award-winning member magazine LSJ. Amy has more than a decade of experience in legal journalism, working for several years as the chief court reporter for a Sydney newspaper and is a published author. Before joining the Law Society of New South Wales, she was a senior policy and communications advisor for the New South Wales Government, specialising in addressing domestic violence, sexual assault and the child protection system. On page 20 of this edition, Amy investigates the role biosecurity laws play in the Asia Pacific response to the COVID-19 pandemic.
Kate Allman is a multimedia journalist, features writer and the online editor at the Law Society of New South Wales' member magazine LSJ. Kate has a double degree in law and journalism from the University of New South Wales in Sydney. Last year, Kate travelled to Seoul to moderate a discussion with former Australian Prime Minister Julia Gillard and other experts regarding sexual harassment in the legal profession, in the wake of the International Bar Association's landmark report 'Us Too'. Whilst there, she sat down to interview two defectors from North Korea, who revealed their daring escape and why they will continue to shine a light on the abuses of their homeland. Her exclusive interview is on page 28.
of LAWASIA or Asian Jurist unless expressly stated. LAWASIA and Asian Jurist accept no responsibility for the accuracy of any information contained in this publication and readers should rely upon their own enquiries in making decisions touching their own interest. Asian Jurist is proudly produced in partnership with the Law Society of New South Wales.
Have an idea for Asian Jurist? We are looking for contributors to expand our global network of exceptional writers and legal experts. Contact managing editor Claire Chaffey at claire.chaffey@asianjurist.com to discuss your editorial ideas.
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CONTRIBUTORS
Richard Susskind OBE Dr Christopher Ward SC Wilson Antoon, Paul Starr & Mike Wang Professor Richard Susskind OBE is Dr Christopher Ward SC is a barrister in an author, speaker, and independent adviser to major professional firms and to national governments. His main area of expertise is the future of professional service and, in particular, the way in which the IT and the Internet are changing the work of lawyers. He has worked on legal technology for over 30 years. He lectures internationally, has written many books, and advised on numerous government inquiries. Since 1998, he has been IT Adviser to the Lord Chief Justice of England and Wales. He is President of the Society for Computers and Law, Chair of the Online Dispute Resolution Advisory Group of the Civil Justice Council, and Chair of the Advisory Board of the Oxford Internet Institute where he is also a Visiting Professor. He also holds professorships at UCL, Gresham College, London, and the University of Strathclyde in Glasgow and consults widely in the private sector to major law firms and large in-house legal departments. Richard has a first class honours degree in law from the University of Glasgow and a doctorate in law and computers from Balliol College, Oxford. His passion is the modernisation of the practice of law and the administration of justice. On page 18 of this edition, in an extract from his latest book, he examines the revolution in online courts.
6 St James Hall International Chambers, based in Sydney. He is a highly experienced and successful commercial advocate before trial and appellate courts and arbitral tribunals. He is the global President of the International Law Association and has a multidisciplinary and international practice in large commercial disputes and inquiries, international law, insolvency, constitutional and governmental disputes. He has particular expertise in international anti-corruption and bribery cases and is a recognised expert in the fields of public and private international law where he has expertise in boundary disputes, foreign judgments, the law of the sea, aviation, resources and investor-state disputes. He appears regularly in cases which involve domestic and international law and accepts instructions in areas as diverse as human rights, maritime boundaries and diplomatic immunity. He is known for his pro bono work in human rights in appropriate cases. Christopher is also an Adjunct Professor at the Australian National University. On page 52, he investigates the cruise ship debacles at the centre of COVID-19 outbreaks around the world and the tensions between States’ rights and the humanitarian needs of passengers and crews on board.
All three co-contributors are partners at King & Wood Mallesons. Wilson Antoon is an international arbitration and litigation specialist with extensive experience managing large-scale disputes arising out of foreign investment, M&A, joint ventures, financial services, trade practices, fraud and commercial contracts as well as cross-border recognition and enforcement proceedings across jurisdictions. He has been recognised by Legal 500 for international arbitration and public international law. Paul Starr is asialaw's Hong Kong Disputes Star of the Year, and joint coordinator of KWM's worldwide arbitration practice. He is Practice Team Leader in Hong Kong for construction and dispute resolution and has been cited by Euromoney as a world leader in litigation. Lianghua (Mike) Wang has represented multinational and medium-sized enterprises in their investments in China. His work on investment transactions has involved clients in transportation (ports), energy, chemicals, machinery, and infrastructure facilities. He provides ongoing legal and compliance advice to domestic, wholly-foreign owned and sino-foreign invested enterprises. On page 58, they examine the state of contract law under PRC, Hong Kong and English laws in the age of COVID-19.
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Regional news
3D render of the coronavirus
Singapore and Thailand step-up enforcement of fake news laws amid pandemic panic Singapore has used its fake news law to combat spread of disinformation regarding the coronavirus, according to a BBC report. The Protection from Online Falsehoods and Manipulation (POFMA) Bill first came into effect in October 2019. It is designed to empower executive level government ministers to order the removal and/or correction of content they deem to be false and “against the public interest�. “Correction order[s]� have previously been issued against fringe newspaper The States Times Review and against an opposition political figure from the Singapore Democratic Party (SDP), who wrote what was deemed to have been a factually erroneous online article and Facebook posts about the government. 10
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On 5 February, Singapore’s High Court dismissed the SDP’s appeal against the POFMA direction, making it the first judicial review of the operation of the new law, according to The Straits Times. Facebook, whose Asian offices are located in Singapore, voiced deep concern over the ruling but has agreed to comply with the directions and pay the relevant fines. The Straits Times reports the most recent correction orders have been issued to combat inaccurate stories about fake cures for the coronavirus, or false claims Singapore is running out of face masks or allegations of police brutality during the pandemic. Thailand has also enacted similar laws and its new Anti-Fake News Centre, first
launched in November 2019, now appears to have come into its own during the COVID-19 pandemic. On 16 March, The Washington Post reported 13 people had been arrested in Thailand for spreading fake news about the virus. The Thai Minister of Digital Economy and Society, Buddhipongse Punnakanta, who also heads the new Anti-Fake News Centre, said the measures and arrests were needed because “false news makes people panic and public officials work harder to contain the spread of the virus�. When the centre opened in November, the Minister told reporters it was “not for protecting the government from any critics. It is for protecting the people from fake news�.
Photos (from lef t to right): Apple Design/iStock; Guenter Guni/iStock; Michal Klajban/Wikimedia Commons
FREEDOM OF SPEECH
REGIONAL NEWS
TERRORISM
Portrait of an elder man belonging to the COMPENSATION
Toraja people of Sulawesi, Indonesia
Victims compensated for massacres under Dutch colonial rule Guardian Australia reported the International Court of Justice in The Hague has ordered The Netherlands to compensate the families of victims killed during massacres perpetrated by Dutch forces during its colonial rule of Indonesia during the 1940s. Dutch forces executed 11 men during a crackdown on independence movements in the province of South Sulawesi in 1946–47. The Dutch government unsuccessfully argued that the charges should be dismissed as they were beyond the statute of limitations. However, the Dutch Court found in favour of the families of the Indonesian men. Those family members who witnessed
COURTS
China's brave new world of digital justice Well before COVID-19 forced justice systems to go online around the world, China’s Supreme People’s Court had already endorsed the streamlining of court cases using cloud computing and blockchain. A “mobile court�, which uses social networking site Wechat, was launched
the killings or were otherwise affected were awarded compensation, ranging from approximately 126 to 10,000 euros. Liesbeth Zegveld, the claimants’ lawyer, said: “It took eight years of proceedings. It’s a pity that The Netherlands government hasn’t been more forthcoming, as many of our clients passed away during the proceedings. Nevertheless, for those still alive and all the families, the court’s recognition of their suffering and their entitlement to compensation is important.� The Court recognised in its ruling that the sums granted to the relatives of victims were “disproportionate� to their suffering.
in March last year and has already heard more than three million cases, according to an official Policy Paper released in December. According to The Japan Times, the first “cyber court� in China was launched in 2017 in the eastern city of Hangzhou and reportedly operates featuring an online interface in which litigants appear by video chat while an AI judge – complete with on-screen avatar – prompts them to present their cases. The Hangzhou Internet Court hears mainly trade law, copyright and consumer law cases.
Perpetrator of Christchurch massacre pleads guilty A little over one year on from the shocking massacre of 51 worshippers at two Christchurch mosques on 15 March 2019, Australian man Brenton Tarrant has confessed to the killings. According to ABC News, Tarrant appeared in court via video link on 26 March and pleaded guilty to 51 murder charges, 40 charges of attempted murder, and a terrorism charge. The judge hearing the case postponed the sentencing until such date as the victims’ families could attend court in person. The number of people in New Zealand courts is currently restricted due to lockdown measures stemming from the COVID-19 pandemic. Prime Minister Jacinda Ardern said Tarrant's change of plea would at least relieve the victims’ families from the “ordeal� of a trial.
Vice President Ni Defeng told visiting journalists that the Court eases pressure on human judges and speeds up the resolution of disputes. He added that the use of blockchain technology is particularly useful, helping to streamline and create clearer records of the legal process. With 850 million mobile users in China and a rapid uptake in e-commerce and e-commerce disputes, the court system has had to adapt. Since Hangzhou, China has set up similar chambers in Beijing and the southern metropolis of Guangzhou.
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REGIONAL NEWS
HUMAN RIGHTS AND CONSTITUTIONAL LAW
Controversial citizenship amendment act challenged in Supreme Court structural principles of the secular nation of India, as it makes religion a condition for citizenship. The law is also particularly concerning to many who have feared the growing disenfranchisement of Muslims following the introduction of the National Register of Citizens in the state of Assam on the India-Bangladesh border in 2019. Aljazeera reports that in March, United Nations Human Rights Commission (UNHRC) Chief Michelle Bachelet announced her office had also filed a motion with the Supreme Court, seeking to be joined as a third party in a petition filed by a former civil servant. A spokesman for India’s Ministry
of External Affairs said, “The CAA is an internal matter of India and concerns the sovereign right of the Indian Parliament to make laws. We strongly believe that no foreign party has any locus standi [rights] on issues pertaining to India’s sovereignty.� However, constitutional expert and past Asian Jurist contributor Prof Faizan Mustafa told Al Jazeera the Supreme Court may end up hearing the UNHRC application. “As a UN member, we are bound by our pledge under Article 56 of the UN charter to uphold fundamental freedoms of all people. We cannot discriminate on the basis of religion,� he said, adding the UNHRC move may “damage India’s reputation�.
INTERNATIONAL LAW
ICJ orders Myanmar to take “all measures� to prevent another genocide In January, a 17-member panel of judges of the International Court of Justice (ICJ) in The Hague unanimously ordered Myanmar to take “all measures within its power� to prevent another genocide of its Rohingya population and to report back to the Court within four months. The ICJ’s orders are legally binding and not subject to appeal, however they cannot be enforced. 12
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In August 2017, the Myanmar government led a crackdown against the Rohingya Muslim population in Rhakine state. Thousands were killed or raped, villages were burned, and around 700,000 fled to neighbouring Bangladesh leading to a humanitarian crisis in that country. Myanmar’s de facto leader, Ms Aung Sun Suu Kyi, appeared in person at The Hague to defend the charges.
BBC World News Asia reports that Suu Kyi told the Court the case was “incomplete and incorrect� and “an internal armed conf lict� sparked by Rohingya attacks on government police. Mr Tambou, the lawyer who brought the case to the ICJ on behalf of The Gambia, a Muslim majority nation, was reported by the BBC World New Africa as saying: “The case at the ICJ is Gambia showing the world you don’t have to have military power or economic power to denounce oppressions. Legal obligation and moral responsibility exist for all states, big or small.�
Photos (from lef t to right): Tejj/Unsplash; Woofmy/iStock; Yong Yuan/iStock
At least 140 petitions are currently before the Supreme Court of India, challenging the country’s controversial Citizenship Amendment Bill that was passed by parliament last December. The Wire (India) reports the amendments grant fast-tracks citizenship to members of six non-Muslim communities (Christian, Hindu, Sikh, Buddhist, Jain, and Parsi ) who face religious persecution in Pakistan, Afghanistan and Bangladesh and “who had entered India before December 31, 2014�. Lawyers argue the law is discriminatory and offends Article 14 of the Constitution, which guarantees equality before the law and is contrary to the
REGIONAL NEWS
DISCRIMINATION
Women fight for gender equality in name and practice
DISCRIMINATION AND CONSTITIONAL LAW
High Court of Singapore
High Court upholds law against same-sex relationships Singapore’s High Court has dismissed an appeal brought against a law banning sex between men. A Channel News Asia story on 30 March reported the Court dismissed the challenge of three men on discrimination and constitutional grounds. Under section 377A of Singapore’s Penal Code, any man who commits any act of ‘gross indecency’ with another man in public or in private can be jailed for up to two years. This extends to any man who abets such an act, procures or attempts to procure such an act. The applicants were galvanised to launch the action after former Chief Justice Chan Sek Keong called for a review of the law in a paper published online last October. However, Justice See Kee Oon rejected
the men’s Constitutional law arguments and defended the decision not to proactively enforce the law. In his summary judgment, Justice See said that section 377A “serves the purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts� and could not be considered redundant simply because of its non-enforcement. The Court also found that “there was no comprehensive scientific consensus that a person’s sexual orientation was biologically determined such that it is immutable� and that the Court was not an “appropriate forum to seek a resolution of a scientific issue that remains controversial�. One of the men has already stated his intention to appeal the decision.
Japan's High Court has rejected an appeal brought by three couples who sought to overturn a century-old law that requires married couples to share the same last name, finding that the law was constitutional, reports The Japan Times. The couples argued the law was discriminatory. While men can change their names, in practice only about 4 per cent do so, leaving many women feeling as though their family history and career achievements are wiped away when they are effectively forced to change their names upon marriage, according to The Straits Times. Some couples opt to remain in de facto relationships, despite wanting to marry, so they can keep their own names. As a result, they are unable to access tax exemptions, and custody of their children can only be awarded to one parent. The Japanese opposition party has been vocal in its desire to improve gender equality and overturn the marriage law. Prime Minister Shinzo Abe says it is not discriminatory, but a tradition. The plaintif fs say they will appeal.
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REGIONAL NEWS
CRIME AND HUMAN RIGHTS
Hong Kong police arrested 15 pro-democracy protestors on 19 April. The Japan Times reports that the group included former lawmakers Martin Lee QC, Margaret Ng, Albert Ho, Leung Kwok-hung, Au Nok-hin and current lawmaker Leung Yiu-chung. They are due to face court in mid-May. Lee, an 81-year-old barrister known as the father of democracy in Hong Kong, told the media: “Finally I’ve become a defendant. How do I feel? I’m very much relieved ‌ For so many years, so many months, so many good youngsters were arrested and charged, while I was not arrested. I feel sorry about it.â€?
The city’s police chief Chris Tang said Lee’s remarks left him “very worried and surprisedâ€?. “As a veteran of the legal profession ‌ he continues to incite youngsters to violate the law. I don’t think he should feel proud, he should feel ashamed,â€? Tang said. Last year’s peaceful rallies against the proposed extradition bill morphed into a wider, highly destructive movement calling for greater freedoms in the most concerted challenge to Beijing’s rule since the former British colony returned to Chinese sovereignty in 1997. The protests and clashes with police have since died down, partly due to exhaustion and arrests, but also because of the emergence of the deadly coronavirus. British and American governments have voiced strong criticisms of the latest arrests, and the Law Council of Australia has joined with other international legal associations to express its concern, calling for the group’s release. In a statement on 20 April, the Law Council said: “We consider that the arrests violate the right to peaceful protest, which is protected under the Joint Declaration and the Hong Kong Basic Law. These instruments guarantee Hong Kong residents the rights to freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration until 2047.â€?
“Finally I’ve become a defendant. How do I feel? I’m very much relieved.� – Martin Lee QC
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Photos (from lef t to top right): Voice of America/Wikimedia Commons; Hille Hillenga/Wikimedia Commons; Kate Allman
Prominent lawyers and lawmakers arrested following 2019 protests
REGIONAL NEWS
DEMOCRACY AND HUMAN RIGHTS
North Korean defector wins seat in South Korean Parliament – Gangnam style
Bodies of MH17 victims were transported from CRIMINAL TRIAL
Kharkov to the Eindhoven Air Base in Netherlands.
Trial over the downing of Malaysian flight MH17 gets underway In 2014, almost 300 people people were killed on Malaysia Airlines flight MH17 after it was shot down over eastern Ukraine. Aljazeera reports that the missile that brought down the plane can be traced back to a “Russian anti-aircraft brigade�. A joint Dutch-led investigative team identified four suspects – three of them Russian and one Ukrainian. Russia has refuted the claims, labelling them “groundless accusations�, and has refused to extradite the men. The fourth man, a Ukrainian, will be represented by a lawyer, but will not appear himself. According to the BBC, Malaysia led a push at the UN to establish an international tribunal into the incident, but was defeated when Russia exercised its veto power. As such, on 9 March 2020 a separate trial began in a domestic court
in The Netherlands under their own laws (most of the victims were Dutch; others were Malaysian, Australian and Belgian). The Russian suspects will be tried in absentia after they failed to appear. ABC News reports that Australia has supported the decision to prosecute the four suspects. “The downing of MH17 was a despicable act and the Australian Government has not stopped in the pursuit of justice for the 298 victims, including 38 Australians,� said Australian Foreign Minister Marise Payne. Two class action lawsuits have also been filed with the European Court of Human Rights in the name of 380 relatives of victims. The plaintiffs accuse Russia of having violated the victims’ right to life.
North Korean defector Thae Yong Ho has won a seat in South Korea's parliament in a sensational victory on 16 April. The former North Korean Deputy Ambassador to Britain celebrated with colleagues and United Future Party colleagues in his campaign office in the exclusive, wealthy district of Gangnam – made famous by the international dance hit “Gangnam Style� in 2012. According to reports from Reuters, Thae defected while working as ambassador in London in 2016 and then worked in South Korea as a foreign policy expert. He is also reportedly the first North Korean refugee to become a lawmaker representing a constituency in South Korea (representing Gangnam prefecture). Reuters reports that the election drew unprecedented levels of participation from North Korean defectors challenging what they saw as the flawed cross-border policy of President Moon Jae-in. Defector groups have complained that Moon's administration cut funding, ignored human rights and suppressed antiPyongyang activism in favour of pursuing reconciliation with the Kim regime. Read our interview with Thae YongHo on page 28.
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OPINION
CLIMATE
UN ruling a game-changer for climate refugees and climate action
T
he recent ruling by the United Nations that governments cannot return people to countries where their lives might be threatened by climate change is a potential game-changer – not just for climate refugees, but also for global climate action. The UN Human Rights Committee’s landmark ruling made clear that “without robust national and international efforts, the effects of climate change in receiving states may expose individuals to violations of their rights … thereby triggering the non-refoulement obligations of sending states.” The ruling elaborates further to say: “Given the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realised.” The judgment relates to the case of Ioane Teitiota, a man from the Pacific island of Kiribati. In 2015, Teitiota applied for protection from New Zealand after arguing his life and his family members’ lives were at risk due to the effects of climate change and sea level rise.
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The Republic of Kiribati is considered one of the countries most at risk of being rendered uninhabitable by rising sea levels. The UN committee ruled, however, that in the time that might happen – 10 to 15 years – there could be “intervening acts by the Republic of Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population.” As a result, the committee ruled against Teitiota on the basis that his life was not at imminent risk.
Climate refugees acknowledged
Teitiota did not become the world’s first climate refugee, but the committee’s ruling essentially recognized that climate refugees do exist, a first for the UN body. The ruling acknowledges a legal basis for refugee protection for those whose lives are imminently threatened by climate change. For several decades, academics and policy-makers alike have debated the existence of climate refugees, with many asserting that because migration can be fuelled by many factors, climate change
cannot be singled out as the sole driver of any movement. However, with the acceleration of the climate crisis over the last 10 years, people are increasingly being displaced by disasters, desertification and coastal erosion linked to climate change. The UN High Commissioner for Refugees, Filippo Grandi, confirmed that the recent ruling means those displaced by climate change should be treated like refugees by recipient countries. Grandi noted: “The ruling says if you have an immediate threat to your life due to climate change, due to the climate emergency, and if you cross the border and go to another country, you should not be sent back because you would be at risk of your life, just like in a war or in a situation of persecution.” Grandi and some media commentators have predicted the ruling may open the door to surges of legal claims by displaced people globally. But the burden of proof that someone’s life is under imminent threat by climate change remains high. Teitiota’s case is a good example. Despite his arguments that sea level rise, overpopulation and salt-water intrusion
Photo: Marek Okon/Unsplash
A recent ruling on climate change refugees will change the way the world deals with climate action, writes YVONNE SU.
OPINION
“The committee’s ruling essentially recognised that climate refugees do exist, a first for the UN body.� were threatening his life and the lives of his family, the New Zealand court and the UN Human Rights Committee ruled against him, saying he could not prove that his life was in imminent danger.
Floodgates not open yet
And so while this latest UN ruling is a momentous first step in international law, it by no means opens the floodgates to surges of climate refugees. But it does represent a win for global climate action. It’s not legally binding, but it illustrates to governments around the world that climate change will have an increasing impact on their legal obligations under international law. This is great news for citizens and
governments of small island states who have long pushed for climate action but have been met with delays and rejections. For example, during last year’s Pacific Island Forum that brings together 16 Pacific island nations, as well as Australia and New Zealand, the 16 islands put forward the Tuvalu Declaration to ask for more action on climate change. But sections of the original declaration were struck down due to reservations from Australia and New Zealand. Australia reportedly had concerns about emissions reductions, coal use and funding for the UN’s Green Climate Fund, while New Zealand also expressed concern about the fund. Fijian Prime Minister Frank Baini-
marama criticized the final declaration, tweeting: “We came together in a nation that risks disappearing to the seas, but unfortunately, we settled for the status quo in our communique.â€? Tuvalu Prime Minister Enele Sopoaga also told Australian Prime Minister Scott Morrison: “You are concerned about saving your economies ‌ I’m concerned about saving my people.â€? Ironically, following bushfires that recently raged across Australia and displaced thousands, concerns have arisen that Australia will soon have to deal with its own climate refugees. The pressure is mounting for world leaders to take serious climate action to aggressively curb greenhouse gas emissions. The latest UN ruling is step towards improving the lives of those most vulnerable and affected by climate change. This article was first published on The Conversation and is republished here under Creative Commons license: bit.ly/2Xa4LMy Yvonne Su is studying for a PhD, International Development and Political Science, at the University of Guelph, Canada.
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OPINION
TECHNOLOGY
Online justice
The way of the future?
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ore people in the world now have access to the internet than access to justice. According to the Organisation for Economic Cooperation and Development (OECD), only 46 per cent of human beings live under the protection of the law, whereas more than 50 per cent of people are now active users of the internet in one way or another. Annually, one billion people are said to need “basic justice care” but “in many countries, close to 30 per cent of problem-owners do not even take action”. As for public funding of legal and court services, it was found in a leading global study of legal aid, involving 106 countries, that around one-third “have not yet enacted specific legislation on legal aid” and that the “demand for legal aid in civil cases is largely unmet in most countries”.
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Meanwhile, the courts of some jurisdictions are labouring under staggering backlogs – for example, 100 million cases in Brazil (as noted), and 30 million in India. Even in those legal systems that are described as “advanced”, court-systems are under-resourced, and the resolution of civil disputes invariably takes too long, costs too much, and the process is unintelligible to ordinary people. The broad case for change is self-evident – in varying degrees, the court systems of our world are inaccessible to the great majority of human beings. There are two broad ways that change can be affected in a court system. The first is evolutionary and incremental, and involves improving the current system, in part by introducing new efficiencies and partly by securing greater state funding. By and large, this is the tack preferred by most judges and lawyers. Their refrain is
that the basic system is well-tested and well-proven, there are clear opportunities for running a much tighter ship, and it is a scandal that today’s courts are so poorly resourced. The second type of change to a court system is radical and requires the current set-up or great parts of it to be superseded swiftly rather than improved over time. If technologies are involved, they should bring transformation, rather than simply automating conventional processes. This view is shared by a growing number of activists, within and beyond the legal profession, who are arguing for radical change, claiming that today’s system is irretrievably broken or unfit for purpose. To put my cards on the table, I am much nearer the radical end. I expect the transformation to be incremental and ongoing but I fall short of being a full-on, fully-bearded revolutionary. During my first decade of working in
Photo: Dem10/iStock
For many people across the world, it is easier to find an internet connection than a lawyer. Could online courts revolutionise justice in 2020? Or is the legal profession not ready for trial by robot? RICHARD SUSSKIND writes.
OPINION
legal guidance. And we now have more than 2,000 legal technology start-ups around the world (there were fewer than 200 but five years ago), many of which are focused precisely on extending the range of legal tasks that systems can take on. More generally, some entrepreneurs aspire to do to legal work what Amazon has done to bookselling. We live in an age when we are greatly enhancing our capacity to process information. It is not outrageous to claim that the work of judges and courts is unlikely to emerge unscathed. Today’s courts were designed for a different epoch.
technology in law, from the early 1980s to the early 1990s, online courts and online dispute resolution were in no-one’s contemplation, because the web had not yet been invented. In that period, people of a practical inclination spoke of, wrote of and developed systems in support of court administration while those interested in the future speculated, largely in the spirit of science fiction, about whether it might be possible for AI to replace judges and whether that might be a good thing. Now scarcely a day passes that we are assailed by news of some new innovation, technology, advance, breakthrough or app. Our systems are able to do more and more. In the practice of law, for example, often at a higher standard than junior lawyers, we now have systems that can draft documents, undertake due diligence work, isolate the most relevant documents from litigation bundles, predict the outcomes of deals and disputes, and offer
“We live in an age when we are greatly enhancing our capacity to process information. It is not outrageous to claim that the work of judges and courts is unlikely to emerge unscathed.�
Commentators and practitioners often insist that much of the work of lawyers is beyond the reach of technology. They will suggest, for example, and not unreasonably, that the work of court lawyers cannot be replaced by machines. How could a robot possibly appear as an advocate before a judge? The answer of course is that we are nowhere near this happening. But the
story does not end here, as we are asking and answering the wrong question. Mistakenly, they are focusing on current ways of working rather than on whether the outcomes that court lawyers deliver might be achieved in very different ways. Online courts are a different idea altogether. Online judging takes away much that many hold dear – the public hearing, the day in court, the direct interaction with other human beings. On the other hand, it is likely to make court service much more accessible and affordable and will chime with those who cannot recall a pre-internet world. The second sense of online court is more general. The idea here is that technology allows us to provide a service with a much wider remit than the traditional court. The additional services include tools to help users to understand their rights, duties, and options to them, facilities that assist litigants to marshal their evidence and formulate their arguments, and systems that advise on or bring about non-judicial settlement. I accept that the radical change being brought by technology is unsettling and sometimes worse. Concerned parents and disillusioned students often ask me how I feel about a world in which the traditional work of lawyers and judges may be, as they see it, under siege. I take a different view. I believe it is a privilege to be alive at this time of unprecedented change, at a time when young legal professionals, along with their senior colleagues, can play a central role in shaping tomorrow’s legal profession and court systems. I go further and say it is the duty of all lawyers and judges to be involved. Professor Richard Susskind OBE is an author, speaker, and independent adviser to major professional firms and to national governments.
Online Courts and the Future of Justice is available online through Amazon, Booktopia and as an e-book through Dymocks. This is an edited extract.
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COVER STORY
Hanoi, Vietnam
Sydney Australia
Shanghai, China
Yogyakarta, Indonesia
Auckland, New Zealand Singapore CBD, Singapore
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Beijing, China Bangkok, Thailand
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Seoul, South Korea
Photos (top row from lef t to right): RugliG/iStock; Chriss73/iStock; Wonseok Jang/iStock; Joshua Tsoi/iStock; Raditya/iStock; Sajad Hameed/iStock; Chameleon Pictures/iStock; Soya Yuxuan Songyang/iStock; Suprabhat Dutta/iStock; Foocw/iStock; Norbert Braun/iStock; K Neville/iStock
Baramulla, India administered Kashmir
Kolkata, India Flight from Colombo, Sri Lanka to Heathrow, London
A whole new world
Will biosecurity laws get us through this pandemic? AMY DALE writes on how the Asia Pacific response could be the blueprint for the current crisis, and how lawyers are best placed to help rebuild the post-coronavirus world. M AY 2 0 2 0
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n the 1980s, as part of a suite of experiments to unpack the mysteries of winter aches and sniffles, the Medical Research Council’s Common Cold Unit in the United Kingdom recruited volunteers for a simple test. One volunteer was selected to be fitted with a device that leaked an invisible thin fluid – similar to a runny nose – that, under UV light, would show a dye pattern that tracked its spread. The person was then asked to socialise with other volunteers in a manner typical of a cocktail party. That involved standing close to other guests, shaking hands, maybe even hugging one or two people. The staged party ended, and the room was drenched in UV light. After a few hours, one could see that the dye was everywhere, including on the hands, heads and bodies of volunteers whom ‘patient zero’ did not touch. Conducted years before the world became so intrinsically linked and connected through the ease of air travel, it today seems a perfect metaphor for the global spread of the Coronavirus. The beginning of this story is known to all: in December 2019, a novel coronavirus strain was detected in a wet market featuring wild animal trade in Wuhan, China, leading to an outbreak of a new respiratory illness where patients presented with symptoms similar to pneumonia. Within weeks, confirmation emerged of community transmission. And, just like the liquid spread at the party, this initial case has grown to more than two million cases worldwide. So far, there has been more than 250,000 deaths. More than a third of the world’s population is presently living under some form of lockdown conditions. It has brought entire industries to their knees, induced eye watering government spending packages in the wake of mass job losses, and seen British Prime Minister Boris Johnson placed on oxygen in a London intensive care unit. The Tokyo Olympics has been postponed, alongside a score of other major events. Jury trials in many jurisdictions, including Australian courtrooms, have been temporarily suspended. Asia Pacific has so far outperformed its European and North American counterparts in responding to the virus. Much of this is due to hard lockdown restrictions with punitive measures for non-compliance, the rapid shutting down of borders, and the enactment of tougher biosecurity and quarantine powers to effectively seal countries off and order citizens to stay at home unless they have “essential” reasons like procuring food or medicine. Until a vaccine is developed, these measures appear our best chance of saving the world from millions of fatalities. 22
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It is likely that for the rest of 2020 global travel will remain at a standstill, workplaces will remain closed with staff conducting all duties from home, and courtrooms the world over will be forced to adopt online and virtual ways of dispensing justice. It also means enforcing biosecurity laws is one of the strongest forms of epidemic control available until widespread vaccination is possible. These laws may also assist policymakers lumped with the unenviable task of determining how, and in what phases, the restrictions can ease. It is a tricky predicament. The pandemic most often referenced
↖ Emergency hospital in Kansas, USA, during the 1918 flu pandemic, commonly known as the Spanish. ↑ Alternate care facility for patients suffering from COVID-19 in Kentucky, USA. → Patient being measured with a temperature gun.
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in responding to today’s crisis is the Spanish Flu outbreak of 1918. The deadliest surge of that illness was during its second wave, when restrictions in place from a relatively mild first stage were lifted, based on a false sense of security that the strain had been contained.
A biosecurity emergency
In Australia, unprecedented powers granted to government that are triggered by the little-known Biosecurity Act 2015 (Cth) have worked hand-in-glove with public health orders and the capabilities of state and territory governments. It is a necessary marriage – imposing travel restrictions to date appears the most effective way of stopping the Coronavirus from mass spreading, with public health measures including high levels of testing and tracing and isolating close contacts of positive cases then doing its part to stop troublesome community transmission. Both Australia and New Zealand declared emergencies under their own Biosecurity Acts when their patient numbers were low, granting extraordinary powers to authorities in a race against the clock to slow the virus in its tracks. In Australia, this included making the powers available to the Health Minister
under the Biosecurity Act a form of ‘Henry VIII provision’ (delegated legislation that prevails over primary legislation). The Act allows for the making of a “human biosecurity control order” that impedes an individual to do or not do certain things. In January, when less than five positive cases of COVID-19 had been recorded in Australia, these would have seemed unfathomable. Now the rules – like ordering an individual to remain under guard inside a hotel room for two weeks upon arrival in the country, or forcing them to provide government authorities with their health status and remain in their place of residence for a specified time or face criminal charges – are embedded in daily life. New Zealand Prime Minister Jacinda Ardern introduced the lockdown when the nation of just under five million people had around 200 confirmed or probable cases. The country also took steps to ban international flights, all cruise ship entries until at least 30 June, and two-week quarantine requirements for all returning residents days before other nations followed suit. “When we have situations that are unprecedented, New Zealanders work together,” Ardern said. “We don’t want to be Italy … we are asking [New Zealanders] to work together, with a little distance between you.”
Photos (from top to bottom): National Museum of Health and Medicine/Wikimedia Commons; Dale Greer for the National Guard/Flickr; Halfpoint/iStock
“The pandemic most often referenced in responding to today's crisis is the Spanish Flu outbreak of 1918. The deadliest surge of that illness was during its second wave, when restrictions were lifted ...” The global first responders
Of the more than 185 countries affected by cases of COVID-19, Asia Pacific has positioned itself as the best responders. From China’s containment to rapid and mass testing in South Korea, Japan and Singapore and strict social distancing rules and border closures in Australia and New Zealand, the numbers – while tragic – have not hit the crisis point of Europe and North America. The likeliness of renewed outbreak was foreshadowed by researchers at Hong Kong University in 2007, in the aftermath of SARS-Cov, one of two previous manifestations of the coronavirus (the other was the MERS-Cov, which struck the Middle East with devastating impact in 2009). SARS had been
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initially traced to the consumption of live exotic animals, like bats. The university’s research paper suggested the virus could return if the conditions were suitable for its “introduction, mutation, amplification and transmission”. The researchers closed their paper with this warning: “The possibility of the re-emergence of SARS and other novel viruses from animals or laboratories and therefore the need for preparedness should not be ignored. The presence of a large reservoir of SARS-COV like viruses in horseshoe bats, together with the culture of eating exotic mammals in southern China, is a time bomb.” As the initial source of infection, China’s response to the outbreak has become the roadmap for other nations. Its statistics, terrifying to the world in the early days of the new decade, soon dwarfed in comparison to the devastation and unfathomable losses suffered in the United States, Italy and Spain. China has also stepped in to assist Italy and New York with a supply of ventilators and face masks, when the two areas, crippling under the spike of cases, struggled to receive assistance from neighbouring countries or, in New York’s case, from the White House, which described its stockpile of life-saving equipment as “our stockpile, not the states’ stockpiles”. 24
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As COVID-19 tore through the nation, China imposed a temporary nationwide ban on all terrestrial wild animal commerce and consumption, which includes exotic species raised on farms. It also announced plans to immediately pass tougher biosecurity laws, which included merging the portfolio with national security. Among the most successful early public heath interventions was shutting down large public gatherings and entertainment venues, as well as suspending public transport.
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↖ Square located in the Chinese province of Liaoning. The words on the pillars mean COME ON WUHAN! ↙ Medical aid teams return home from Wuhan. ↓ WHO's senior advisor Bruce Aylward.
“China has demonstrated the feasibility of a short lockdown followed by phased lifting of restrictions,” said Dr Raina McIntrye of the Kirby Institute in March. “Modelling shows that the greatest impact on the epidemic will be with the most severe of social distancing measures (such as lockdown), combined with enhanced testing and quarantine. The argument that such measures need to be long term [between six to 12 months] is incorrect. “A comprehensive lockdown also buys time to scale-up required testing, capacity for rapid case identification and isolation, and for thorough tracking and quarantine of contacts … aided by novel smart phone apps and related technologies, as deployed with great success in South Korea.” The World Health Organisation’s (WHO) senior advisor Bruce Aylward says “speed is everything”, estimating aggressive Chinese government lockdown orders likely assisted nearby provinces to prepare and stem their own outbreaks, preventing hundreds of thousands of new cases. Aylward was part of a WHO factfinding mission to China in February and said the nation had “actually changed the course of a respiratory-borne outbreak without a vaccine, which is extraordinary”. He also noted a continued capacity building, even with a falling case rate, to stay ahead of the curve. In contrast, Europe and the US appear to be struggling as cases and fatalities surge.
“The important thing is looking forward,” Aylward told National Public Radio. “You’ve seen the potential [for the Coronavirus] to spread for weeks and you need plans to be able to isolate dozens, if not hundreds, of people, to be able to trace.” In the absence of stopping the spread altogether, Aylward says the intention has been to slow it down enough to protect vulnerable populations. In March, China began easing restrictions after recording days of very low or no new infections. However, when a spike reoccurred following a relaxing of the borders, tougher quarantine and international restrictions were swiftly reinstated. Debate remains over how – and whether – to reopen the nation’s wet markets in coming months. Vietnam announced plans to follow suit by strengthening its laws relating to wildlife trade in light of the pandemic. While WHO remains neutral on the issue of reopening wet markets, China’s Asia Pacific neighbours appear troubled at the suggestion. Both Australian Prime Minister Scott Morrison and Health Minister Greg Hunt say it is “unfathomable” that vendors should recommence selling live animals among its fresh food and other produce.
The need for cruise control
Biosecurity law has faced its toughest challenge when it comes to decision-making regarding cruises, where outbreaks of the virus have spread with breakneck
Photos (from top to bottom): Jean-Marc Ferré for the UN/Flickr; Zhiqian Hou/iStock
“Of the more than 185 countries affected by cases of COVID-19, Asia Pacific has positioned itself as the best responders ... China's response to the outbreak has become the roadmap for other nations.” speed and ferocity. Holidaymakers in far f lung corners of the world, from Uruguay to Japan, now find themselves facing weeks aboard as the passenger infection rate soars. Donald Rothwell, professor of international law at the Australian National University says both governments and the cruise industry are facing an “unprecedented situation.” “There really is no instance since the Second World War where ports have closed simultaneously, with so many people out to sea. There was then very little time to consider how we repatriate citizens who are currently on cruise ships around the world.” For weeks, the Diamond Princess cruise, moored
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“Now we are all in this together and we must take advantage of that, and work on improving outcomes for all of our people.” – Professor Edward J Blakely
in the Japanese port city of Yokohama, was given its own title and ranking near the top of the global list of COVID-19 cases, with more than 700 confirmed infections. The deadly outbreak and bureaucratic nightmare that surrounded the docking of the Ruby Princess cruise ship, which allowed more than 3,000 passengers to disembark under the cover of darkness in Sydney at 2am on 19 March – without being tested for the virus in spite of numerous passengers displaying symptoms – is now the subject of a major criminal investigation. A month later, the cruise cluster, which is believed to have originated from an infected crew member distributing food and drinks, has been responsible for 18 deaths and more than 600 cases. “We need to be cautious in jumping to conclusions about criticising passengers on the cruise for not presenting themselves to sick bay,” Rothwell says In the case of the Ruby Princess, it is estimated that as many as five Commonwealth and state agencies were involved, as well as the cruise’s operator Carnival Cruises. Tyrone Kirchengast, Professor of Law at the University of Sydney, notes the ambiguity around where quarantine laws intersect with public health orders, which in Australia operate under state and territory governments. “There has been some uncertainty as to who has jurisdiction,” he says. “When it comes to marine ports, those are a commonwealth issue. Cruise ships have always presented a risky business, and respiratory illnesses are often reported.”
Remote justice
Dispensing justice is not traditionally an online domain, and a system that has relied so heavily on paper files, coupled with extensive delays across a number of jurisdictions, is no doubt straining under the pressure. Australian barrister and founder of online mediation platform Immediation Laura Keily describes the rapid and necessary transformation of the courts to move matters online, or to hear them away from the hallowed courtroom walls, as “blunt force trauma” to the profession. “Now that there are no other options [other than to move to remote hearings], it has forced the conversion to the online market,” Keily says. “[We 26
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have] condensed 10 years into two months, which is incredibly traumatic and difficult, but it does mean there is an ability to use these platforms and the judiciary will be able to see the benefits.” Keily says there is a need for practitioners to use a specialist legal tool, and not just rely on “free-for-all video conference calls”, and that judges must feel comfortable with using them. “Under these circumstances it has now come to the forefront,” she says. “Online dispute resolution platforms have a utility and they can be of great benefit to the judiciary.” She describes the previous resistance to moving matters online as “technology trauma” and a desire by the judiciary to protect the sacrosanctity of the in-court appearance. “The restriction of in-person matters is being added to an already existing backlog of cases,” Keily says. Unlike Australia, China had already introduced online courts in 2017, and expanded them in 2018, so was well-placed to transition once the lockdown began. A statement from the Supreme People’s Court of China said: “Considering that the epidemic may last for some time, the Supreme People’s Court, the country’s top court, ordered courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems for litigation, including those for case filing and ruling delivery, to ensure litigants and their lawyers get better legal services and protection.” In another case, an app, whose title translates as “trial in the cloud” helped to successfully resolve a private loan dispute. Mobile micro court, through the use of prolific Chinese social media platform WeChat, has also been used in a number of cases. England and Wales are reportedly trying to rush a court reform Bill, which could include instances of video witnesses in cases where parties are affected by COVID-19, through Parliament in coming weeks. Clearly, though, virtual courtrooms cannot accommodate members of the public, and the concept of ‘open justice’ takes a backseat to ‘functional justice’. And the rapid shutting down of jury trials in some states – in a bid to slow the number of people entering court complexes every day – has some concerned. Pauline Wright, President of the Law Council of
COVER STORY
Australia, is concerned about both the restriction on jury trials as well as broader draconian social distancing measures. “Powers under the Biosecurity Act are extraordinary and must be approached with the utmost caution, and should only be used as a last resort,� Wright says. “The exceptional powers under the Act do not have the types of safeguards and independent oversight protections afforded to our law enforcement and security agencies’ exercise of coercive powers. “While control orders in cases of infectious disease may be justified, there is no requirement for a person to actually be infected, or for the officer to even reasonable believe or suspect that the person is infected, or may be infected, with a [listed human disease], before a control order can be made.� Of jury trials, Wright says: “In these uncertain times it is more critical than ever that Australia upholds the administration of justice. We strongly believe that the right to a fair trial by jury must continue to be observed unless the accused consents to a judge-alone trial.�
Photo: Gahsoon/iStock
Law in the time of Corona ↑ Self-isolation has become embedded in daily life, to prevent the possible spread of the virus.
Professor Edward J Blakely is nicknamed the “Master of Disaster� after headlining the response to dual catastrophes – a fire and earthquake – in Oakland, California in the late 1980s, the September 11 terror attacks in New York City, Hurricane Katrina in New Orleans in 2005, and the Japanese tsunami and earthquake in 2011.
He believes the lessons learned in rebuilding from natural disasters apply to this unprecedented public health scenario – and that lawyers are best placed to lead this “repurposing�. “Lawyers are best placed and most accustomed to working with people to find answers to disputes,� he says. “Why lawyers? One of the skills lawyers have is not just trying to resolve, but also finding insight into problems. We can help bring the right outcome and assist local government. In doing that, we can allow people to feel safer and more secure. We can decode the regulation and simplify the codes. “Right now, we really are writing the codes for the future. And we can marshal our skills and do a hell of a lot more with the courts. They are learning to adapt to the online world.� He points to the pivot of New Orleans in the wake of Hurricane Katrina to turn their chief source of income from tourism to biomedicine. “We must position ourselves for a radically different future,� Blakely says. “It is hard to see a future where everyone is working every single day in the office, or that people on public transport will be travelling without a mask.� He also believes the post-pandemic world will see a renewed focus on social justice. “Typically, disasters can affect people socio-economically,� Blakely says. “This pandemic is different. Now we are all in this together and we must take advantage of that, and work on improving outcomes for all of us.�
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Photo: Narvikk/iStock
F E AT U R E
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F E AT U R E
A HUMAN RIGHTS DISASTER LOST IN THE DARK Possibly no nation in the world operates with greater secrecy than North Korea. Two defectors speak with KATE ALLMAN to shine light on the dark state of affairs in their country.
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F E AT U R E
atellite images taken from space of North Korea at night show a country swathed in darkness. The black space signifies a nation cut off from the world as a result of international trading sanctions, tenaciously guarded borders, and the threat of nuclear war. The northern side of the Korean peninsula has – both literally and figuratively – been left in the dark since the Korean War Armistice in 1953. The darkness can be blamed on electricity shortages plaguing an isolated nation lacking the wealth or industry to light its cities. This is blindingly apparent next to the sea of electric splashes coming from South Korea, the seventh most prosperous economy in the world with a gross domestic product (GDP) estimated at US$1.4 trillion by the International Monetary Fund. North Korea’s GDP is closer to US$40 billion, with a per-capita GDP lagging behind developing countries like Myanmar and Bangladesh. But the darkness also hides an array of human rights abuses occurring under the noses of the international community. North Korean defector, author and peace activist Hyeonseo Lee shines light on some of these abuses in her bestselling biography The Girl With Seven Names. Her book, which she has also presented as a TED talk viewed more than 13 million times online, paints a harrowing picture of fear, indoctrination, bribery, propaganda, starvation and disappearances of North Korean citizens under the communist regime. Lee witnessed the first of many public executions when she was just seven years old. When she was 14, her stepfather was accused of treachery and tortured to within inches of his life by the bowibu – the secret police and agents of Kim Il-sung (then Supreme Leader of North Korea and the grandfather of current Leader Kim Jong-un). When Lee’s stepfather was finally released to hospital, he took his own life. “Very little do international citizens know about ordinary people surviving in North Korea,” Lee tells 30
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me during a private interview in Seoul, where she has lived as a political refugee since 2008. She explains how the plight of North Koreans, who she refers to as the “forgotten people”, is overshadowed in world news by military displays of force, nuclear weapons tests, or photos of Kim Jong-un riding white horses through snow. Or, in 2019, the unprecedented meeting between Kim Jong-un and US President Donald Trump at the demilitarized zone (DMZ). “It’s like the allegory of a cave,” Lee continues. “The North Korean people have no power to deliver messages to the world. They have no voice. The world only knows what their dictator tells us – about political and military issues.”
“[NORTH KOREANS] CAN’T EVEN KNOW THAT THEIR HUMAN RIGHTS ARE BEING VIOLATED – BECAUSE THEY DON’T KNOW WHAT HUMAN RIGHTS ARE.” – Hyeonseo Lee, North Korean defector, peace activist, and author of The Girl With Seven Names.
Life in the dark
North Korea was known as the “hermit Kingdom” even before the Japanese occupation that preceded the Korean War. It developed as an ancient and obscure culture whose people kept to themselves. But this secretive nation’s retreat into its shell has been propelled by the totalitarian rule of the “Kim” regime (the succession dictators Kim Il-sung, Kim Jong-il and Kim Jong-un) since it was artificially cleaved in two during the Korean War. Only recently have defectors such as Lee begun to shine a light on the darkness north of the border. Lee’s cave allegory is apt. North Koreans have no access to the internet. Four state-owned television stations broadcast “news” promoting the communist regime’s ideologies. Twelve newspapers and 20 major periodicals are all published in the capital of Pyongyang by trusted officials in Kim Jong-un’s
The Girl With Seven Names by Hyeonseo Lee
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Photo: NASA/Wikimedia Commons
↙ PYONGYANG
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Workers’ Party. This state media managed to convince Lee that her childhood in “the greatest nation on earth” was blessed, while citizens in South Korea and America (“yankee bastards”) were suffering and deprived. This was even as she witnessed whole families starving to death in the streets during the 1990s. Her book also explains the black space representing North Korea on satellite images: blackouts occurred most nights, and electricity was a rare luxury. Today in Seoul, Lee has addressed hundreds of lawyers at the 2019 International Bar Association (IBA) Conference about the dearth of human rights or legal protections in her birth nation. Her opening sentence speaks volumes. “This is more lawyers than I have ever seen!” she exclaims to the auditorium. “Before I left North Korea I had never heard of a lawyer – I didn’t even know they existed.” Even after 10 years and seven name changes to escape the North Korean regime, Lee is covert about 32
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the interview she has granted me following her speech. Security guards wave metal detectors over me, then guard the door as we chat in a private meeting room with no windows. The Kim regime has openly denounced Lee as an enemy of the state and speaking with an Australian journalist for a legal magazine is a risk, even in South Korea. When I ask Lee what human rights are being violated in North Korea, she responds in a hiss. It’s as if Kim Jong-un himself could be listening. “Everything!” she whispers. “In North Korea you are deprived of freedom of speech, religion, food, movement, water, everything. Even breathing the air is considered a gift from the Supreme Leader. “In the north, people have no concept of human rights. People are so scared of having any opinion, and there is no access to information from the outside world, so people don’t know they are oppressed. They can’t even know that their human rights are being violated – because they don’t know what human rights are.”
↑ Portraits of Kim Il Sung and Kim Jong-Il overlooking students inside the Grand People's Study House in Pyongyang.
Photos (from top to bottom): Alex Kuehni /iStock; Kate Allman/LSJ
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What little we know
Between 2013 and 2014, the UN Human Rights Council led a commission of inquiry into human rights violations in North Korea. North Korea refused to participate in the hearings, but 80 defectors, refugees, and abductees publicly testified to the committee. A further 240 witnesses gave evidence via confidential interviews to protect them and their families from retaliation by the Kim regime. The resulting Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea declared evidence of “systematic, widespread and grave human rights violations”, as well as “a disturbing array of crimes against humanity”. Former Australian High Court judge Michael Kirby chaired the inquiry and presented its findings to the UN Human Rights Council in 2014. He likened the horrors of the North Korean regime to the atrocities of the Nazis, apartheid and the Khmer Rouge.
“Extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence … The gravity, scale, duration and nature of the unspeakable atrocities committed in the country reveal a totalitarian state that does not have any parallel in the contemporary world,” Kirby told the Human Rights Council. During daylight hours, Google Earth shows what appear to be prison camps, in the same location and as described by North Koreans who testified to the UN. The Korea Institute for National Unification has estimated that there are between 80,000 and 120,000 people imprisoned in those camps. Judge Thomas Buergenthal, a survivor of Auschwitz who served on the bench of the International Court of Justice and in 2017 sat on the bench of an IBA inquiry into North Korea, concluded that the conditions of those prison camps are “as terrible, or even worse” than the Nazi concentration camps he experienced during the Holocaust.
“I WANT TO ASK THE WORLD COMMUNITY OF LAWYERS TO DO SOMETHING TO IMPROVE THE SITUATION OF NORTH KOREA ... THE LEGAL COMMUNITY OF THE WORLD CAN LET THE NORTH KOREAN PEOPLE KNOW THAT THE WORLD IS TRYING ...” – Thae Yong-Ho, former North Korean ambassador to London and highest-ranking diplomat to defect (pictured below).
North Korea has denied their existence and rejected the findings of the UN commission of inquiry. It has also refused to allow amnesty groups and UN officials inside its borders to disprove them.
Escaping a lawless state
One of North Korea’s most high-profile defectors, former deputy ambassador to the United Kingdom Thae Yong-Ho, describes the dubious legal process North Korean citizens are afforded before being sent to prison camps. “If, by accident, you kill someone by car, you would be brought to trial and have an opportunity to defend yourself,” explains Thae. “But if you do or say something – anything – against the system and
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the Leader … For example, if you were drunk and told your friend, ‘Kim Jong is a son of a bitch!’, the secret police might find out. Then there would be no trial. You would be arrested and sent to the prison camps.” Thae is the highest-ranking North Korean diplomat to defect. He has granted me an interview at great risk to himself, his wife and two sons, who all made their daring escape to the South Korean embassy while he was posted in London in 2016. A team of bodyguards pat me down and check my bag to ensure I carry only the agreed-upon notepad, pen and iPhone. They eventually wave me inside the interview room, where a man in a low-brimmed hat, long coat and dark glasses begins to dismantle his disguise. It is Thae. “In South Korea there are many North Korean spies and agents,” he says. “I’m number one on the North Korean assassination list. My family and children are protected by bodyguards 24 hours a day. Whenever I travel, I wear a cap and sunglasses. I like living in the free world, but I am not totally free at all.” Thae is certain he would be killed if he returned to North Korea while the Kim regime rules. He explains that travel to the country, even by non-partisan tourists, is highly dangerous. The most recent example of this occurred when Australian student Alex Sigley, who had been organising state-sanctioned tourism to North Korea under his company Tongil Tours, was arrested and vanished suddenly in 34
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June 2019. Sigley was released one month later and returned to Australia but has refused to answer any questions about his arrest. US student Otto Warmbier, who visited in 2016, was not so lucky. The 21 year old was arrested and held hostage for 18 months. When North Korea eventually released him, he was flown home in a coma with unexplained brain damage. He died without regaining consciousness. “I still have a lot of nightmares about what has happened to my sister and my brother, even my friends, back in North Korea after my defection,” Thae says. “My ambassador, he used to be my good friend. He was called back to Pyongyang and he just vanished. Like steam in the air.” If a regime headquartered in Pyongyang – just 200 kilometres north of where we are speaking in Seoul – wields such power, why would Thae put himself at risk by publicly denouncing it to a magazine read by lawyers? “I want to ask the world community of lawyers to do something to improve the situation of North Korea,” he says. “Every year in December in Geneva, the United Nations adopts the resolution on North Korean human rights. I think if the world continues to do it again and again and again, the legal community of the world can let the North Korean people know that the world is trying, that they are not neglected.”
↑ Drawings by Kwon Hyo Jin, Submitted to the commission of inquiry by former prisoner Mr Kim Kwang-il.
Drawings: UN Human Rights Council
“THE GRAVITY, SCALE, DURATION AND NATURE OF THE UNSPEAK
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ABLE ATROCITIES COMMITTED ... REVEAL A TOTALITARIAN STATE ...� – Former Australian High Court judge Michael Kirby.
An end in sight?
Many North Koreans believed that the death of the first Leader Kim Il-sung in 1994 would lead to the communist regime’s collapse. But when he died of a heart attack aged 82, his son Kim Jong-il took over and the regime continued. When Kim Jong-il passed away in 2011, his son Kim Jong-un succeeded him. It’s why Thae ultimately decided to defect – to free his family from the tyranny that could go on for decades. “As a father, I thought it would be a crime to force my children to go back to Pyongyang. I decided I should cut off the slavery at my point,� Thae explains. Both Thae and Lee say it is difficult to imagine an end to the totalitarian regime, when current generations have never seen or experienced an alternative. They believe the Kim dynasty will ultimately be toppled by a lack of money and resources, but neither can put a timeframe on that demise. “Last year, countries were all talking about putting pressure on North Korea and I hoped that the regime would collapse,� Lee says, indicating the new sanctions that US President Trump and South Korean President Moon Jae-in imposed on North Korea in 2018. “But right now, it seems like we are giving more power to the North Korean dictator, so I am unsure. The summit that President Trump and Kim Jong-un
held seemed to legitimise his system. I really hated seeing that.� Many human rights groups oppose economic sanctions, warning that they cause suffering and starvation for North Korean people. But Lee believes the sanctions can force a decline in state income, and will be a key factor in the demise of the totalitarian system. Besides, she says, most North Korean people have already stopped relying on government jobs and rations. Her book describes how ordinary citizens have developed creative ways to smuggle and trade goods on the black market via corrupt officials. It’s one of the biggest ironies in the communist state: American dollars have become the most valuable commodity. Both Lee and Thae long for a future in which they can return to their hometowns and be reunited with friends and family. Until then, Lee has an emotional message for the North Korean people. “I don’t know when we can be united or when I can meet them again, the North Korean people. All I can hope is they are not dying,� she says. “There is not any message of strength or bravery that I want to send. Other than to stay alive. Just stay alive. In North Korea, there is nothing more important.� Kate Allman is a journalist, multimedia producer and the online editor for the Law Society of NSW Journal.
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fight for equality The
Photo: Taylor Nicole/Unsplash
in law firms
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When it comes to LGBTQI rights across Asia Pacific, lawyers are at the frontline for change. But many lawyers who are themselves part of the LGBTQI community continue to experience distress and discrimination at work. FLOYD ALEXANDER-HUNT and CLAIRE CHAFFEY speak to four Australian LGBTQI lawyers about their experiences in the wake of the country's divisive marriage equality debate. M AY 2 0 2 0
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“I wouldn’t give that fag any matters. I don’t want him exposed to my clients.” These words weren’t spoken directly to Joe Catanzariti’s face, but they were said. They came back to him via someone who was willing to let him know the awful things a colleague – someone he thought was a friend – was saying behind his back. “It was very distressing,” says a pensive Catanzariti over coffee. “I still can’t understand how, having worked for my colleagues’ clients for the previous 10 years, my coming out changed all that and I was now perceived as less of a lawyer.” Catanzariti was 39 years old and married with three children when it dawned on him that something wasn’t quite right – that something was wrong. Growing up in a poor, conservative, immigrant family, he was incredibly naïve, he says, and disconnected from who he really was. He embarked on a journey of self-discovery, which eventually led to the realisation he was gay. He left his marriage and changed the course of his life. It was wonderful and terrible all at once – and it changed the way he was treated at work. “My choice was to go in with all guns blazing,” he says of his decision to come out to his colleagues at the law firm where he was a partner. “I decided I wasn’t going to be subject to any blackmail or office corridor gossip. I made a very public outing at the firm. And then it began.” “It”, explains Catanzariti, who is now Vice President of the Australian Fair Work Commission and Co-Chair of the International Bar Association’s LGBTQI Committee, was a struggle he is still fighting today – one for genuine equality and a better understanding within law firms that someone’s sexuality should not negatively impact how they are viewed or treated. “We have to talk about it. It is a real problem,” he says. “I know there are partners who will say the things everyone wants to hear, but in the coffee shop they will comment on a person’s sexuality in an offensive manner. I have heard very senior people, not knowing my sexuality, making terrible comments. You would think we have gotten beyond this, but we haven’t.”
Life after marriage equality
Grace Wilkie holds back tears as she ref lects on the 2017 Australian marriage equality debate – and they’re not tears of joy. 38
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The commercial litigator, who now works full time for the Australian Financial Complaints Authority, identifies as a lesbian. And while the fact that marriage equality is now law in Australia is hugely satisfying, the road to get there has taken its toll. “Marriage equality happened, and it was a massive celebration and win, but immediately afterwards you had the fallout of people’s mental health. I know my partner experienced the very bad effects of what people were saying. “Sorry,” she says, choking up, “I still find it upsetting.” Wilkie says the impact of the Government’s postal vote has lingered, and that the debate allowed those opposed to marriage equality to rally into a more vocal, solidified movement. “Now we’re getting things like the Religious Discrimination Bill almost as a recoil of that progress we made,” she says. Wilkie’s experience is not an isolated one. Nicholas Stewart, a member of the Law Society of New South Wales’ Diversity and Inclusion Committee and a partner at Dowson Turco Lawyers in Sydney – a firm specialising in LGBTQI issues – was also deeply affected by the drawn-out process. “It caused a lot of distress for the gay and lesbian community. When your sexuality is made the subject of a political fight, it can be really hurtful,” he says. “We can’t control our sexuality, and hearing particular conservatives say things which suggest we should retreat to our closets is painful.”
“I still can't understand how, having worked for my colleagues’ clients for the previous 10 years, my coming out changed all that and I was now perceived as less of a lawyer.” – Joe Catanzariti
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“I've heard of instances where firms have pushed back on some events that were LGBTQI-focused, saying they didn't want to invite clients because they didn't want to be viewed as a ‘gay’ law firm.” – Grace Wilkie
Catanzariti says those who are not part of the LGBTQI community often don’t understand that, while there has been progression, many still experience distress, discrimination, and other issues inside and outside the workplace. “It is nonsense to say law firms now have diversity committees and everything’s [fine],” he says. “I spent 30 years at the large end of town. Everyone rightly accepts there must be recognition and equality for women lawyers and steps taken to ensure it occurs, but when it comes to the under-the-radar diversity, the LGBTQI issue, that’s more problematic.” While Wilkie says her experience of being a gay woman in the workplace has been “mostly positive”, she knows many for whom that has not been the case. “I know there are some major struggles in some of the bigger law firms. It can sometimes be openly homophobic,” she says. “I’ve heard of instances where firms have pushed back on some events that were LGBTQI-focused, saying they didn’t want to invite clients because they didn’t want to be viewed as a ‘gay’ law firm. It’s quite demoralising to know there are still pockets of these firms out there.” Stewart, too, recounts negative experiences. “Sometimes it’s been really awful. I’ve come across people in the courts who are homophobic,” he says. “I’m not someone to dwell on things, but it does
remind you sometimes of how you are different. I think a lot of us were naïve to think gay marriage would make it an even playing field.”
Understanding the issues at work
When it comes to LGBTQI inclusivity in the workplace, statistics show law firms lag behind their professional counterparts. In 2019, only two law firms – Clayton Utz and MinterEllison – achieved gold-tier recognition in the Australian Workplace Equality Index (the self-described “definitive national benchmark on LGBTQ workplace inclusion”). On average, banking, consulting and government agencies ranked a lot higher than law firms. Stewart says meaningful conversations are key when it comes to building understanding of the issues and challenges many LGBTQI people face daily. “Any gay person will tell you that when it comes to public displays of affection, we often censor ourselves,” says Stewart. “Even in my apartment block, if someone gets into the lift, my partner and I automatically pretend we’re friends, because you just don’t know how our affection will be received. “We just want people to be understanding that there are some who don’t agree with us, and sometimes we are at risk of harassment or discrimination or violence.” Wilkie agrees much of the discrimination and hostility could be eliminated if people simply had more open conversations. She’s had plenty of them, with mostly positive outcomes. “I’ve experienced curiosity more than anything. People asking, ‘Hey, what’s it all about? When did you know you were gay? How long have you and your partner been together?’ I’ve been very lucky and had quite good experiences,” she says. “It’s about trying not to take other people’s lack of knowledge personally. Sometimes the questions can be a bit insensitive, like ‘How does it work? How does the dynamic work? Don’t you want to have kids?’ Those are just conversations you have to have, because people want to know.” It is also important, says Wilkie, for law firms to be proactive in facilitating educational opportunities. “Hold events where people come from different elements of the community – trans, lesbian, gay, intersex – and educate,” she says. “Once the fear of the unknown is taken out of it, people go about their business and realise nothing’s impacting them. More of that is probably required to really dig deep and uproot those last vestiges of oppression.”
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A new generation
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“Major legal organisations are actually making an effort ... I don't have to be this super-straight-acting, low-voice, movie archetype that I grew up watching.” – Rhian Mordaunt Photo: Fang Xia Nuo/iStock
Rhian Mordaunt, a law student at the University of Sydney, was terrified at the prospect of entering law school as a gay man of colour. He didn’t think he would fit the mould of what lawyers look like and how they should behave. “I remember being nervous going into law school, I guess because of what you see on movies and TV. It’s a lot of white, straight guys with briefcases and really intense suits and lower voices,” he says. “So I practised how to speak business-like – I literally bought a TED talk book about how to speak professionally, because I assumed that’s what the legal profession would be like.” Things didn’t turn out as expected, however. “I got to law school expecting to have to change to fit a certain persona, but there was such a great bunch of other queer students on campus and everyone was so involved. I made a lot of great friends,” he says. During Mordaunt’s second year of university, he began applying for internships. An active advocate in the LGBTQI space, he initially didn’t think twice about how this might come across during the interview process. “I was talking to someone whom I had asked to look at my resume and they said, ‘Rhian, it’s great you’ve done all this amazing LGBT work, but what happens if the HR manager is homophobic?” he recalls. “I went home and was like, ‘Oh my gosh, I didn’t even think about this. Should I stop doing so much LGBT community stuff? Because what happens if I do get a homophobic employer?’ Then my best friend said, ‘Would you really want to work for a homophobic employer?’ That completely changed my mind. “For me, inclusivity matters. You really have to bring your whole self to work, and if you can’t bring your whole self to work, you’re not going to do your best.” Mordaunt’s first legal job was at Dowson Turco lawyers, and he now works for Thomson Reuters where he’s an active member of the Pride at Work network. “Major legal organisations are actually making an effort,” he says. “I don’t have to be this super-straight-acting, low-voice, movie archetype that I grew up watching.” Mordaunt is the recipient of a Pinnacle Foundation scholarship, supported by KWM, for promising LGBTQI law students. He sees his role as empowering other young LGBTQI people to be proud of who they are, and educating others about the benefits of equality. “Through the Pinnacle Foundation I’ve been able to go off and do talks at various organisations about
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“We can't control our sexuality, and hearing particular conservatives say things which suggest we should retreat to our closets is painful.� – Nicholas Stewart
the power of empowering LGBT young people and making sure they always feel supported,� he says. “It’s really good to support these people so they can become role models themselves.�
Champions for change
According to Catanzariti, more role models is exactly what the legal LGBTQI community needs. Quite simply, there are not enough visible, out-and-proud lawyers, he says – something which has led him to become active on LGBTQI issues, joining a Sydney University queer mentoring program as a mentor and taking an active role in advocacy via the IBA. Among other things, the IBA’s LGBTI Law Committee “promotes diversity and inclusiveness in the legal profession and society at large by presenting LGBTI ideals and calling attention to legal matters and developments through its sessions, publications, projects and collaborations with other committees in the IBA, as well as with external parties�. It is part of Catanzariti’s quest to be a positive role model for younger lawyers who may struggle. “The key in all of this is to have champions, whether within the law firms or more broadly.
To have identifiable judges, partners and CEOs showing that they have made it,â€? he says. “Aside from [former High Court of Australia Justice] Michael Kirby, where are the future LGBTQI champions?â€? While there has been significant change when it comes to genuine inclusivity and the end of discrimination against LGBTQI people, there is still much to be done. “There are so many pressures on gay people. They often have family and personal pressures ‌ It can lead to suicide. We have to get the work part right,â€? says Catanzariti. Truly effecting change means calling out homophobia in the workplace when it arises – not just standing by and doing nothing. “I think that not speaking out if [you] see harassment or any form of discrimination in the workplace is a problem,â€? says Mordaunt. “It’s very much a thing that, ‘Well I’m not the one saying it’ ‌ [so] they feel like they have no responsibility to call it out. Generally, if someone who’s senior says something that’s discriminatory, a person who is queer probably won’t want to go and challenge them out of fear they might lose their job, or not be respected, or be seen as a snowflake.â€? Catanzariti sees the issues in law firms as ongoing, despite a definite shift towards social, legal and economic equality. “As dynamics change in Australia, as there are more LGBTQI people in the profession, they need to have a safe house – not to be mollycoddled, but to be able to grow and feel totally comfortable with who they are,â€? he says. “Law firms have to lead that.â€?
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Abubaccar Tambadou, the Gambian Minister of Justice
Photo: Shafiur Rahman/Wikimedia Commons
and Attorney General.
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Moral courage Myanmar versus
On 23 January 2020, the International Court of Justice (ICJ) in The Hague ordered Myanmar to take all necessary measures to protect Rohingya Muslims from genocide. In late 2017, Myanmar's military massacred tens of thousands of Rohingya, committed widespread rape, and torched dozens of villages. The campaign of ethnic cleansing forced 740,000 Rohingya to flee to Bangladesh, but 600,000 remained in Myanmar, where they “may face a greater threat of genocide than ever”, a United Nations-backed fact-finding mission said. The associate director of Human Rights Watch's international justice program, Param-Preet Singh, tells Amy Braunschweiger how this court order is a first – but huge – step to hold Myanmar accountable for its atrocities against the Rohingya.
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It was a year ago that you started pursuing the unique approach to holding Myanmar accountable in the ICJ. How did that come about?
Gambia is just emerging from two decades of brutal dictatorship. Why did it take this on?
It's now more than two years since Myanmar's latest ethnic cleansing campaign began, and military atrocities against the Rohingya go back years. Why have there been no consequences until now?
What was it like being in The Hague for the ICJ hearing in December?
Myanmar’s longstanding brutal treatment of ethnic Rohingya is exactly the kind of crisis that the International Criminal Court (ICC) was created to address. The ICC tries individuals for grave international crimes, while the ICJ adjudicates disputes between countries. But since Myanmar isn’t a member of the ICC, only the UN Security Council could refer the situation to the ICC. That hasn’t happened because China has acted as Myanmar’s ally and protector, and as permanent member of the Security Council, can veto any resolution. The implied threat of a Chinese veto has managed to stifle criticism of Myanmar’s egregious human rights record and kept the situation from being referred to the ICC.
You needed to find a country to bring the case before the ICJ. How did that work?
When we first started raising this, at the UN in New York and in Canada and with other countries that had spoken out on genocide against the Rohingya, they said, what a creative, interesting idea – it’s not going to happen. We reached out to countries that had ratified the Genocide Convention in Europe, Africa, Asia and the Americas. Then, out of nowhere, the West African nation of Gambia made public their intention to move ahead. I wish we could claim credit! Gambian Minister of Justice Abubaccar Tambadou’s vision, moral courage and leadership in seeking justice for the Rohingya is truly inspirational. Gambia demonstrated to the world that there was a state brave enough to take on Myanmar’s brutal ethnic cleansing campaign and risk China’s wrath in doing so. Gambia’s decision to step forward gave new life to our efforts to reach out to countries around the globe, because now we were asking them to support Gambia in moving forward. 44
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Gambian Justice Minister Tambadou had worked as a prosecutor at the International Criminal Tribunal for Rwanda, prosecuting cases from the 1994 Rwandan genocide. When he unexpectedly found himself in Bangladesh, sent at the last minute to represent his country at the annual conference of the Organisation of Islamic Cooperation, he met with Rohingya refugees at Bangladesh’s Cox Bazar camp. He says that after listening to story after story, it was clear that they had experienced genocide. And he felt morally compelled to do something about it.
We brought a couple of Rohingya activists to The Hague and experiencing the moment with them was really moving. They felt they were finally being recognised by the world court because their government tried to erase them, which brought heartbreak but also power. Outside the court building, there were demonstrations, a lot of shouting and chanting by both Rohingya and Myanmar government supporters. The decision of de facto Myanmar leader and Nobel Peace Prize winner Aung San Suu Kyi to defend the military in person before the court brought an extra level of scrutiny – as well as more demonstrators and media. The Rohingya activists said they felt betrayed by Suu Kyi, who had spent many years under house arrest by the then-military government for her pro-democracy activism. They told me that they once hoped she would be their protector, but she was protecting the military instead.
What's the significance of Aung San Suu Kyi defending Myanmar's military in court?
The fact that she went to The Hague and personally spoke in defence of the military’s actions against a minority community means she has owned the military’s atrocities in court before the entire world. She has aligned herself with the perpetrators rather than the victims.
What does the court's order mean for the Rohingya? For international justice?
The ICJ directed Myanmar to prevent genocide, and this could have a real impact in protecting the 600,000 Rohingya who remain in the country. Additionally, the ICJ process means Rohingya survivors and activists have a platform for their experiences to be recognised. The ICJ order is a powerful reminder that Myanmar should not rely on powerful countries to escape its
Photo: Shafiur Rahman/Wikimedia Commons
The idea of a country without any connection to the crimes bringing a case to the International Court of Justice had never been done before, even though, technically, any member state of the 1948 Genocide Convention could do so. The fact that it was Gambia – a small African country recovering from 20-plus years of dictatorship – and not a big, rich country makes its leadership even more inspiring.
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an important role in enforcing the order, but because of China’s veto power I’m not holding my breath. In that regard, UN Secretary-General Antonio Guterres, who issued a strong statement in support of the ICJ ruling and has urged the Security Council to act on the Rohingya crisis in the past, could be a key player.
What's next?
Now the ICJ will hear submissions from both sides about the merits of the case, that is, whether or not Myanmar committed genocide against the Rohingya. It’s a pretty long road and will take years to unfold, and no outcome is certain. But this court order, and the court requirement that Myanmar report regularly on its implementation of the order – every six months – makes clear that the court is taking the matter very seriously and its scrutiny isn’t going away. And that could go a long way to helping protect the Rohingya remaining in Myanmar.
You woke up at 3:30 a.m. in New York to hear the ruling and finalise Human Rights Watch's response. Was it what you expected?
It all feels surreal. I had a feeling the court would hand down a favourable ruling, but that the 17 judges ruled unanimously is simply incredible. It adds to the
“The fact that it was Gambia – a small African country recovering from 20-plus years of dictatorship – and not a big, rich country makes its leadership even more inspiring.� responsibilities under the Genocide Convention and other international treaties. It also brings hope that so long as countries like Gambia are willing to step up, international justice can prevail.
Can the court's order be enforced? ↑ Aung San Suu Kyi speaks at the International Court of Justice in December 2019. Behind her is the counsel for Myanmar, William Schabas. In the foreground is Abubacarr Tambadou, the counsel for The Gambia.
The ICJ has made a legally binding ruling, but enforcing it, given Myanmar’s track record, could prove difficult. The world needs to raise the political cost of non-compliance for Myanmar and show them countries are watching. Human Rights Watch will be urging governments to use their diplomatic leverage with Myanmar to improve the Rohingya’s situation. We will also promote resolutions at the UN Human Rights Council and the UN General Assembly to send a strong message to Myanmar to abide by the court’s order. The Security Council, too, could play
weight of the order. There was a moment of panic before everything starts, and I started thinking, what if they rule against Gambia? What would we tell our Rohingya partners? And there’s also the logistics – getting our news release out quickly, answering media calls, and commenting on social media to explain to the world this important victory for the Rohingya, Gambia and international justice. When, at the end of the ruling, the chief judge said “unanimously,� then hearing him say it four times over – that really drove the point home. If you had told me a year ago that we would be in this place, I’d have said you were crazy. But that’s our job, right? To do our part to make things happen and help survivors get the justice they deserve. This article was first published by Human Rights Watch and is republished here under Creative Commons license.
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Photo: Kamal Kant Kosariya/Unsplash
Illumination
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HUMAN RIGHTS
Nepal's uphill battle for human rights
In March this year, Nepal was to be the host of the 2nd LAWASIA Human Rights Conference. Sadly, world events have meant the deferral of the conference, yet the opportunity remains for us to learn more about this fascinating country and the determined strides it is making toward greater institutional human rights protections. Ella Howard reports.
N
epal is a landlocked country that lies across the southern slopes of the Himalayan mountain range. It has an estimated population of 29 million. From 1996–2006, the Nepalese endured an extended civil conf lict between the Communist Party of Nepal (Maoist) and the Nepalese government. Following the signing of the Comprehensive Peace Agreement in 2006, Nepal embarked upon a period of transition. Nepal’s Constitution, enacted in 2015, establishes a federal system of government with a prime minister, a bicameral parliament, and seven provinces. In contrast to the frequent changes in government that have characterised Nepal’s recent political history, the current Communist Party coalition government enjoys a historic majority in Parliament.
New national human rights institutions
Nepal’s 2015 Constitution establishes eight human rights agencies, or national human rights institutions (‘NHRIs’), each with its own mandate to protect the needs of specific groups. These include women, indigenous people, people with disabilities, and other vulnerable or marginalised groups. These NHRIs have been tasked with monitoring human rights violations, assessing Nepal’s compliance with international treaty obligations, and recommending
changes to law, policy and practice that may currently discriminate against groups within Nepal. One of these agencies is the National Human Rights Commission (‘NHRC’), established in 2000. Its current Strategic Plan (2015 to 2020) has given priority to the issues of civil and political rights such as transitional justice, social inclusion, consumers’ rights, non-discrimination, and the human rights of disadvantaged classes and marginalised communities. It coordinates and cooperates with NGOs on these issues. From the time of inception, the NHRC has achieved and retained “A” status in its accreditation with the International Coordination Committee of the Network of International Human Rights Institutions. This is despite reports from the NHRC that it is significantly under-resourced. While the establishment of these agencies is a clear step forward, concerns have been raised that Nepal’s human rights agencies appear to operate without a clear collaborative framework for interagency cooperation or allocation of responsibility for matters that may fall within the remit of more than one agency. It has been suggested that this lack of coordination may undermine their credibility, “creating confusion among those they are meant to protect, weakening the rule of law, and nurturing impunity”.
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Nepal has made efforts to address transitional justice issues arising from the civil conf lict. In 2015, the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons were established to investigate allegations of gross violations of human rights and crimes against humanity during the armed conflict, and to create an environment of reconciliation. By early 2018, the two Commissions had respectively collected more than 60,000 and 3,000 complaints of human rights violations during the conflict. These complaints included allegations of murder, torture and enforced disappearance. Despite the establishment of these two commissions, international organisations such as Amnesty International, the International Commission of Jurists, and Human Rights Watch have expressed concern that Nepal has made little progress on accountability for human rights abuses committed during the civil war. The United States Department of State noted in its report on Human Rights Practices for 2018 that no cases have been brought for acts of torture or enforced disappearances during the civil conflict. There are also outstanding disputes regarding land possession by the Maoists and their affiliate organisations. Some barriers to progress are seen to arise from the way in the Commissions have been established. The enabling legislation makes provision for amnesties and impunity for human rights violations that would amount to serious crimes under international law, as well as a broad authority to facilitate reconciliation even without the informed consent of victims and their families. Despite a decision of the Nepali Supreme Court criticising those provisions, the law has not been amended to fully address those concerns (Madhav Kumar Basnet v the Government of Nepal, Order 069-WS-0057). The manner of operation of the commissions has also been criticised. In addition to concerns about resourcing, the international community has expressed reservations about the lack of transparency in the operation of the Commissions and the lack of measures to ensure confidentiality or security. There are further concerns that perpetrators of human rights abuses remain in positions of power and that any investigations may be affected by the fact the Communist Party of Nepal (Maoist), a vested party in the conflict, has formed a coalition with the current ruling party. The operational mandate of both commissions was due to expire on 9 February 2019. The Government extended the terms of the two commissions by 48
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one year, although the terms of the commissioners expired on 13 April 2019. In April 2019, a number of UN Special Rapporteurs and Working Groups sent a joint communication to the Nepali Foreign Minister setting out information they had received regarding a lack of impartiality, independence and transparency in the operation of the commissions, as well as the reported lack of progress and the need for possible amendment to the enabling legislation. The memorandum called on the Government to amend the enabling legislation to align with international human rights standards and sought the Government’s comments on the information set out in the memorandum. As at August 2019, no formal appointments to the commissioner positions had been announced. In addition to establishing the commissions, Nepal has sought to address transitional justice in other ways. For the first time, Nepal’s 2018 Criminal Code recognises enforced disappearance as a distinct crime. The provisions apply retrospectively to the cases that arose during the civil conflict. However, the international community has raised concerns that the law does not meet Nepal’s obligations under
Photos (clockwise from top): 4X-image/iStock; Preview from Google Play; UN Geneva/Flickr
Human rights and transitional justice
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← Migrant workers on a construction site. ↓ Shuvaytra (Safe Journey) is an app designed to be a safe migration tool for workers. ↓ The UN Special Rapporteur on the Human Rights of Migrants Felipe Gonzalez Morales.
“International organisations ... have expressed concern that Nepal has made little progress on accountability for human rights abuses committed during the civil war.”
international law. This includes concerns that the definition of enforced disappearance falls short of international standards; the crime of enforced disappearance is not absolutely prohibited; provisions related to superior and command responsibility are inadequate; and the penalties for enforced disappearance are inconsistent with international standards.
Workers’ rights and migrant workers
More than 1,500 people depart Nepal each day in search of work in India, the Middle East and East Asia. In 2018, Amnesty International reported that migrant workers were being systematically subjected to unlawful and criminal conduct by recruitment businesses and agents. Amnesty International alleged that recruiters routinely charged migrant workers illegal and excessive fees, deceived them about the terms and conditions of their work abroad, and manipulated their consent to overseas work through the accumulation of recruitment debts. The report noted that some recruiters were directly involved in labour trafficking, which is punishable under Nepal’s Human Trafficking and Transportation (Control) Act. Amnesty International also noted that for the 2017/2018 period fewer than 100 recruitment agencies were fined or referred to the Foreign Employment Tribunal for violations of Nepal’s foreign employment laws, even though more than 8,000 migrant workers filed cases against recruitment agents. The report suggests that “recruitment businesses continued to use their political influence to prevent investigation, prosecution and redress for their routine abuse and exploitation of migrants.” Several NGOs have tried to assist Nepali workers with these issues. In 2016, the Asia Foundation and the Non-Resident Nepali Association, along with Young Innovation, developed Shuvaytra (Safe Journey). Shuvaytra is an app designed to be a safe migration tool for workers. The app features information about labour rights, work permits and working conditions abroad as well as specific information on popular destination countries. The app has since been expanded to include short courses that can be undertaken by users. The Nepali Government has also made progress in protecting citizens who migrate for foreign employment. The 2007 Foreign Employment Act has been further developed and strengthened by the 2008 Foreign Employment Regulation, the 2012 Foreign Employment Policy and the 2015 “free visa, free ticket” policy, among other measures. These were intended to relieve the financial burden on Nepali migrant workers, including a cap on the cost of recruitment for the worker and the requirement
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“Several aspects of life [in Nepal] continue to impact negatively on women and girls.” “free visa, free ticket” policy to prevent migrant workers from suffering the financial burden of pursuing foreign jobs. There were reports in late 2019 that Nepal’s Government was entering into labour agreements with major destinations for Nepali migrant workers, including Oman. At a conference in November 2019, the International Conference on Protection of the Migrant Workers produced the Kathmandu Declaration, which identifies areas where national human rights institutions could strengthen support for migrant workers in the Asia Pacific region. The Declaration is supported by a 10 Point Plan of Action, encouraging practical action on the part of the national human rights institution.
Right to housing
In 2015, two earthquakes in Nepal led to an estimated 9,000 deaths and the destruction of nearly one million
↑ Homes destroyed by the 2015 earthquake, in Bhaktapur, 30km east of Kathmandu. → Scenes of Bhaktapur Durbar Square one year since the earthquakes hit Nepal.
Photos (clockwise from top): Julian Bound/iStock; Rudi Suardi/iStock
that the employer be responsible for the worker’s visa fees and airfares. The UN Special Rapporteur on the Human Rights of Migrants, Felipe Gonzalez Morales, visited Nepal in early 2018. While Mr Gonzalez recognised that Nepal has made progress in ensuring the protection of the rights of its citizens migrating to work abroad, he noted that there remained gaps in the legislation and ongoing challenges in enforcement and implementation. The Special Rapporteur made a number of preliminary recommendations to the Nepali Government to assist it to address these issues. These recommendations fell into the categories of: strengthening the legal and policy framework; effective regulation, oversight and enforcement of the law; regional and international cooperation; access to justice; empowering migrants through information and support; and countries of destination. In early 2019, the Government of Nepal indicated it would endorse a National Migration Health Policy, although the Government also suggested that host governments, which benefit from the positive impacts of migration, are equally responsible for addressing migrants’ health issues. In 2019, the Nepali Supreme Court issued a directive to the Government to take necessary measures for the effective implementation of the
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homes across affected areas. In 2018, Amnesty International estimated that nearly 70 per cent of people affected by the earthquakes were still living in temporary shelters. Amnesty International stated that the Nepali Government had stipulated proof of land ownership as a condition for receiving the existing rebuilding grant, however up to 25 per cent of the population could not meet this criterion. This resulted in thousands of people remaining ineligible for grants. Amnesty noted that this primarily affected marginalised and disadvantaged groups. Noting that the “owner-driven reconstruction approach� adopted by the National Reconstruction Authority placed the responsibility of rebuilding on home owners and communities, a number of international organisations and other governments have established projects to assist affected people. The UNDP, with support from the Government of
India, launched the Nepal Housing Reconstruction Project in March 2018 to help more than 26,000 house owners rebuild in Gorkha and, with the support of the European Civil Protection and Humanitarian Aid Operations, is supporting another 11,000 households in other parts of Nepal.
Discrimination
In 2017, Nepal adopted the Disability Rights Act and an Inclusive Education Policy, which aims to ensure that children with disabilities can study without discrimination in their communities. The government is also developing an inclusive education plan to create disability-friendly education infrastructure and facilities, improve teacher training, and develop a f lexible curriculum by 2030. These laws appear designed to address a history of discrimination against children with mental and physical disabilities, including limited access to education.
Women's and girls’ rights
Reports indicate that despite recent human rights achievements in Nepal, several aspects of life continue to impact negatively on women and girls. Areas of concern relate to violence against women, child marriage, and other traditional practices such as dowries and chhaupadi (the practice by which Nepalese girls and women are expected to sleep in ‘menstruation huts’). While some of these activities, such as chhaupadi practices, have been outlawed, recent research suggests the laws have had very little impact on the practices. Some other areas, such as equal citizenship for women, are not yet enshrined in domestic law.
Conclusion
From a review of domestic and international commentary regarding Nepal, it is clear that considerable efforts are being made to move towards international human rights standards. However, commentary and analysis from both within and outside Nepal highlights areas for further development. It is encouraging that Nepal is continuing to work with international organisations and consider recommendations to further progress its recognition and protection of human rights at both institutional and individual levels. Ella Howard holds a Bachelor of Arts/ Bachelors of Laws (Hons) and has experience working in government and not-for-profit organisations, including the LAWASIA secretariat. This article was written by Ella in her personal capacity and the opinions expressed do not reflect the views or opinions of any past or current employers.
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Illustration: Wild Pixel/iStock
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INTERNATIONAL LAW
Cruising through the Coronavirus A journey through international law
The cruising industry has found itself at the centre of the global COVID-19 pandemic, creating headlines around the world. Dr Christopher Ward SC investigates the tension between States rights and the humanitarian needs of the passengers and crews on board.
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enturies ago, the international movement of plague and sickness led to the development of rules of quarantine. In the 14th Century, the practice of quarantine developed in Croatia, and then Italy. History records that the Master of a vessel arriving in Venice during this period was required to make a declaration through a window to a health magistrate, and if plague was suspected, the vessel and its crew and any passengers were required to lie at anchor for 40 days (quaranta giorni). In more recent history, countries including Australia and the United States of America maintained quarantine stations for arriving passengers. Quarantine has been used as a blunt instrument to meet challenges of disease including outbreaks of yellow fever, smallpox, cholera, Spanish flu and the SARS virus.
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The COVID-19 pandemic has brought issues of quarantine and sea transport to the fore. Globally, the sight of large cruise ships wallowing offshore, unable to land their crews (and in some cases passengers) despite ever-increasing numbers of sick individuals on board, has been a distressing and difficult sight. It seems clear that the contagious nature of COVID-19 has allowed transmission within cruise ship populations at a high level, with the Diamond Princess off Japan, being the first obvious example, resulting in a number of deaths. Protracted situations occurred around the world. The Zaandam with many sick, and some dead passengers, was stranded for some days off South American states before first rendezvousing with her sister ship the Rotterdam, before finally finding refuge in Florida. The Artania reached port in Fremantle in Western Australia and the majority of the passengers were transferred by air to Germany on 28 March 2020. Approximately 50 passengers were hospitalised on shore, and one subsequently died. The ship remained in port after being directed to leave despite having a number of very ill passengers still on board. The world has been faced with the unedifying sight of many tens of thousands of cruise ship passengers and crew in a state of international limbo, unable to land, and in some cases being denied prompt access to ports for purposes of refuelling and reprovisioning, or even the provision of appropriate medical treatment for individuals on board. The treatment of these vessels, and the people on board, is subject to established rules of international law. Those rules apply both to coastal states, and to the vessels concerned. Compliance with those rules by coastal states, and possibly in some cases by the masters of the vessels involved, has been stretched by the urgent and unexpected nature of the crisis, the speed and global reach of the virus, and by the extent to which the COVID-19 virus is now known to create serious or lethal illness. The fact that the virus is particularly lethal to older population groups, who are over-represented in the demographic of many cruise ships, adds to the pressing need for states to meet their humanitarian obligations to those on board.
Distress, innocent passage and safe havens: What can we learn from international maritime conventions?
Australia, like the majority of states, is a party to the United Nations Convention on the Law of the Sea 1982 (‘UNCLOS’). Article 2 of UNCLOS provides that a state exercises full sovereignty over its internal 54
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waters and the territorial sea (to a limit of 12 nautical miles). Similarly, customary international law does not require a coastal state to permit unconditional entry to its ports (A.V. Lowe, ‘The Right of Entry into Maritime Ports in International Law’, 14 San Diego Law Review 597 (1977)). On 16 March 2020, the Australian Government publicised a ban on all cruise ships from entering Australian waters other than those already in Australian waters, or en route to Australian waters at that time. A number of vessels fell into those categories. On 27 March 2020, a Determination was made by the Minister of Health requiring all cruise ships to leave Australian waters other than any bearing the Australian flag, but allowing the vessels to request permission to remain in Australia. On 4 April 2020, the requests for permission that had been received were denied, and a further direction was issued that all foreign flagged cruise vessels were required to leave Australian waters. In taking those steps, Australia sought to exercise its sovereign rights within the territorial sea. However, the sovereign rights of a coastal state in the case of ships facing circumstances of distress are conditioned by established rules of customary international law and other more specific treaty provisions to which Australia is a party.
↑ A Princess Cruise ship at sea. ↗ Passengers onboard a cruise ship.
Photos (clockwise from top): Yiran Ding/Unsplash; Ozgurcankaya/iStock
Around the world, cruise ships are in international limbo
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International state practice has long recognised a right of vessels to seek safe haven in a port in circumstances of distress. That customary right is not absolute. It is premised upon the nature of the distress being both urgent, and likely to result in the loss of the ship or its crew or passengers (The Eleanor [1809] Edwards’ Admiralty Reports 135). The right is consistent with Article 98 of UNCLOS which requires all states to ensure that the master of any ship flying the flag of the state shall render assistance, to the extent that it is possible without endangering that ship or its crew and passengers, to any person in danger of being lost at sea. That international law obligation is given domestic effect in Australia by s 181 of the Navigation Act 2012 (Cth). Article 98(2) requires coastal states to maintain adequate and effective search and rescue services, necessarily implying a duty to rescue those in peril on the sea.
“International state practice has long recognised a right of vessels to seek safe haven in a port in circumstances of distress, but that right is not absolute.” The obligations of the coastal state are also framed by reference to the International Convention on Maritime Search and Rescue (the ‘SAR Convention’) and the 1974 Convention on Safety of Life at Sea (the ‘SOLAS Convention’). The SAR Convention defines a distress phase to include a situation of grave and
imminent danger to a person requiring immediate assistance. The SOLAS Convention recognises in Chapter V regulation 34.1 the Master’s discretion to take any decision necessary to safe navigation. The sight of several cruise ships around the world lying at anchor near, but not in, coastal ports, is consistent with Article 18(2) of UNCLOS. Article 18 codifies the customary right of a vessel to exercise the right of innocent passage through a territorial sea. Ordinarily, passage means just that – a continuous movement without anchorage. However, Article 18(2) expressly provides an exception to the requirement that innocent passage through the territorial sea be continuous, by permitting anchorage in cases of force majeure or distress or the need to render assistance to persons in danger or distress. It follows that where a master of a cruise ship believes reasonably that remaining near to a coastal state port, presumably with access to medical facilities, is a proportionate and necessary response to the likelihood of danger to persons on board, the right to remain at anchor in a territorial sea is consistent with international law. In so far as life threatening illness affects the crew of the vessel, the Maritime Labour Convention 2006, to which Australia is a party, requires that crew are provided with prompt and adequate medical care as comparable as possible to that available to workers on shore. A coastal state is obliged to ensure that seafarers on board ships in its territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore (regulation 4.1). Perhaps in compliance with these obligations, on 2 April 2020 Australia sent a medical team on board the Ruby Princess to assess the health condition of the almost 1,100 crew members on board. At least one crew member was evacuated to shore-based hospital following that assessment.
What rights does a coastal state have to protect its own interests?
A coastal state does have rights which enable it to protect its own interests, and it is in the application of these rights in the present circumstances that the stand-off between the cruise ships and coastal states has been played out. There is growing state practice limiting the right of refuge in cases of potential serious environmental harm in cases of damaged or distressed vessels, with some states refusing access to damaged vessels, or requiring financial bonds before granting access. It may be reasoned by analogy that the right of access is not unconditional when serious public health consequences to the coastal state may follow.
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One attempt to deal with the situations is found in the World Health Organization Health Regulations 2005. The World Health Organization (‘WHO’) has been the focus of international co-operative efforts to meet the COVID-19 pandemic challenge. The basis of that response is the International Health Regulations (the ‘Health Regulations’) which were originally adopted in 1969. They are made under the authority of Articles 21(a) and 22 of the Constitution of WHO and are binding upon all WHO Member States who do not specifically choose to opt out after adoption by the Health Assembly of the WHO. The current version of the Health Regulations was adopted in 2005. They came into force for 196 States in June 2007. The Health Regulations provide a basis for international co-operation, in good faith, between States. The Health regulations deal with the position of vessels in great detail, and State parties to the WHO are bound by legal obligation to comply with those provisions. A distinction is drawn between ships “coming from an affected area” and those which do not. Where a ship is not coming from an affected area, Article 25 requires that it be permitted to take on fuel, water and supplies, and that no health measure be applied to the vessel. Given the global number of affected areas in the COVID-19 pandemic, the more significant provisions are those dealing with ships coming from affected areas. Such vessels are governed by Article 27 and Article 28. That Article permits a coastal State, if evidence of a public health risk or clinical signs of infection are observed, to disinfect the vessel, and take other steps within the scope of the Health Regulations to secure an “adequate level of control of the public health risk”. Importantly, the vessel may be allowed to depart and must be permitted to take on fuel, water, food and supplies before departure. It follows that even where a coastal state wishes to deny access to a port, it must at a minimum allow provisioning of the vessel. By Article 28(1), a vessel must not be prevented from calling at any port of entry of a coastal State, although it may be directed to a port of entry which is more appropriately equipped to deal with the health crisis. By Article 28(2) vessels must not be refused free pratique (the ability to enter a port on assurance that the vessel is free from disease) on public health grounds, although the coastal State may grant free pratique on condition of inspection, decontamination or other necessary measures to prevent the spread of infection. This is a significant provision, as it 56
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↑ ↘ U.S. Customs and Border Protection officers facilitate the arrival of passengers and crew disembarking cruise ships at Port Everglades, Florida.
Photos: Gary Gillard for USCPB/Flickr
WHO health regulations: State parties legally bound
“The existing rules of international law were not designed to deal with the extreme, urgent, unexpected and universal characteristics of the COVID-19 pandemic.” requires the master of a vessel at international law either to provide an assurance that the vessel is free from disease, or to provide to the coastal state such information about the existence of disease as is available to the master. The coastal State obligations under Article 28 to permit the taking on of fuel, water, food and supplies have been severely tested by the COVID-19 pandemic, given that it seems that with present medical science it is not easily possible to disinfect or otherwise deal with on board infection so as to prevent the spread of risk within the coastal State. Notably, Article 28(6) permits an officer in command of a ship to take “such emergency measures as may be necessary for the health and safety of
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travellers on board�. It is not clear at the date of writing whether any ships’ captain has declared a mayday emergency or taken other forceful steps to ensure the health treatment of infected passengers and crew. The operation of Article 28 is expressly made subject to Article 43. Article 43, entitled ‘additional health measures’, permits a State to implement health measures consistent with international law in response to specific public health risks or public health emergencies of international concern which are otherwise inconsistent with (relevantly) Articles 28(1) or 28(2). Any measure which involves refusal of entry to international travellers or conveyances (including vessels) must be notified to the WHO together with the rationale for the restrictive measure. However, Article 43 does not exclude the possibility of a ships’ captain taking emergency measures to secure the health and safety of those on board. That would clearly include the declaration by a master of a state of distress, triggering the coastal state emergency obligations discussed earlier. The Australian Government was clearly aware of that possibility in its actions, with the Minister for Home Affairs Peter Dutton stating on 2 April 2020 that: “We’ve also got to be cautious about the fact that if you force these boats to set sail, and they end up having people die or people who are seriously sick by the time they get a couple of hundred nautical miles off the coast, they’d turn around and come back. So we’ve got to deal sensibly with each of them.�
Conclusion
The balance to be struck between coastal State rights and humanitarian needs of passengers and crews in a global pandemic is evolving. Many thousands of passengers and crew boarded cruise vessels in the expectation of an enjoyable cruise or an interesting workplace. Many remain on board at the date of writing. Many coastal states have clearly attempted to manage the tension between providing refuge and humanitarian medical treatment to people on board and the protection of domestic medical services. The existing rules of international law were not designed to deal with the extreme, urgent, unexpected and universal characteristics of the COVID-19 pandemic. However they have provided at least the basis of a workable framework, without which many more ships may have been left cruising indefinitely with unbearable humanitarian consequences. Dr Christopher Ward is Senior Counsel of the New South Wales Bar at 6 St James Hall International Chambers, Adjunct Professor of the Australian National University and President of the International Law Association.
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BUSINESS
Contract law in the age of COVID-19 PRC, English and Hong Kong laws
With a deadly pandemic sweeping the globe, it’s hardly a case of business as usual, but does that make it business impossible? Wilson Antoon, Paul Starr and Mike Wang examine the tough questions facing clients dealing with the challenges of contractual performance.
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he novel coronavirus COVID-19 has affected major cities and numerous towns in the People’s Republic of China (‘PRC’) and around the world. On 30 January 2020, the Director General of the World Health Organization (‘WHO’) declared the coronavirus outbreak a “public health emergency of international concern”. As the situation continues to evolve rapidly, the coronavirus outbreak presents not only a public health crisis but also disruptions to businesses and their supply chains. Clients are faced with challenging questions concerning their exposure to liability under contracts of different governing laws entered with Chinese and international parties. In particular, there are concerns that contractual obligations can no longer be fulfilled as a result of the outbreak and consequential epidemic control measures implemented by governments. This article provides practical insights on the scope and operation of (i) force majeure under the law of the PRC, English law and Hong Kong law; and (ii) frustration under English law and Hong Kong law.
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As PRC law is codified, it is important to understand the relevant statutory provisions and the Supreme People’s Court’s interpretations of those statutory provisions.Under PRC law, force majeure is defined in and regulated through the following statutory provisions: Article 180 of the PRC General Provisions of Civil Law (中华人民共和国民法总则), Articles 107 and 153 of the PRC General Principles of Civil Law (中华人民共和国民法通则) and Articles 94, 96 and 117-118 of the PRC Contract Law (中华人民共和国 合同法). Force majeure is defined as any objective circumstance that is unforeseeable, unavoidable and insurmountable. As a general principle of the PRC Civil Law, by the operation of statutory provisions, a party is in principle exempted from liability in whole or in part if it is unable to perform a contract due to force majeure. Under the PRC Contract Law, in particular, the following statutory provisions regulate the operation of force majeure in the context of contracts governed by PRC law. • Article 94(1) provides that a party may terminate a contract if the purpose of the contract is rendered impossible to achieve due to force majeure. • Article 96 further provides that a party who wants to terminate the contract in accordance with Article 94 shall notify the other party. The contract is terminated when the notice reaches the other party. If the other party does not agree to the termination, it may seek confirmation of the validity of the contract from the court or arbitral tribunal. • Article 117 provides that if a party delays its performance of the contract and the force majeure event happens after the delayed performance, that party cannot be exempted from liability. • Article 118 further provides that a party who is unable to perform a contract due to force majeure shall notify the other party promptly to reduce potential losses caused to the other party; and shall provide proof/certificate of force majeure within reasonable time.
Proof/certificate of force majeure
On 30 January 2020, the China Council for the Promotion of International Trade (CCPIT) announced that it will offer force majeure certificates to Chinese companies struggling to cope with the impact of the coronavirus outbreak. On 2 February 2020, CCPIT issued the first certificate to a Zhejiang-based auto parts manufacturer within one day of its application. Although a certificate will provide strong evidence 60
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of the existence of a force majeure event (particularly for CIETAC arbitral tribunals, given that CCPIT is the government agency that set up CIETAC), a party will still need to show there has been an objective circumstance that was unforeseeable, unavoidable and insurmountable such that it rendered performance impossible. The sufficiency of a certificate from CCPIT confirming force majeure has not yet been tested before the courts in China. CCPIT itself has stated it is not taking the position that a certificate is sufficient to exempt liability. In practice, a PRC court typically will apply relevant statutory provisions, follow relevant Supreme People’s Court’s interpretations of those statutory provisions, and take into account all the surrounding circumstances of the case, in addition to the force majeure certificate. To obtain a force majeure certificate, parties should make an online application to CCPIT’s certification platform (www.rzccpit.com) and submit the following supporting documents: • Export sales contracts, cargo booking agreements, freight forwarding agreements, customs declarations, or any other relevant contracts; • Certificates and/or announcements issued by municipal governments or institutions;
↑ Cargo containers are being sprayed down to prevent the spreading of the coronavirus.
Photo: BulentBARIS/iStock
Force majeure under PRC law
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Notices and/or certificates on delay or cancellation of sea, land or air freight. CCPIT considers the most important documents to provide are the relevant contracts. In the absence of a written contract, CCPIT may accept electronic order forms or emails that are legally enforceable and contain detailed information of the relevant orders. It is also important to remember that Article 26 of the Supreme People’s Court’s Interpretation No.(II) of the PRC Contract Law provides that where a relevant party petitions the People’s Court, the People’s Court shall decide whether to modify or terminate a contract under the principle of fairness and in light of all the circumstances of the case where (a) there is an unforeseeable major change of circumstance after the formation of the contract that is not a business risk and is not caused by a force majeure event and (b) if the continued performance of the contract is obviously unfair to the other party or cannot realise the purpose of the contract.
Force majeure causes: English law and Hong Kong law
Under both English law and Hong Kong law, force majeure is regarded as a contractual creation and has no agreed definition. This is contrasted with PRC law where force majeure is a defined concept codified in statute. In the absence of a force majeure clause, parties to English and Hong Kong law contracts cannot avail themselves of the force majeure doctrine (though the narrower doctrine of frustration, discussed below, may still apply).
“The courts typically interpret force majeure clauses strictly with the result that it can be difficult to claim their benefit.” Whether a party can rely on a force majeure clause in light of the coronavirus outbreak will depend on the specific wording of the relevant force majeure clause. The drafting of force majeure clauses varies significantly from contract to contract. Typically, force majeure clauses: • provide for a party to be excused from performance of its contractual obligations where there are circumstances beyond the reasonable control of a party;
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specify a non-exhaustive list of force majeure events. The coronavirus outbreak and any related epidemic control measures may be captured by wording such as ‘disease’, ‘epidemics’, ‘acts of God’, ‘acts of Government’ or a general catch-all like ‘other circumstances beyond the parties’ control’; • may exclude events that could have been reasonably foreseen or avoided at the time of entering into the contract; • may require a defaulting party to show it has used all reasonable efforts to mitigate the effects of the force majeure; • may require a party to give notice to the other party in a prescribed form and within a particular time limit when a force majeure event has occurred; • usually provide for when a party is released from their contractual obligations as a result of the force majeure event and whether a non-defaulting party has any termination rights. A party must show that the coronavirus outbreak or any related epidemic control measures fall within the scope of the relevant force majeure clause. Generally, a party must also show: • causation – the party was prevented, hindered or delayed from performing the contract due to the force majeure event; • its inability to perform the contract was beyond their control; • there were no reasonable steps the party could have taken to avoid the effects of the force majeure event; and • the party complied with any notice or other requirements imposed by the clause. (Channel Island Ferries Ltd v Sealink [1988] 1 Lloyd’s Rep 323; Goldlion Properties Ltd v Regent National Enterprises Ltd (2009) 12 HKCFAR 512). The courts typically interpret force majeure clauses strictly with the result that it can be difficult to claim their benefit. For example, where a party’s inability to perform is caused by multiple factors, only some of which are force majeure events, the party may not be able to rely on force majeure to excuse non-performance (Seadrill Ghana Operations Limited v Tullow Ghana Limited [2018] EWHC 1640 (Comm)). Further, where a force majeure event makes performance by a party more difficult or expensive, but does not prevent performance, this may not be enough to allow the party to rely on force majeure (See Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93, where the need to take a far longer shipping route than initially planned was not force majeure; Thames Valley Power Limited v Total Gas & Power Limited [2005] EWHC 2008 (Comm), where the fact that a contract became expensive to perform was not force majeure; Tandrin Aviation
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Frustration under English law and Hong Kong law
Under both English law and Hong Kong law, frustration is a principle of common law and rights arising out of frustration do not need to be provided for in contract. Frustration arises where an event occurs, after contract formation, which is beyond the parties’ control rendering it impossible to perform the contract or where the relevant obligation is transformed into a radically different obligation from what was contemplated at the time the contract was entered (‘The Eugenia’ [1964] 2 QB 226, CA; Wong Lai-ying v Chinachem Investment Co Ltd [1980] HKLR 1). A frustrating event generally must be unforeseen, unexpected or uncontemplated at the time the parties entered the contract. A two-stage test would be applied to assess whether the coronavirus outbreak constitutes a frustrating event: • Stage 1 – Was the particular event/situation provided for in the contract? If yes, frustration is not possible. If not, proceed to the next stage. • Stage 2 – Was it an event of such nature that continued performance of the contract was 62
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“Under both English law and Hong Kong law, force majeure is regarded as a contractual creation and has no agreed definition. This is contrasted with PRC law where force majeure is a defined concept codified in statute.” rendered impossible or such that performance was rendered so radically different from what was originally contemplated that it would be unjust to hold that the parties remain bound by the contract? If yes, the contract may be frustrated. While the coronavirus outbreak and related epidemic control measures may be unforeseen at the time of entering into the contract, the key obstacle will be showing that there is ‘radical difference’ in the parties’ obligations. Bearing in mind that English and Hong Kong courts apply the principle of frustration within very narrow limits, it is not sufficient that a contract becomes unexpectedly difficult or more expensive to perform on one or both sides. The courts will not relieve a party from a turn of events that makes performance more onerous, or leads to a delay that is merely transient. However, the courts may take into account the likely period of interruption (e.g. extension of holidays, delays in resumption of work, quarantine periods, isolation orders) as benchmarked against
↑ An almost empty Hong Kong Mass Transit Railway train during peak hour, due to COVID-19.
Photo: Undefined/iStock
Holdings Limited v Aero Toy Store LLC [2010] EWHC 40 (Comm), where an “unanticipated, unforeseeable and cataclysmic downward spiral of the world’s financial markets” was not force majeure). In contrast, if the force majeure clause requires the event to merely “hinder” (as opposed to “prevent”) performance, a party may be able to claim relief in circumstances where it is unable to perform without either dislocating its business or breaking other contracts in order to fulfil one (See Tennants (Lancashire) Ltd v CS Wilson & Co [1917] AC 495, 510).
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the outstanding period for performance under the contract with a view to determining whether such delay causes a radical change in the nature of the contract. In this regard, the courts will consider delay from a commercial perspective, appreciating that businesses should “be free from commitments which are struck with sterility for an uncertain future period�, and will offer relief where there is “a reasonable probability from the nature of the interruption that it will be of indefinite duration� (Denny Mott & Dickson Ltd v James B Fraser & Co Ltd [1944] AC 265, 278). Under both English law and Hong Kong law, frustration will cause a contract to be brought to an end automatically, without either party’s act or election. Parties are released from their unperformed future obligations (Hirji Mulji v. Cheong Yue Steamship Co Ltd [1926] AC 497, PC). This may not be desirable for parties who want to maintain their commercial relationships. In such a situation, parties can consider whether or not they can avail themselves of the doctrine of temporary impossibility – a concept similar to frustration and also narrowly applied – which affords parties the right to suspend performance for the period during which it is impossible to perform a contract.
Compulsory quarantine
The Hong Kong government has announced a 14-day mandatory quarantine period for all persons entering Hong Kong from the China Mainland starting from 8 February 2020 (Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation (Cap. 599C Laws of Hong Kong). Persons under quarantine are directed to stay at home, hotels, other dwelling places or temporary accommodation provided by the government. Any person concerned who leaves such places without permission may commit a criminal offence. Whether this measure constitutes force majeure or frustration depends on the wording of the force majeure clause and the specific contractual obligations it affects. If there is no force majeure clause, then one would also have to consider whether the measure makes it impossible to perform the contractual obligation or transforms the contractual obligation into a radically different one. Naturally, in situations where (i) physical presence of that particular person is required to carry out the obligations and (ii) the obligations require performance within a very short timeline, the 14-day quarantine may directly affect their ability to perform the contract. This requires careful factual analysis and the impact of the quarantine will vary from case to case.
Practical tips As the coronavirus outbreak continues to create ongoing uncertainty, we suggest the below practical steps for parties to be prepared for different eventualities: → Check the governing law of your contract. If your contract is governed by PRC law, take advice on whether a force majeure certificate should be sought and whether you can rely on the statutory regime of force majeure under PRC law in addition to or as an alternative to any contractual terms on force majeure; → If your contract is governed by either English or Hong Kong law, review any force majeure clause contained in the contract and take advice on their scope and effect. Take advice on whether you can rely on frustration as a matter of the operation of English/Hong Kong law; → Review your contract as a whole and evaluate how force majeure clauses, if any, affect the overall fabric of the contract. Consider in particular whether there are provisions on suspension of performance and whether any termination rights or obligations to renegotiate are triggered as a result of force majeure or hardship; → Monitor and keep copies of relevant government and regulatory announcements, notices and policies; → Notify other parties promptly in the manner and form prescribed by the contract; → Keep detailed records where there is non-performance of a contract, including the timing of non-performance, the parties involved, the contractual obligations affected, proof of the force majeure or frustrating event, mitigation efforts and quantifiable losses; → Mitigate the effects of the force majeure or frustrating event and potential losses sustained by the other party; → Actively negotiate with the other party for possible waivers, time extensions and mutually beneficial alternatives to fulfil contractual obligations; → If possible, amend your existing contracts and when entering into new contracts, ensure force majeure clauses are drafted with sufficient certainty and clarity; consider inserting ‘epidemics’ and/or ‘government action’ equivalent wording; and → Last but not least, always take careful advice on choosing the most suitable governing law and dispute resolution clauses for your contract at an early stage when you are negotiating or drafting the contract.
Wilson Antoon, Lianghua (Mike) Wang, and Paul Starr are all partners at King & Wood Mallesons in the firm's offices in London, Shanghai & Hangzhou, and Hong Kong respectively.
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WELLNESS
Nothing going on
Twiddling your thumbs
Niksen is “to idle, to lounge around, to sit around … to hang about, to do nothing much, to stand around”, writes Carolien Janssen in Niksen: The Dutch Art of Doing Nothing. People watching
Photo:People Images /iStock
Introducing ‘niksen’, the Dutch philosophy of doing nothing set to change the way you relax and recharge. Angela Tufvesson writes.
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he Danish introduced us to ‘hygge’, a feeling of cosy contentment that promotes enjoyment in the simple things in life. From Sweden, we borrowed ‘lagom’, the moderation philosophy that’s all about finding balance. And now, from the Netherlands direct to your iso-life, there’s ‘niksen’: the art of doing absolutely nothing. Niksen promises to help you de-stress, relax and recharge. It’s as simple as lazing in bed, staring out the window or listening to music – without any purpose whatsoever.
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at the park, laying on a deck chair in the backyard, daydreaming and literally watching paint dry all fit the bill. Importantly, doing nothing the Dutch way means there’s no purpose or end goal, no self-improvement, ambition or sense of achievement. Niksen is gloriously unproductive and indulgent. It’s not about using extra time at home during the COVID-19 pandemic to clean out your linen closet or learn to bake cinnamon scrolls – or feeling guilty because you haven’t ticked the jobs off your to-do list. “There’s much to be said for doing nothing without any goal or structure – to just be and to just allow whatever happens to happen,� says Dr Timothy Sharp, founder of The Happiness Institute. “Too many of us are so focused on always being constructive and productive that we’ve lost the art of doing nothing.� Whereas mindfulness focuses on being in the moment, niksen is more flexible, says clinical psychologist Dr Joyce Chong from The Skill Collective. “Mindfulness has an emphasis on being present in the here and now, whereas niksen does not have such temporal constraints,� she says. “If your
“What might appear to be doing nothing is, more often than not, reflection and contemplation, and in some ways a form of meditation,� says Dr Sharp. “And we know from much research that these all lead to fewer negative emotions such as stress and anxiety, as well as more positive emotions such as happiness and calm. Taking time out from busyness can also aid creativity and problem solving, as well as clarity of thought and decision making.� He says we can’t be on all the time, and when we try to be, we just end up exhausted, burnt out and unproductive. “The happiest and most successful people, including elite athletes and sportspeople, recognise the need to rest, recover and recuperate,� says Dr Sharp. “And notably, they also recognise that this time spent being ‘off’ ultimately allows them to be better ‘on’ when they need or want to be.�
A difficult balance
The trouble is, of course, that life is busy, whether you’re doing long days in the office or juggling working from home with home schooling during a global
– to instead focus on goals and achievement, which Taylor says can reinforce emotional hyperactivity.
Niksen in action
So how do you go from doing lots of things to doing nothing much at all? The most important thing to understand about niksen is that it takes practice. “If you’re a particularly active person who likes to move things along and keep things happening at a fast pace, accept that doing nothing is going to be something that’s uncomfortable for you,� says clinical psychologist Dr Glen Hosking, a lecturer in psychology at Victoria University. “It’s about resisting the urge to go back to those old familiar patterns of doing things. Accept that it’s going to take time to adjust. Normally people become much better at being able to do less if they gradually increase the amount of time they are engaging in the behaviour.� To help you adjust, Dr Chong suggests doing nothing in a location you don’t associate with productivity. “Sit in your backyard or balcony, rather than at your desk, and leave your phone somewhere
“There’s much to be said for doing nothing without any goal or structure – to just be and to just allow whatever happens to happen� mind wanders, you can follow it down that rabbit hole rather than bringing it back to the present moment as you would be encouraged to in mindfulness.�
Healthy mind
Research shows detaching from the day-to-day and spending time in simple reflection and contemplation are essential to health and personal growth. There’s even evidence to suggest that doing nothing is crucial for innovation and creativity, and that inactivity might spark new insights. Have most of your great ideas when you’re staring out the window or in the shower? This is why doing nothing is just as important to wellbeing – and, conversely, productivity – as doing something.
pandemic. Which means that niksen is more important for our wellbeing than ever – and more difficult to achieve. “As we remain busy and alert, more neural connections are formed through functional parts of our brains that impact on stress and emotional regulation,� says Mandy Taylor, director of clinical services at the Cairnmillar Institute. This can result in what psychologists call ‘emotional hyperactivity’, which makes it harder to find time for rest and memory processing. “The visible impact of this is an increase in anxiety and changes in mood,� says Taylor. When we try to offset this with healthful activities like exercise or other hobbies, it’s easy –and, indeed, acceptable
you won’t notice it,� she says. “When doing nothing in these new surroundings becomes easier, you can then practice niksen in locations that you traditionally associate with being productive.� Taylor recommends consciously setting aside expectations of achievement. “Remind yourself this is caring for your neurobiology,� she says. “We all have different forms of achievement guilt, and our cultures often do not value space to recharge or space to self care. Remind yourself that this practice will actually improve performance in times when you are busy and increase the sustainability of a busy lifestyle. “While we focus on times of not having a purpose, niksen has a clear purpose.�
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MINDSET
Swimming with sharks
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hich is the greater risk to life when you’re swimming in the ocean: shark attack or drowning? While news reports, viral videos, and films like Jaws might lead you to believe sharks are the biggest threat to an afternoon at the beach, you’re much more likely to die by drowning, even though it attracts a lot less attention. Why does your brain get it so wrong? This is “availability bias” at work – a mental shortcut that judges the probability of events by how quickly and easily examples come to mind. It helps you make decisions quickly, but they’re not always well-informed. Luckily, it’s possible to beat the bias and make better as well as more balanced choices.
Recall, not fact
Availability bias is everywhere. It’s why we buy a lottery ticket after reading stories about multi-millionaire winners. It’s a huge contributor to fear of 66
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Photos: Bbevren/iStock
Making decisions based on what pops into your mind first isn’t always reliable. Asian Jurist looks at why your brain confuses ease-of-recall with evidence.
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plane crashes. It’s why people are more likely to purchase insurance after a natural disaster. Medical professionals aren’t immune – one study found doctors who diagnosed two cases of a serious disease were likely to diagnose it again in the next patient even if that patient presented with a milder illness. And there’s evidence that investors make judgments about stocks they’ve heard about in the news, only to find they underperform in later years. At work, availability bias – a term first coined by psychologists Amos Tversky and Daniel Kahneman in a landmark 1973 paper – gets in the way of everything from rating suppliers you’ve used recently as superior to those you use infrequently, to fretting you’ll be made redundant because of news reports about people losing their jobs. It’s also why performance reviews are often based around one noteworthy project – that went well or, perhaps, not. The common thread is this: we often make decisions or cultivate opinions based on recall rather than fact, so we develop distorted perceptions of the likelihood of a shark attack, lottery win or job loss. If you can quickly think of examples of something happening, you’ll believe it’s more common. “Any time you’re trying to judge the probability of something happening, like getting run over by a car if you cross the road, or getting attacked by terrorists if you go to one place versus another, you’re relying on some form of availability bias,â€? says Ben Newell, a professor of cognitive psychology at the University of New South Wales.Â
“If you don’t immediately go to Google and look up a statistic, then you’re relying on some sort of impression that you form from your memory.�
Behind the bias
What causes availability bias? It’s actually pretty simple: efficiency. Making decisions – which we do 35,000 times every day – is hard work, and we often lack the time or resources to investigate all of the options relating to our choice. So the brain follows a basic principle along the lines of, ‘If I can remember it easily, it must be important’. “The task [of decision making] is very expensive to execute accurately, so our brain has developed a shortcut that is less accurate but works well enough that the decrease in accuracy is more than made up for by the cognitive savings in getting to an answer,â€? says Dr Brooke Struck, Research Director at The Decision Lab, a Canadian think-tank specialising in behavioural science. The trouble is that if we rely on faulty estimates of the probability of an event, our perceptions of risk and error may be skewed and lead us to make poor choices – like not swimming in the ocean for fear of a shark attack or buying a lottery ticket believing we have a realistic chance of winning next week’s jackpot.Â
Beat the bias
Resisting the pull of availability bias means examining the evidence before making a decision, rather than relying on your memory. “What you can do is think, ‘What is the basis for this decision? Am I doing that just because I saw something on the
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news about it this morning or someone mentioned something about it?� says Professor Newell. “It’s really about stopping and thinking, ‘Okay, well if I think this, what’s the evidence that I’m basing it on?’ Your ability to step back and think about the sample of evidence that’s in front of you, or how you might be searching through your memory to find the answer, is one way of overcoming this tendency to just go with the first thing that pops into your mind.� Checking the statistics on how many sharks attack people each year, the proportion of people who win the lottery each week, and how often planes crash before deciding whether to swim, gamble or fly is a great start. At work, Dr Struck says it’s helpful to rely on reports, data and other quantitative measures when it comes to measuring things like the performance of employees and external suppliers to keep availability bias in check. “At The Decision Lab, we track the time we spend on our client projects, our publication and various internal functions,� she says. “When it comes time to conducting performance evaluations, that time-tracking data is really useful. “For example, an employee stands out in my mind so clearly because of her exceptional performance on a certain project. “But when I look at the time-tracking data I get brought back to earth: that project was only 10 per cent of what she did last year. “So if I followed my intuition, which is heavily influenced by availability bias, I would neglect to pay attention to 90 per cent of the work that she does.�
“While news reports, viral videos, and films like Jaws might lead you to believe sharks are the biggest threat to an afternoon at the beach, you’re much more likely to die by drowning ...�
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LIVING
Live well with less
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ecluttering and minimalism are having a moment in Australia and it isn’t hard to see why. Our homes are among the largest in the world, yet we fill our living spaces with an unsustainable amount of clutter. A whopping 73 per cent of households report being cluttered with unwanted or unused possessions, and one in five people have
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so much stuff that there’s no spare room in their home. The best bit is there’s more to the decluttering craze than figuring out which items in your home spark joy and the perfect way to fold socks. Crucially, research shows living with less clutter offers a boost to your mental wellbeing, including less stress, improved focus and more energy.
Photo: Mukul Wadhwa/Unsplash
Minimalism is so much more than a design fad. Clearing out clutter and keeping your home tidy helps to reduce stress and improve mental wellbeing, writes ANGELA TUFVESSON.
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The trouble with clutter
Your living environment has a surprising amount of influence on how you feel. And when it comes to clutter, those feelings aren’t usually positive. Disorganised stacks of books and papers, mounds of clean laundry and piles of shoes strewn around the home can lead to stress and, in serious cases, anxiety and depression. One American study found levels of the stress hormone cortisol were higher among mothers with cluttered homes. Further research shows people with untidy living spaces are more likely to be depressed and fatigued. What’s more, sleeping in a cluttered room is associated with sleep problems, which increase the risk of psychological ill-health. There’s even evidence of other behavioural routes to mental health problems, says Dr Libby Sander, assistant
“A remarkable proportion of our brain is devoted to keeping track of where we are and what is happening to us there,� he says. “There is lots of individual variability – and those who might argue that ‘clean desks mean empty heads’ – but for the most part disorder in the environment can make it difficult for us to focus attention. “Generally, we find that focal attention is a rather taxing and limited resource, so anything that draws focus away from [that] can increase that tax.� Conversely, living in a decluttered, minimalist space removes disorder and stress, and gives you the mental energy to focus. One study that used FMRI (functional magnetic resonance imaging), which measures brain activity, found clearing clutter from the home resulted in a better ability to focus
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or a desk or table space so you can have that feeling of achievement. Tidy up your shoes or donate clothes you're not wearing anymore to charity.� Likewise, professional organiser Carol Posener from Get Organised says a minimalist space doesn’t have to mean white walls, bare f loors and next-to-no furniture. Rather, it’s about focusing on owning only things that you believe hold great value and refraining from purchasing things that don’t – and enjoying the spoils that come from owning less. “Styling your living space to become minimalist means you only need essential furniture items such as a lounge, armchairs, coffee table and minimalist entertainment unit – for example, white with drawers or cupboard doors – so visual distraction is avoided,� she says.
“Research shows living with less clutter offers a boost to your mental wellbeing, including less stress, improved focus and more energy.� professor of organisational behaviour at Bond Business School. “Quite a lot of research has shown that clutter has a range of effects from making us eat more junk food and watch more TV to making us less likely to exercise, which elevates our cortisol levels and, if we sustain that over time, can make us more anxious and depressed,� she says.
All in the mind
What’s the connection between a cluttered environment and unhappy mind? Put simply: disorder. “Our brains tend to like order and if we have these constant reminders of disorganisation – a pile of filing waiting to be done or things falling out of cupboards every time you open them – our brain gets cognitively drained and it reduces our ability to focus,� says Dr Sander. Of course, one person’s mess might be another person’s tidy, but neuroscientist Colin Ellard, a professor at the University of Waterloo in Canada, says the effects of clutter are fairly consistent.
and process information, as well as increased productivity. Plus, Dr Ellard says even the process of tidying up, particularly in spaces like a home office, can help. “Tidier environments are cognitively more tractable,� he says. “On an emotional level, it’s sometimes that act of clearing clutter that is therapeutic. Some might feel that such tidying activity is a form of procrastination, but this might not necessarily be true.�
Creating a minimalist home
Decided to take the plunge and declutter? Thankfully, Dr Sander says there’s no need to go full Marie Kondo. “Starting small is better than thinking you need to spend the next three days getting all your clothes out and deciding which ones bring you joy,� she says. “That may work for some people, but just starting where you are and focusing on your immediate living space can have a positive impact and hopefully motivate you to keep going. Clear a bench
“Surfaces are kept clear apart from a few treasured mementos to avoid creating a sterile, boring space. Living in a minimalist home reduces the amount of cleaning you need to do. In effect, less stuff equals less maintenance, and more time for you.� Once you’ve pared down your stuff, figuring out where to store it and sticking to said storage plan is the most effective way to maintain a minimalist aesthetic. “Create a place for everything so nothing is out of place,� says Posener. “Storage can be squeezed into the tightest spaces, such as under stairs and inside cupboards by adding more shelves.� Ultimately, she says living with less makes your home look better and helps you feel better. “Creating a minimalist home improves the visual appeal of your home spaces, furniture, art and collectables,� says Posener. “When you walk into a minimalist space you immediately feel calm and relaxed. You want this to happen every time you walk into your own home.�
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FITNESS
Walking the walk With more devices able to chide us for failing to reach daily fitness goals, is taking 10,000 steps a day necessary or excessive? AMY DALE explores why many of us suffer step count stress.
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t’s 3pm. A mountain of files stare at you as you simultaneously curse yourself for eating lunch at the desk and contemplate another afternoon coffee. Before you can Google “Is cold brew better for sleep than a long black?”, your Apple Watch vibrates impatiently. “Move!” it cajoles you, its pink ring pointedly unclosed. Another day looms with unclosed rings and a reminder from your iPhone that your step count is decidedly below average, or you have not done the required one minute of standing during 12 different hours of the day. Fitbits, wearable devices, trackers and watches can be dismissed as well-meaning marketing ploys, but in truth such electronic encouragement is much closer
To increase incidental exercise, Dr I-Min Lee, professor of medicine at Harvard Medical School, recommends:
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to the foundation of the 10,000 steps a day requirement. As the 2020 Tokyo Olympics approaches, it is apt to revisit where the basis for taking 10,000 steps a day began – in the aftermath of the success of 1964 Tokyo Olympics, when Japanese marketers behind the first wearable step counting device dubbed it the manpo-kei, which translates as “10,000 step-meter”. It was a catchy campaign now embedded in popular health mantras, like drinking eight glasses of water a day and never skipping breakfast. However, its evidence base is shaky and recent research suggests those five figures do not add up to a magic number. Emmanuel Stamatakis, Professor of
Taking the stairs instead of the lift.
Getting off one bus or train stop earlier and walking the rest of the way.
Physical Activity, Lifestyle and Population Health at the University of Sydney, says the success of the 10,000-step myth shows the value of a “measurable, simplistic and easy-to-communicate message”. “With health messaging, we tend to over-complicate and there is a straightforwardness and ease of measuring 10,000 steps a day … but, strictly speaking, it is not evidence-based,” he says. Around the time of the manpo-kei’s release, researchers from Kyushu University determined that Japanese people at that time took on average between 3,500 and 5,000 steps a day – and that the health benefits could multiply if they increased that to 10,000. However, later research from Harvard Medical School
Opting for the first parking space you see, not the one closest to your destination.
Doing chores in stages i.e. doing a few trips to bring the groceries in from the car.
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of cardiovascular illness begins to climb. Stamatakis advises aiming for between 7,000-7,500 steps a day, half of which are of a moderate intensity. “10,000 steps is a very ambitious target for most people and very few people [with desk jobs] can meet it,� he says. He describes moderate intensity as “you could carry a conversation but would not be able to sing�. For unfit people, being at the mercy of the device’s helpful instructions to “stand� and “move� is going to have greater benefits than encouraging someone with an already well-rounded gym routine to add a few hundred steps to their day. But
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Stamatakis says there are benefits to be had in “getting a bit out of breath�, even if only for a minute or two. “For someone who is very unfit or very sedentary, walking at a pace of 120 steps a minute is going to be of a vigorous intensity,� Stamatakis said. “Walking is misunderstood, because people think it cannot reach vigorous intensity, but it can. If you look for opportunities during the day to get out of breath by walking, even just by picking up the pace for a couple of minutes, that is a good thing.�
“Once a person takes more than 7,500 daily steps, the health benefits plateau and there is no discernible advantage ... by taking the extra 2,500.�
Photo: MileA/iStock
considered whether the term manpo-kei had been used simply because the Japanese character for 10,000 loosely resembles a walking man. It is clear that taking 10,000 steps a day, which equates to about eight kilometres or one hour and 40 minutes walking depending on your stride and pace, has a clear benefit over barely cracking three digits on a step tracker. And data suggests we can do better on the physical activity front. A health survey published by the Australian Bureau of Statistics in 2018 revealed that more than 43 per cent of adults aged 18-64 described their day as “mostly sitting� and the average walking time for an adult was just under 25 minutes a day. But research from Harvard Medical School, published in 2019, indicates that once a person take more than 7,500 daily steps, the health benefits plateau and there is no discernible advantage or increased life expectancy gained by taking the extra 2,500. So rather than aimlessly wander, a brisk 30-minute lunch break walk would have more benefit than taking a few extra steps to the kitchen to appease a wrist device. This would also assist with breaking another bad habit for which Australian office workers are notoriously known – wolfing down lunch at the desk and not taking even a quick break. Experts mostly agree that quality triumphs over quantity here. This is particularly important for those in or approaching their forties, when the risk
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CITY GUIDE
From Osaka to Tokyo On the bullet train and off the beaten track
For a holiday that combines world-class food, scenery, shopping, and bars with unrivalled hospitality and generosity, Japan simply cannot be beaten. AMY DALE travels west to east across the island of Honshu to explore some of the most famous cities and a few hidden gems in between.
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okyo, Osaka and Kyoto have long been recognised as Japan must-dos, and for good reason. However, if you are holidaying – or dreaming of holidaying – for a few weeks it would be remiss not to seize the benefit of arguably the best rail system in the world and make a few pitstops off the well-heeled track. Once activated, a Japan Rail [JR] Pass enables travel on both the shinkansen [bullet train] as well as JR lines for up to three weeks, saving you from the trouble of storing tiny JR tickets in your pocket or risk being trapped at a station gate. JR passes must be purchased before arriving in Japan and activated once visitors are ready to hit the railroad. Even if you’re not a trainspotter or engineering buff, it is impossible not to be impressed by the shinkansen’s stunning capability. Trains that arrive to the precise second indicated on the timetable. Speed that almost knocks the wind out of you if you stand a little too close to the edge of the platform – and startles once more when you realise just how much of the country you have traversed in a mere matter of hours. There truly is no better way to explore all of Japan has to offer – and the smaller cities provide the necessary balance to the sensory overload that inevitably meets you in Tokyo.
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Kanazawa
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TOKYO Yokohama
↖ Hakone ↖ Atami
Kyoto
Osaka
Osaka
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Pack your appetite for Osaka. It is after all the unofficial food capital of Japan. As a neighbour to Kobe, the region of the world-famous beef, no trip to Osaka is complete without sampling the signature steak. Skip the Yakiniku M chain, which is beginning to fall into tourist trap territory and trust that Google translate and trademark Japanese hospitality will help you with the ordering process in a restaurant without an English menu, and in the process deliver you a more authentic experience of the revered marbled steak. The no fuss local favourite HiHi Town complex has a top-notch food basement, including a small no-name Kobe restaurant, where diners choose the preferred cut of the meat of the day and, critically, what beer to wash it down with. Next door is the slightly fancier shabushabu Senmon Nikuju Ueroku, a cook your own meat at the table style affair with an array of vegetables to select to blend into the
soup. Don’t forget to crack the table egg and stir in for added silkiness.
Kyoto
Just 15 minutes from Osaka by shinkansen (services between the two cities operate throughout the day) is the pretty temple oasis of Kyoto. The Mitsui Garden Hotels are a Japanese-only chain, where tiny boutique rooms are dwarfed by generous hospitality, including lavish complimentary breakfast buffets and on-site bathhouses. Its Kyoto Shinmachi outpost reflects the natural beauty of its city and its architecture is a tribute to the many kimono merchants who once sold their wares on its grounds. Nishiki Food Market, a large fresh food outlet in the centre of the city known as “Kyoto’s kitchen”, is an essential stop. With more than 100 outlets, there
Photos (clockwise from top lef t): Sean Pavone Photo/iStock; Tdub303/iStock; Gyro/iStock
Pack your appetite for Osaka. It is after all the unofficial food capital of Japan, where residents take both comfort and joy in a steaming bowl of udon (thick wheat noodles in a mild dashi broth) or a freshly battered tayoyaki (deep fried balls of octopus meat) and joke “eat until you drop.” Osaka’s gastronomic skill also includes serving up some of the best coffee in all of Japan. The Brooklyn Roasting Company has three locations (in the popular hub of Namba, and Kitahama and Kishiwada) and offers a strong long black, well balanced cappuccino and refreshing cold brews. Small packages of their signature blend are also available for takeaway. The Daiwa Roynet Hotel in Uehommachi is in a great location, roughly ten minutes from the main tourist hub of Umeda, and every stay comes with a complimentary breakfast at the restaurant next door. Guests can choose from three options – a traditional Japanese breakfast that comes with a freshly grilled piece of mackeral, rice, miso and cabbage or opt for more Western options like a fried egg (its white crispy, the yolk delightfully runny) and sausage. Upon check-in each new arrival receives a face mask to soothe the skin from a long journey, coffee grounds and tea. The rooms are cosy, to say the least, but the bed is comfortable and the water pressure satisfactory. Close by, also in Uehommachi, is the superb whisky and cocktail bar Dramhouse The Root, where Elvis and blues play on repeat and the drinks simply can’t be beat. Their signature negroni comes with an eye poppingly large single cube of ice and patrons are served small bowl after small bowl of homemade salty bar snacks.
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↖ Tourists stroll under the famed advertisements in Dotonbori, Osaka. ↘ A shopkeeper selling unagi – grilled eel – at Nishiki Food Market in Kyoto. ↓ More a cat person? There are plenty of rows of manekineko, the famous Japanese cat figurine said to bring good luck (something we can all use a little of in 2020).
are plenty of places to stop for snacks, including Japanese sweets and dried seaweed. Although the umami sensation of the dishes makes you want to dive in immediately, it is respectfully (is there any other way in Japan?) requested you don’t eat whilst walking through the market. There are a handful of small restaurants and bars if you visit at lunchtime.
A tea ceremony is a great place to drink in the delicate and thoughtful local culture, and if you’re a precise drinker the careful 'just so' preparation and stirring of the matcha powder will delight. While tempting to send your Instagram story into a frenzy with picturesque opportunities at every turn, many residents respectfully ask visitors to keep their happy snaps to a minimum in this city. In recent times Kyoto has become overrun by tourisms, which led to a crackdown on photography in the historic neighbourhood of Gion where geishas stroll through the streets.
Kanazawa
One of the most popular souvenirs from Kanazawa, nestled roughly halfway between Osaka and Tokyo and the capital of the Ishikawa Prefecture, is gold leaf.
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It perfectly encapsulates this delicately beautiful city, where everything – from shops, to restaurants, hotels and immaculately kept ponds, streams and gardens – are cared for with a pristine level of thoughtfulness and is best appreciated folded into crisp white soft service ice cream. Get your bearings with a stroll through the Kenroku-en Garden, located at the heart of Kanazawa and once the outer private garden of the neighbouring Kanazawa Castle. This is a city where it is worth lifting your aversion to souvenir stores. Kataoka Kozando Store is a case in point. Forget poor quality magnets and obnoxious t-shirts; here you can take home glass blown artistic coasters, porcelain teacups and dishes, or even a hand-painted sake glass. If you are lucky you may also get a greeting from Sora, the owner’s friendly pooch and store mascot. More a cat person? There are plenty of rows of maneki-neko, the famous Japanese cat figurine said to bring good luck (something we can all use a little of in 2020). Sweet tooths will also appreciate another local treat, matcha marshmallows, which are like biting into fluffy green pillows of delight. Sample them just past the Kenroku-en Garden, in a little shop marked by a canvas green sign, almost the same colour as its signature product, thoughtfully labelled “Japanese Maccha Sweets”. Nearby is the Kanazawa Contemporary Museum of Art, where no visit is complete without lingering over Leandro Erlich’s “Swimming Pool” installation. Kanazawa is also home to some of the best seafood in Japan, which is no easy accomplishment. The speciality is the snow crab, and prices for the luxuriously sweet meat are far more reasonable than Tokyo or Osaka. Once done, drink sake from the empty brown shell. Itaru Main Branch is a local favourite, and in a marine indication of the gender pay gap, female snow crabs are cheaper than their male counterparts. The Kanazawa Sainoniwa Hotel is about a 15-minute walk from Kanazawa Station and just a few minutes by readily available taxis. Its breakfast buffet is so expansive it feels like all the available
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↖ View above Lake Ashi in Hakone. ↑ An engine driver stands for a photo in front of the Shinkansen. ← View of Mt Fuji from a ryokan, a traditional Japanese inn.
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Photos (clockwise from top): Guillermo Pérez/Unsplash; Panuwat Dangsungnoen/iStock; U.Ozel.Images/iStock
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dishes would struggle to fit on a football field. Arrive hungry and expect to return to fill your tray with perfectly doled out portions of almost anything you can imagine; beans tossed in a sesame dressing, omelettes made to order with your choice of mushroom, cheese or other chopped vegetables, perfectly circular pancakes, ice-cream and fresh fruit. In the event you don’t stuff yourself silly at breakfast, there is a 24/7 tea, coffee and sweet station available – a perfect place to sit with a cuppa and gaze out over the lush hotel garden. Feel like an onsen but don’t wish to stray from this oasis? There is one on site, with plenty of detailed instructions on the dos and don’ts, lest you be exposed in more ways than one. Some easy rules: give yourself a proper rinsing before stepping in the water and skip the soaping up until afterwards. Like a sauna, the heat hits your body quickly so don’t expect to soak for hours on end.
Hakone
Let your muscles dissolve in this onsen paradise but keep your eyes open for the sensational views of Mount Fuji. Hakone – easily accessible by bullet train from both Kyoto and Tokyo – has been a spa destination for centuries. Those wishing to visit multiple onsens would be advised to hire a car as transportation options between venues is scarce. Most onsens allow for communal bathing but in segregated areas, so if travelling with a different-sex partner you’ll have to part ways before you bathe. Hakone Yuryo does offer a selection of private onsens where couples or small parties of the opposite sex can enjoy the springs together. An hour will allow plenty of time to indulge in the pre-bathing rituals and soak in water up to 40C. Yuryo also has cold plunge pools available at a chilly 14C to get the blood pumping before warming up in the on-site sauna. Hakone is the ideal location to stay in a ryokan, a traditional Japanese inn. Unlike the drop your bags and leave the room to explore, a ryokan is intended to be enjoyed as an element, not merely a facilitator, of your stay. This involves
dressing in a yukota robe when outside of the room and sitting down to an elaborate kaiseiki dinner, where the emphasis is on in-season ingredients and immaculate presentation over multiple courses. Perfectly content, guests then retire to their room for a replenishing night’s sleep atop a futon-mattress on the floor. Don’t panic, feedback on this arrangement is overwhelmingly positive, and most guests report a comfortable slumber.
Atami
With a look of old Hawaiian glamour, European seaside town charm and just a touch of an abandoned theme park vibe, Atami has just enough ingredients to make for a satisfying day trip. The
Many parts of Atami are largely a relic to its bubble economy heyday town, 45 minutes from Tokyo by bullet train, was once a widely popular weekend destination for cashed-up folk living the life in Japan’s bubble economy of the late 1980s and early 1990s. When the bubble burst, the crowds evaporated. Many parts of the town are now largely a relic to this heyday, and there are more than a few shuttered-up shops. One of its more bizarre attractions is Atami Castle, built in the late 1950s purely as a tourist attraction not a Monarch manor. The chef at the wonderful Sushi Ko restaurant, tells solemnly, in case a visit was planned, “it has no history.� Better to stay indoors and feast on a collection of his freshest, practically still swimming, tastes of the sea, served on
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stunning ornamental plates and washed down with a miso soup imbued with clams. For the best selection, opt for the omakase (chef’s choice). If you do decide to embark on the steep climb up to the castle entry, you can also swing past the quiet and colourful trick art museum (there is the discarded amusement park feeling creeping back in) or just perch on one of the picnic tables and admire the sweeping views of the Pacific Ocean. Atami is admired for its selection of onsens, and Izusan Onsen is the pick if you feel hard-pressed to choose between the many scattered among its hills. Izusan is one of the oldest in the country, and frequently ranks in the top three for both its indoor and outdoor baths. The city is compact enough to fit in all the activities you want in a day, but if you do fancy staying overnight, the Hotel New Akao Right Wing is only a ten minute ride from the JR station and, while its pale pink and abandoned interior may inspire a The Shining like dread in you, it has very comfortable rooms and an onsite bathhouse and bar.
Yokohama
The second largest city in Japan is so much more than a commuter post to Tokyo (it is less than half an hour by train). Centuries before phrases like social distancing, f lattening the curve and self-isolation etched themselves into global rhetoric, Yokohama was the first Japanese city to lift the nation’s self-isolation requirements towards the end of the Edo Period [1603-1867] and open its port up to foreign trade. Stop off on the last leg of the journey to Tokyo or add it to the itinerary as a day trip. Its Chinatown precinct – one of the largest in the world with more than 250 restaurants and shops – is worth a visit if you want to skip sashimi and ramen for at least one meal. If you are looking for a quirky adventure, the Cup Noodles Museum, which as the name suggests is a tribute to the instant meal, is fun and breezy and tracks the humble origins of chicken ramen, from which grew a global food phenomenon.
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LAWASIA
Since its inception in 1966, LAWASIA has fought for the rule of law, protected human rights, and expanded business opportunities across the Asia Pacific.
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Sections
Business Law Section business.chair@lawasia.asn.au Business Law Subcommittees Alternative Dispute Resolution Anti-Trust & Competition Law Asia-Europe Banking & Finance Communications, Technology & Data Protection Corporate Securities & Investment Energy & Resources Environmental Law Franchising Insolvency Law
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Intellectual Property One Belt, One Road Real Estate & Transactions Taxation Family Law & Family Rights Section: family.chair@lawasia.asn.au Human Rights Section: humanrights.chair@ lawasia.asn.au Judicial Section*: judicial.chair@lawasia.asn.au Law Management Section: lawmgt.chair@lawasia.asn.au *Open to members of the judiciary only.
Committees
Constitutional and Rule of Law Committee: conlaw.chair@lawasia.asn.au Criminal Law Committee: crimlaw.chair@lawasia.asn.au Employment Law Committee: emplaw.chair@lawasia.asn.au Legal Professional Indemnity Insurance Committee: pii.chair@lawasia.asn.au Moot Competition Committee: moot.chair@lawasia.asn.au South Pacific Committee: business.chair@lawasia.asn.au Young Lawyers Committee: younglawyers.chair@ lawasia.asn.au
2019–2020 Executive Committee
President Chunghwan Choi (REPUBLIC OF KOREA) President-Elect Melissa K Pang (HONG KONG SAR) Immediate Past President Christopher Leong (MALAYSIA) Vice Presidents Justin Dowd AM (AUSTRALIA) Shyam Divan (INDIA) Steven Thiru (MALAYSIA)
Committee Members Dr Gordon Hughes AM (AUSTRALIA) Yin Baohu (CHINA) Dr Pinky Anand (INDIA) Prashant Kumar (INDIA) Isomi Suzuki (JAPAN) Chisako Takaya (JAPAN) Eric Eunyong Yang (REPUBLIC OF KOREA) Yap Teong Liang (SINGAPORE) Upul Jayasuriya (SRI LANKA) Kaushalya Nawaratne (SRI LANKA) Angela Lin (TAIWAN) Secretary-General Michael Tidball (LAWASIA)
Secretariat
Head Office Suite 1101, Level 11 170 Phillip Street Sydney NSW 2000 AUSTRALIA Phone +61 2 9926 0165 Fax +61 2 9923 9652 Email lawasia@lawasia.asn.au Website lawasia.asn.au Secretary-General Michael Tidball Membership & Administration Officer Kim Shazell lawasia@lawasia.asn.au Conference & Events Manager Magda Imre conference@lawasia.asn.au Conference & Events Coordinator Shanna Venter conference@lawasia.asn.au Communications & Marketing Coordinator Julie Do lawasia@lawasia.asn.au
L AWA S I A
STATEMENT
Statement of concern
Illustration: Russell Tate/iStock
On emergency measures adopted during COVID-19 from Chunghwan Choi, President, LAWASIA.
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AWASIA notes that on 11 March 2020, the World Health Organization declared the global outbreak of COVID-19 a “pandemic.” As of 15 April 2020, there are over 1,982,552 cases and 126,753 deaths worldwide. Many countries have adopted extraordinary measures to contain the highly contagious and deadly illness, including lockdowns, social distancing, and aggressive measures for contact-tracing. LAWASIA is a regional association of lawyers, judges, jurists and legal organisations, which advocates for the interests and concerns of Asia and the Pacific legal profession. LAWASIA is deeply concerned that certain measures States are adopting are excessive to counter the pandemic, and violate binding obligations under international human rights law. LAWASIA calls on States to ensure that all measures adopted are appropriately balanced against the rights being violated, and that States adhere to their binding human rights obligations while tackling the spread of the virus. LAWASIA notes, in particular, that the legal profession plays a fundamental role in all justice delivery systems, and in this context, to monitor any emergency or extraordinary measures adopted by States. LAWASIA calls on States to ensure that the rights of members of the legal profession, including human rights defenders, are protected, and that they are enabled to perform their professional functions and their work towards protecting and promoting human rights. LAWASIA echoes and adopts the concerns raised by international human rights organisations and treaty bodies, both in regard to the immediate measures adopted to combat the pandemic, and the long term measures needed for recovery.
A. International law on emergency measures
LAWASIA draws attention to international human rights law on derogations, which, while permitting derogations in case of a “public emergency threatening the life of a nation,” mandates that each measure adopted be in accordance with the core human rights principles of necessity, 80
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strict proportionality, and non-discrimination. These measures must be narrowly tailored to the purpose, have a basis in law, must be publicly announced, be limited to the time, geographical extent and material scope required to counter the risk, and must be subject to effective internal and external oversight. Reasonable accommodations must be made to ensure vulnerable persons’ right to life is protected. Additionally, all State measures should be returned to the status quo as soon as possible once the impacts of the emergency have subsided. Under the principle of non-retrogression, States are not permitted to roll back, or reduce human rights protections that have already been provided. LAWASIA also draws States’ attention to customary and statutory international law obligations which are non-derogable, notwithstanding a state of emergency. These include the right of non-refoulement, the right to life,the right against arbitrary cruel or unusual treatment or punishment,the right against slavery or servitude and the right to freedom of conscience, and certain core economic and social rights under the ICCPR. This also includes other peremptory norms of international law, for instance, violations
of humanitarian law by taking hostages, imposing collective punishments, arbitrary deprivations of liberty or deviating from fundamental principles of fair trial, including the presumption of innocence. LAWASIA calls on States to ensure that each emergency measure adopted, whether de facto or de jure, is necessary, proportionate, non-discriminatory, and timebound, to be wound back once the emergency is over, for example through the incorporation of sunset clauses. To ensure adequate monitoring and access to justice, States must also ensure that lawyers and human rights defenders are permitted to perform their normal functions and carry out their work.
B. Protection of civil and political rights
LAWASIA takes serious note of reports of police brutality to enforce the lockdowns, and reminds States that under international human rights law on the use of force, all security forces must abide by the principles of legality, necessity, proportionality, precaution, and non-discrimination. LAWASIA calls on States to ensure that decisions to impose total lockdowns and to ban persons from open areas are
L AWA S I A
based on the strongest scientific evidence available, and enforced with a minimum of force. Measures curtailing privacy, for health surveillance and monitoring, should be specifically related to and used for aims specific to public health. They must be limited in both duration and scope to respond to the particular situation. Where limitations on freedom of information are required to counter misinformation and ensure the availability of accurate information relating to COVID-19, States must also ensure that these measures are purpose-limited and are not used to stif le dissent or target human rights defenders, journalists or whistle-blowers. Additionally, with many public services (including education) moving online, access to the internet must be ensured and restored, where curtailed.
C. Protection of economic and social rights
LAWASIA notes that the pandemic has highlighted the interdependence and indivisibility of all human rights. LAWASIA draws attention to the Universal Declaration of Human Rights, and ICESCR, under which all persons have a right to a standard of living adequate to ensure the health and wellbeing of
themselves and their family, including access to food, medical care and necessary social services, the right to social security in the event of unemployment, sickness, disability, widowhood, old age or other circumstances beyond their control. LAWASIA notes that States are under a positive obligation to ensure access to the minimum core content of rights. Even during emergencies, any changes in policies or measures must meet the principles of proportionality, limited temporality, necessity, non-discrimination, and genuine participation of affected groups. LAWASIA calls on States to ensure that people have access to, at least, the minimum core content of rights, such as a social protection floor. This includes the protection of all persons from starvation, ensuring access to primary education, emergency healthcare, and basic housing, as well as to clean and safe running water. Adherence to the principle of non-discrimination, while ensuring access to life-saving health care, is particularly crucial during this emergency.
D. Protection of vulnerable groups and minorities
LAWASIA draws attention to States’ obligation to protect vulnerable groups and
Illustrations: Russell Tate/iStock
LAWASIA calls on States to ensure that all measures adopted are appropriately balanced against the rights being violated ...
minorities, and to ensure that the specific needs of persons experiencing conditions of marginalision are taken into account. Specific measures should be contemplated for those persons from marginalised groups, including migrant workers, indigenous persons, refugees, women, persons with disabilities, LGBTQI persons, persons living in poverty, and persons in detention. We note, for example, some vulnerable persons may be at a greater risk of contracting COVID-19 because of care roles and limited ability to be socially distant. Due to intersecting conditions of marginalisation, some vulnerable persons may also have a reduced ability to cope with containment measures. For instance, we consider a gender sensitive focus is required, given what UN Chief Antonio Guterres called a “horrifying increase in rates of domestic violence since the containment measures have been adopted.” Persons with disabilities, who might rely on external caregivers, must also be provided with reasonable accommodations. LAWASIA calls on States to ensure that people with vulnerabilities have access to adequate social security, enabling them to counter the impact of COVID-19 and related containment measures, and that these measures follow a human rights-based approach, incorporating the principles of non-discrimination, participation, empowerment and accountability. LAWASIA also calls on States to counter any expressions of COVID-19-related xenophobia, including ensuring that the internationally recognized name of the virus is used rather than geographic references of origin, or to particular communities alleged to have transmitted the virus, as this can isolate and stigmatize individuals and can have serious consequences for people’s lives and livelihoods.
E. Conclusion
LAWASIA recognises that international cooperation is both an obligation and an essential need to counter this crisis, and calls on States to come together in solidarity to ensure that human rights are strengthened rather than weakened, while responding to this challenge. Statement issued on 27 April 2020.
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CONFERENCE
Harmony in Hong Kong Hundreds of lawyers from around the world descended on Hong Kong in November 2019 for an invigorating meeting of minds, ideas and friendship at the 32nd LAWASIA Conference.
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“The COVID-19 pandemic is a test to us all and to our societies and systems ... It is precisely in time of crisis that core human rights values can help us steer the best course. We need to come together and continue working for the common good with conviction and determination.” – Ms Michelle Bachelet Jeria, United Nations High Commissioner for Human Rights. Message delivered on the International Day against Racism, 21 March 2020.
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Photo: Government of Chile/Wikimedia Commons
I N S P I R AT I O N
8th Family Law and Children's Rights Conference 11 – 14 July 2021 | Singapore For more details visit
www.wcflcr2020.com
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