2015 The Full Bench Ed 2

9. Food, Glorious Food – Cecile Bester 11. Stranded at Sea: A repeated Histor – Ling McGregor 13.

Navigating the Law of the Sea – Sage Nemra 15.

Blackwater and the rise of Private Security Companies in International Law – Adriana Abu Abara 16. A brief look at the executions in Bali: Clemency, Critiscim and Constitutional Considerations – Jason Corbett 18. Whether our Software Needs an Update – Joseph Andriano 21. An Inconvenient Truth – Katharine Stanley 23. Disease and Governance: a Primer on Biosecurity – Robert Guzowski 25. Retention vs Abolition: An absolute right to life? – Kizzy Bagga 27. The Modern Day Slave – Alex Epstein 28. Animal Personhood: A Primal Consideration? – Liam Fairgrieve 29. Once the Dust Settles: Humanitarian Aid, Human Rights and International Law following Natural Disasters – Dylan Barber 32. Truth and Reconciliation in Cambodia: A work in Progress – Jack Fogl 36. Spotlight on Social Justice – Diana Semaan (In)securities, International Protection and the Law

TFB 2015 [Edition 02] the full bench Editor in Chief Nicola Colagiuri Editors Kieran Gair Adriana Abu Abara Neeharika Maddula Bianca Newton Designer Simon Blanckensee UTS Law Students’ Society ©

With Special Thanks to

This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society.

Enquiries are to be addressed to the publishers.

Vanessa Jiang, Vice President (Education), and Ashleigh Barnes, President of the UTS LSS, for their guidance, support and contribution to the second edition of The Full Bench in 2015.

Disclaimer

Daniel McKenzie, Susie McKenzie and Co. Kwik Kopy Neutral Bay 6/129-133 Military Rd, Neutral Bay, NSW 2089 Tel: (02) 9953 3077 Fax: (02) 9953 0530 www.kwikkopy.com.au

All expressions of opinion published in TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest.

Images and illustrations All images, unless provided to TFB personally for the purposes of this publication, were sourced from the photo sharing website ‘Flickr’, with attribution provided within the text to specific publishers.

With Further Thanks to

The Full Bench (tfb) is published in Sydney quarterly by: UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room CM5A.01.08, City Markets Campus, Cnr of Quay Street & Ultimo Road Tel: (02) 9514 3448 Fax: (02) 9514 3427 www.utslss.com

The Full Bench 2015 Edition 02

(In)securities, International Protection and the Law Winter 2015

6.

From the UTS LSS – President and Vice President (Education)

26.

Disease and Governance: a Primer on Biosecurity – Robert Guzowski

7.

Editorial

28.

8.

Editors’ Question

Retention vs Abolition: An absolute right to life? – Kizzy Bagga

10.

Food, Glorious Food – Cecile Bester

30.

12.

Stranded at Sea: A repeated Histor – Ling McGregor

Once the Dust Settles: Humanitarian Aid, Human Rights and International Law following Natural Disasters – Dylan Barber

14.

Navigating the Law of the Sea – Sage Nemra

32.

The Modern Day Slave – Alex Epstein

16.

Blackwater and the rise of Private Security Companies in International Law – Adriana Abu Abara

34.

Spotlight on Social Justice – Diana Semaan

36.

Truth and Reconciliation in Cambodia: A work in Progress – Jack Fogl

38.

40.

Animal Personhood: A Primal Consideration? – Liam Fairgrieve

42.

Stop. Hammer Time.

44.

10 Words or Less

18.

20.

24.

A brief look at the executions in Bali: Clemency, Critiscim and Constitutional Considerations – Jason Corbett Whether our Software Needs an Update – Joseph Andriano An Inconvenient Truth – Katharine Stanley

From the UTS LSS From the UTS LSS President

From the UTS LSS Vice President (Education)

6

Welcome to the second edition of The Full Bench for 2015, the quarterly academic journal proudly brought to you by the University of Technology, Sydney Law Students’ Society (UTS LSS).

In our everyday lives, we are constantly faced with potential challenges that our Australian law and order system manage and regulate so that we can live our lives feeling safe and secure. Further, in the event of insecurity, we can be recompensed and justice served. We have insurance for our goods, we have policemen on our streets, and we have regulators holding our merchants and employers to account.

It is thus difficult, if not troubling, to witness insecurity so large that our law cannot meet it.

Perhaps even more so for law students, we do not want our law to fail. Natural disasters in Nepal, health epidemics in West Africa, crimes contrary to humanity carried out by criminals in various criminal justice systems that we cannot understand in Indonesia, put the law to the test. Importantly, it is not just our law, rather a matrix of laws domestic and international striving to find a just solution that promotes the sanctity of human security.

The following pages explore the recent trials and

tribulations that International Law has risen to protect. The quality of their protection is assessed by our valued contributors, your peers, to whom we are indebted. It is their words that fill this publication, their thought provoking ideas that provide a check and balance on International law. They are accompanied by the designs of the talented Simon Blanckensee – who we also thank for his work. Of course, our publication would not be possible without the UTS LSS Publications Director and TFB Editor in Chief Nicola Colagiuri, and our Vice President (Education) Vanessa Jiang. Last but certainly not least, thank you to our sponsors for this edition, Herbert Smith Freehills and Clayton Utz – your commitment to providing our gifted students with a place to inspire is much appreciated.

As exams approach, TFB provides the perfect study break. I hope this edition provides the perfect opportunity to expand your view on the workings of international law in the face of insecurities. Happy reading!

International protection is a critical issue at this time. Only over the past few years, there have been natural disasters, epidemic scares, human rights uproars, online scams and war-related security concerns. Moral panic has of course been the cause of both mistakes and positive changes on an international scale, however given how much can be at stake in any decision, it is more important than ever before to ensure that we work together, across country boundaries to achieve the best possible result. We must learn to appreciate perspectives of others while also maintaining what is best for Australia.

Security is fundamental to our day-to-day existence.

Without it, fear and panic would be the foundation of every judgement call, inevitably leading to undesirable results. Where the law has not yet developed sufficiently to guide the decision-making processes of relevant bodies, these gaps have given members of the public the stance to criticise or affirm the outcomes. This publication and its contributors seek to comment on the strengths

and weaknesses of the existing law, and to identify which areas need development.

It is certainly worthwhile to discuss what regulative measures are currently in place as we constantly move forward.

I reiterate the words of Ashleigh when I say a huge thank you to all our contributors, our wonderful sponsors, our designer, and of course, you – our readers! A sincere thank you must also go to The Full Bench subcommittee, Neeharika Maddula, Bianca Newton, Kieran Gair and Adriana Abu Abara. Thank you to President Ashleigh Barnes, and Nicola Colagiuri, the most hard-working and passionate Publications director of all time. We hope you enjoy this edition.

(In)securities, International Protection and the Law

Ashleigh Barnes President UTS Law Students’ Society

Vanessa Jiang Vice President (Education) UTS Law Students’ Society

Editorial ‘Only world law can assure progress towards a secure and peaceful community’ – Albert Einstein Welcome to the second edition of The Full Bench for 2015!

2015 marks the cessation of the Millennium Development Goals (‘MDGs’) that were established in September 2000. These eight goals were an explicit recognition of the reality that a large proportion of people in the world were deprived and poor. It was a statement of good intentions that sought a time-bound reduction in poverty to improve the living conditions of those deprived and excluded.

It was an attempt to place this persistent problem, until then a largely national concern, on the development agenda for international cooperation.

Taken together, these MDG attributes introduced a mechanism, even if implicit, to monitor progress in the pursuit of the stated objectives. Thus, in principle, national governments could be held accountable by their people, just as the international community could be held accountable by national governments. The UN is now in the process of constructing a post-2015 agenda to re-evaluate the effectiveness of the MDGs and formulate a framework for the future.

In line with this current period of reflection and evaluation by the international community, our second edition: ‘(In)securities, International Protection and the Law’, sees students examine the protection afforded by international laws and the extent to which human security is promoted within a global context.

Our contributors have produced evocative, well-researched and informative pieces for our readers.

Pages 18-19 features an examination of the executions in Indonesia by Jason Corbett. Turn to pages 26-27 to read Robert Guzowski’s incisive investigation of the relationship between governance and epidemics. Dylan Barber has delivered a poignant piece about humanitarian aid and the recent earthquake crisis in Nepal now that the dust has settled (pages 30-31). Don’t forget to check out our ‘Stop.Hammer Time.’ segment (pages 40-41) to see how Bianca Newton argues against the Responsibility to Protect doctrine.

First and foremost we would like to thank our creative and articulate contributors for all their hard work. Without the dedication of students, TFB would not be what it is. We’d also like to thank the UTS LSS President, Ashleigh Barnes, and the Vice President (Education) Vanessa Jiang for all of their support and assistance. Simon Blanckensee, our wonderful designer, is also deserving of a huge thank you for bringing each edition of TFB to life.

Be sure to ‘Like’ The Full Bench on Facebook to keep up-to-date with all TFB related news and ways to be involved with TFB this year!

It is often said that the law, especially on an international level, is the greatest mechanism for change.

That is not in contention. What is in contention is whether this is being utilised positively or negatively.

In reading our second edition, we hope that you will be prompted to answer the aforementioned question, for yourself.

Nicola, Neeharika, Adriana, Kieran and Bianca.

(In)securities, International Protection and the Law

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Editors’ Question This year, Indonesia executed two Australian nationals for drug crimes: a violation of the right to life. Australia cut aid to Indonesia by 40%, resulting in massive cuts to health and sanitation programs, and basic water provision, which is itself a recognised human right.

Australia’s contrasting reactions to the two - moral outcry vs silence - raises the question: are human rights the privilege of the western world?

Nicola Says: Some argue human rights in and of itself are a ‘western concept’, in that the modern framework is largely derived from international treaties and agreements, birthed by western nations. How then, (despite the name given to the most renowned instrument governing human rights, The Universal Declaration of Human Rights) can we classify human rights as being ‘universal’?

A question that demands greater investigation in my opinion is to what extent ‘western’ countries have neglected the human rights of their indigenous peoples.

The UN Declaration on the Rights of Indigenous Peoples came into effect in 2007. While progress has been made in recognising indigenous rights at the international level and in many countries at the national level, implementation of the standards contained in the Declaration still remains the biggest challenge. For example, the treatment of Crimean Tatars, an ethnic minority group, in Russia is still viewed as being in violation of the Declaration. This includes forced Russian citizenship on Crimean Tatars — without which they risk losing their residence permits, murders and abductions of Crimean activists, and attacks on religious sites.1 Furthermore, the only Tatar language television station has been unable to renew its license under Russia’s new mass communication laws, effectively silencing the voice of this ethnic minority2.

Of course, it should be noted that universality does not presuppose homogeneity3. In asserting the universality of human rights, I do not suggest that our views of human rights transcend all philosophical, cultural or religious differences. Rather, it is enough that they do not fundamentally contradict the ideals and aspirations of any society, and that they reflect our common humanity.

Human rights, in other words, spring from the common fact of being human; they should not be the privilege of any particular government or legal system.

Bianca Says: I see the implementation of human rights in the same way that I see pink elephants and high distinctions – in my dreams.

Unfortunately, as many advocates of human rights will attest to, the Universal Declaration of Human Rights is still not as effective as we could hope. This is evidenced by the multiple violations we witness worldwide and at home with Australia’s refugee policy sending asylum seekers who arrive by boat to other countries described as ‘harsh’ by Human Rights Watch4. Why, you ask, are there so many violations of principles that ‘reflect the minimum standards necessary for people to live with dignity?’5. If we look back at the execution of the Bali nine members Andrew Chan and Myuran Sukumaran, Australia was up in arms debating the death penalty and questioning what it means to be guilty. I myself didn’t believe that the two men should be executed after spending almost a decade in prison, however, it was a smack in the face when I realised that because Australia doesn’t believe in the death penalty it could impose that fundamental human right on a country that does believe in the death penalty.

Human rights do not fail because the concept of human rights is flawed, rather western civilisation in its position at the top of the leader board has, if not the monopoly, the privilege of possessing the language of human rights as its own6. Our only hope, as Pollis and Scwab assert, is to ‘rethink the concept of human rights; an effort must be made to distil

1 Robert Knight, ‘As Permanent Forum on Indigenous Issues Begins Second Week, Speakers Call for Improved Access to Basic Services, Greater Protection of Rights’, United Nations (online), 27 April 2015, <http://www.un.org/press/en/2015/hr5248.doc.htm>. 2 Richard Balmforth, ‘Silencing of Crimean Tatar TV sparks outcry from rights bodies, Ukraine, Turkey’ The Guardian (Online), 3 April 2015,< http://www.theguardian.com /article/2015/04/03/us-ukraine-crisis-crimea idUSKBN0MU0R520150403>. 3 Jack Donnelly, ‘Cultural Relativism and Universal Human Rights’, Human Rights Quarterly, (1994), 24, 1. The Advocates for Human Rights, Human Rights Basics, The Advocates for Human Rights, <http://www.theadvocatesforhumanrights. org/home>. 4 R Panikkar, ‘Is the Notion of Human Rights a Western Concept?’ (Speech delivered to the Institut International de Philosophie on Philosophical Foundations of Human Rights, Senegal) <http://www.silentharmony.in/wp-content/uploads/2012/03/Is-the-notion-of-human-rights-a-western-concept.pdf>. 5 Adamantia Pollis and Peter Schwab, Human Rights: Cultural and Ideological Perspectives (Praeger Publishers, 1980), 6.Raziye Akkoc, ‘How the world violates human rights, country by country’, The Telegraph (online), 2 February

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(In)securities, International Protection and the Law

from the multiplicity of philosophies and ideologies and their divergent values any universals that may exist’7.

Kieran says: A week before Andrew Chan and Myuran Sukumaran were executed in a barbaric display of state sanctioned murder Julie Bishop visited Tehran, hoping to strike a deal that would see failed asylum seekers sent back to Iran8. Our anger following the executions of Andrew and Myuran was palpable and our distress genuine, but why do our voices of protest remain mute when 3000 languish on death row in the US or when our own government are seen striking deals with a country where atheists, homosexuals and ‘adulterers’ are regularly sent to the hangman’s noose?

Curiously, the lens that we view the concept of human rights through is narrowing as we settle on the smug perception that human rights are a privilege, to be enjoyed most when looking inward, rather than outward.

Take the year of 2014 as an example, a year of unprecedented bloodshed.

ISIS launched its blitzkrieg in Iraq, Libya’s government crumbled, civil war erupted in Yemen, the latest Israel-Palestine peace talks failed in a spate of renewed violence and the United States and its allies, including Australia, sent aircraft and troops back into Iraq. Russia revived cold war tensions following the annexation of Crimea and the decision to ignore the catastrophe in Syria has only served to further sow the seeds of disaster. Now, the world is faced with another humanitarian crisis.

Millions are displaced and thousands are dying at sea trying to cross the Mediterranean. Failed states mark the maps of the Middle East and North Africa and the consequences of drawn out, western led wars can be seen in overflowing refugee camps. So, if we are to ask ourselves the question of whether human rights are the privilege of the western world, shouldn’t the answer be obvious? Our propensity to look inward and remain silent when we know evil persists is our great moral shame.

Adriana Says: That the West is a beacon of hope and a crusader for human rights is a tale familiar to many. In our tirade for freedom and protection of human rights, we’ve invaded countries, killed bad guys, created bad guys, and then given those bad guys more power by destabilising their entire region through the mentioned activities. But how much do we actually care about these rights?

Now Australians are upset because two of our nationals were executed in a foreign country in the most barbaric of ways, and we have every right to be. But not even a fraction of the outcry can be heard about the government’s decision to cut aid to Indonesia. Australians will not react negatively because simply, we have been conditioned to think it’s acceptable.

While the proportion of our spending that goes to foreign aid is at the lowest level since the 1950s, Australians still accept it. Let’s not delude ourselves into thinking that the aid we have just cut will not affect many people who desperately need it, and let’s not delude ourselves into thinking that we even care. After all, we preach about the protection of human rights overseas, but Australia is responsible for decades of mistreatment of asylum seekers and to this day continues a policy of indefinitely detaining children in horrific conditions. We can all just attribute this to the government but they didn’t get elected all on their own, did they?

At the same time as actively cutting aid where it is desperately needed, we continue to turn a blind eye to the atrocities committed by our wealthier allies, like the U.S., Saudi Arabia and China, because it is economically sound to do so. America is responsible for a drone campaign in Yemen and Pakistan that carries extensive civilian casualties, Saudi Arabia executes more foreign nationals than any other country annually, and China is home to the largest market of exploited labour in history.

So while you could say that human rights are a privilege of the western world, it would be more appropriate to say that human rights violations are a privilege of the western world.

Neeharika Says: Just for a moment let’s cast our minds back to the lead up to the executions. If you had asked the Neeharika of six months ago my stance would have been clear: the rule of law should prevail. Can Australia intervene in the Indonesian justice system without it being an affront to Indonesia’s sovereignty?

Sukumaran and Chan were involved in drug trafficking far before they landed in a Bali prison. And they were guilty.

But in amongst the candlelit vigils, the visuals of already mourning family members and Sukumaran’s death row paintings, my resolve crumbled. After all, the death penalty is an abominable construct. And certainly now that shots have been fired, more Australians than ever are of the same opinion.

Now cast your mind a little further back to the words of our fearless leader: Australians are “sick of being lectured to by the UN”10. That may well be the case, but the last few months have surely shown if nothing else that we certainly aren’t sick of giving the lecture. Prime Minister Abbott’s words came in response to a UN report finding Australia in violation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, just two months prior to the executions of Bali Nine ringleaders Andrew Chan and Myuran Sukumara11.

The Australian Government cut aid to Indonesia as part of a budget that slashed aid across the board12. Perhaps it’s time we asked ourselves: which is the more cruel and inhuman punishment: the one received or the one doled out? Ask yourself: are two lives worth the starvation of so many more? The immediate answer, the distinction and the justification is that the two lives were of Australian men. And as the old tune goes: Advance Australia Fair.

2015, <http://www.telegraph.co.uk/news/worldnews/11381744/How-the-world-violates-human-rights-country-by-country.html>. 7 Mandie Sami, Government plan to send failed asylum seekers back to Iran would risk lives, Iranians say (2015) 8 ABC online <http://www.abc.net.au/news/2015-04-13/iranians-condemn-governments-plan-to-send-asylum-seekershome/6388800> 9 Friedrich Nietzsche, Beyond Good and Evil (Arc Manor LLC, 2008) 10 Lisa Cox, ‘Tony Abbott: Australians ‘sick of being lectured to’ by United Nations, after report finds anti-torture breach’, Sydney Morning Herald (Online), 10 March 2015, <http://www.smh.com.au/federal-politics/political-news/tony-abbott-australians-sick-of-being-lectured-toby-united-nations-after-report-finds-antitorture-breach-20150309-13z3j0.html> 11 Ibid 12 Bridie Jabour, ‘Australia cuts aid to Indonesia by 40%, federal budget reveals’, The Guardian (online), 12 May 2015, <http://www.theguardian.com/australia-news/2015/may/12/australia-cuts-aidto-indonesia-by-40-federal-budget-reveals>.

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Food, Glorious Food When looking at Human Rights, the issue of starvation and undernourishment reminds us all of the importance of food security. CECILE BESTER investigates what exactly ‘the right to food’ means and how countries can work together to improve this basic human right for all.

The right to adequate nourishment underpins the very foundation of human security in addressing the key issues of starvation, child mortality and health, poverty, education and economic development.

Children under five must be properly nourished in order to properly develop; otherwise they can suffer reduced cognitive capacity and later struggle with education or skilled employment.1 Food security is therefore an economic issue as well as a humanitarian one - an issue we need to be paying attention to.

However, it must be noted that food security is a complex issue. Just as food security is vital to a range of human development indicators, human security aspects also influence it. Climate change, violent conflicts, disease outbreaks, corruption and gender inequality all contribute to determining whether certain nations or communities will have available, accessible food.

It is estimated that across the globe, around 805 million people are chronically undernourished.2 This figure has fallen by 200 million since the early 1990s, representing strides forward in addressing food security.3 However, it stands as a reminder that there are still hundreds of millions of people who do not have the fundamental right to adequate food. In terms of addressing this, it is important from a legal perspective to determine what the ‘right to food’ consists of, and to what extent it is protected by law.

1. Enrique de Loma-Ossario, Carmen Lahoz and Luis F. Portillo, ‘Assessment on the Right to Food in the ECOWAS region’ (2014) Food and Agriculture Organization of the United Nations, Rome, 31.2 According to the latest estimates from the Food and Agriculture Organization of the United Nations (FAO).3 Further, the Global Food Security Index published by the Economist shows that food security has improved in almost every region in the world in the past year. 4 Universal Declaration of Human Rights, art 25(1). 5. Charter of the United Nations art 55 and 56. 6 International Covenant on Economic, Social and Cultural Rights art 11(2). 7 International Covenant on Economic, Social and Cultural Rights art 2. 8. Convention on the Elimination of All Forms of Discrimination Against Women art 12 and 14. 9. Convention on the Rights of the Child, art 25 and 27. 10 Voluntary guidelines to support the progressive realization of the right to adequate food in the context of national food security, Food and Agriculture Organization of the United Nations, Rome, 2005. 11 Enrique de Loma-Ossario, Carmen Lahoz and Luis

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(In)securities, International Protection and the Law

d

the Socio-Economic Rights and Accountability Project (SERAP) against the Nigerian government in 2009 dealt with the destruction of the Niger Delta by foreign oil companies.14 The court found that the Government had failed to prevent the companies from contaminating the land and water, thereby displacing the local community. This failure to act was held to be a violation of the people’s right to food (in addition to other rights).

The Court ordered that the Government be responsible for restoring the Niger Delta environment and would bear the cost for doing so, but stopped short of requiring that damages be paid.

The SERAP decision demonstrates a concrete recognition of the right to food and how it can give rise to an action in domestic law. However, enforcement of the court’s orders remain problematic. There has not yet been an update provided as to whether restoration of the Niger Delta has indeed taken place.

The SERAP case also turns on a set of facts where the link between government negligence and violation of rights was clear. In many cases, accessibility to food may be a long-term issue that is the result of numerous complex factors. In that case, the right to food would operate in a more general way, as a positive obligation on governments to work to improve food security for their people.

Food waste: an important consideration

The Right To Food The right to food stems from the basic principle of ‘freedom from want’, and is found in a number of international treaties, including the Universal Declaration of Human Rights4 and the Charter of the United Nations.5 It is perhaps most clearly expressed in the International Covenant on Economic, Social and Cultural Rights (ICESC) as: ‘the fundamental right of everyone to be free from hunger’.6 The ICESC gives effect to this by requiring that each State Party take steps ‘to the maximum of its available resources’ to achieve the realisation of the rights contained in the Covenant.7 The ICESC has been ratified by most countries, providing a solid foundation in terms of food security obligations. The Convention on the Elimination of All Forms of Discrimination Against Women8 and the Convention on the Rights of the Child9 further strengthen these obligations.

The practical implementation of food security is somewhat more difficult to realise. To this end, the Food and Agriculture Organisation of the United Nations have developed voluntary guidelines to assist countries in implementing their obligations under the ICESC.10 Aspects addressed by these guidelines include governance principles, legal frameworks, protection of vulnerable groups, and provision of food aid. The guidelines are not legally binding but can provide a helpful template. To look further into how law might operate with respect to enforcing the right to food, it is helpful to focus on a particular region such as West Africa.

Case study: West African region The Economic Community of West African States (ECOWAS) is a regional group of 15 countries. It is the fastest growing region of the African continent. Rapid population growth combined with political instability in some regions, and severe droughts or floods exacerbated by climate change, make food security particularly challenging. The FAO has recently released a report detailing food security challenges and developments in the ECOWAS.11 The countries in the region have ratified the ICESC and other relevant treaties, but implementation of these obligations requires regional legal instruments to be in place,12 and for these to be enforced by judicial mechanisms. Thus, the ECOWAS Community Court of Justice has been established to adjudicate right-to-food cases.13 A case brought by

Another aspect to food security is the reduction of food waste. Around 1.3 billion tonnes of food are wasted each year, and this is alarming considering there is theoretically enough to provide every person in the world with a calorie surplus.15 Paradoxically, it is often countries with the least food to spare that end up with the greatest post-harvest losses, due to a lack of consistent cold-chain transport of fresh produce, or poorly organized supply chains.16 The right to food, set out in the ICESP, requires ‘developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources’.17 This could be interpreted as requiring not only efficient crop production techniques, but also the implementation of waste minimisation procedures. The Plan of Action agreed to by States at the World Food Summit in 1996 included a commitment to ‘reduce post-harvest losses’,18 indicating that food waste is indeed an important contributor to food security. Implementing the obligation to reduce waste would be an effective way to reach food security goals without having to place more strain on crop producers or the natural environment. Currently, a large proportion of agricultural aid goes towards crop production.19 If some of this were diverted instead to post-harvest logistics, significant gains could be made.

In the developed world, food waste is also challenging. Supermarkets and consumers are responsible for throwing away billions of dollars of food each year.20 Developed countries could perhaps look to characterising their own food security obligations as requiring that they reduce food waste. Doing so would make economic sense and address sustainability issues as well.

The right to food is well established in international law and in a number of domestic legal frameworks and as a food-secure country, Australia still has a role to play in provision of food aid and potentially facilitating food waste reduction programs both domestically and overseas. In the face of an ever-expanding global population, the importance of the right to food can only continue to rise.

F. Portillo, above n 1. 12 For example, the African Charter on Human and People’s Rights (1981).13 Enrique de Loma-Ossario, Carmen Lahoz and Luis F. Portillo, above n 11, 50.14 SERAP v Federal Republic of Nigeria (2012) ECOWAS Court.15 Anastasia Telesetsky ‘Waste not, want not: the right to food, food waste and the sustainable development goals’ (2014) 42 Denver Journal of International Law and Policy 479. 16 Ibid. 17 International Covenant on Economic, Social and Cultural Rights, Art 11(2). 18 Rome Declaration on World Food Security and World Food Summit Plan of Action 1 (1996), at p 36 19 Anastasia Telesetsky, above n 15. 20 Andrew Perry, Keith James and Stephen LeRoux, ‘Strategies to achieve economic and environmental gains by reducing food waste’ (2015) WRAP.

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Stranded at Sea: A Repeated History The Muslim Rohingya peoples continue to be one of the most victimised minority groups in the world. LING MCGREGOR explores the plight of these refugees in a world, which is not offering adequate, if any, security.

‘I can only hope and expect that the other world, which has such deep sympathy for these criminals [Jews], will at least be generous enough to convert this sympathy into practical aid.’ - Adolf Hitler, Évian Conference 1938 The Muslim Rohingya are one of the most persecuted minorities in the world, and for many decades have sought refuge outside of Myanmar and Bangladesh. In 2012, violence flared in sectarian clashes with the Buddhist majority in the Rakhine State, leading to the destruction of entire villages, hundreds of deaths, and the displacement of approximately 150,000 people.1 Many are confined to squalid camps, with 70 percent having no access to safe water or sanitation.2 Over the past 15 months, it is estimated that as many as 88,000 people have fled the region,3 with 25,000 Rohingya Muslims leaving from the Bay of Bengal between November 2014 and May 2015 alone.4 In May 2015, 8,000 were stranded in the Andaman Sea and Malacca Straits. Many had been onboard unsafe vessels for over two months, without access to water, food, and much needed medical assistance.

Myanmar Law Legally, the Rohingya are stateless. The Myanmar government segregated the population, restricting their movement, revoking their democratic rights, and failing to respond to human rights violations.

As of 2013 there were 1.3 million Rohingya living in Myanmar, and although considered illegal migrants from neighbouring Burma, they have in fact been residents for generations.5 Whilst denying them citizenship, the Myanmar government and public has disclaimed all responsibility for thefate of their Rohingya population adrift on the Andaman Sea.6

Regional Concern Wider regional concerns have stemmed from this crisis. The foremost is that an unprecedented industry of human trafficking has emerged. Since 2014, the Rohingya have turned to people smugglers at twice the rate, hoping to reach other countries through the Bay of Bengal and Andaman Sea, to the Malacca Straits in Southeast Asia. Thousands of Rohingya victims of human trafficking are detained by people smugglers, and kept within an estimated 60 detention camps throughout the Thai-Malaysian border. Each camp contains between 150 and 180 individuals who are subject to immense degradation, slavery, and impoverished conditions for months,7 whilst traffickers attempt to extort additional ransom from their families.8 In early 2015, abandoned camps were uncovered as mass graves in Thailand, and 17 in Malaysia - some containing hundreds of deceased refugees.9 Obligations Pursuant to their commitments under the United Nation’s refugee convention, the Philippines first accepted and sheltered thousands of people.10 Despite this, Indonesia, Malaysia, and Thailand pushed many of the stranded boats back to sea on the grounds that they had no duty to rescue them. Malaysia first turned away a boat carrying approximately 400 people.11 The vessel had been abandoned by people smugglers six days prior, and upon being reached by Malay authorities, ten passengers had passed away.12 In total, UNHCR reports suggest that the humanitarian crisis in Myanmar has eventuated in the deaths of at least 300 people at sea in 2015 alone.13

1 Gary Cox, ‘Why are so many Rohingya migrants stranded at sea?’, SBS (online), 19 May 2015 <http://www.sbs.com.au/news/article/2015/05/19/why-are-so-many-rohingya-migrants-stranded-sea>.2 Lisa Cox, ‘’Nope, nope, nope’: Tony Abbott says Australia will not resettle refugees in migrant crisis’, The Sydney Morning Herald (online), 21 May 2015 <http://www.smh.com.au/federal-politics/political-news/nope-nope-nope-tonyabbott-says-australia-will-not-resettle-refugees-in-migrant-crisis-20150521-gh6eew.html>.3 Human Rights Watch, Southeast Asia: Put Rights at Centre of Boat People Summit, 27 May 2015 <http://www.hrw.org/ news/2015/05/27/southeast-asia-put-rights-center-boat-people-summit>4 ‘Rohingya refugees deserve better’, The Japan Times (online), 24 May 2015 <http://www.japantimes.co.jp/opinion/2015/05/24/editorials/ rohingya-refugees-deserve-better/#.VWflwmSqqkq>.5 Ibid.6 ‘Protesters in Yangon claim Rohingya refugees have ‘made up the name’ to gain asylum’, South China Morning Post (online), 27 May 2015 <http://www.scmp. com/news/asia/article/1811013/protesters-yangon-claim-rohingya-refugees-have-made-name-gain-asylum>.7 Terry Fredrickson, ‘Border camp horrors revealed, official arrested’, Bangkok Post (online), 4 May 2015 <http://www.bangkokpost.com/learning/learning-from-news/549355/suspected-migrant-graveyard-discovered-in-songkhla>.8 Eileen Ng & Todd Pitman, ‘Malaysia finds graves of suspected trafficking victims’, Yahoo!

News, 24 May 2015 <http://news.yahoo.com/malaysia-finds-mass-graves-suspected-trafficking-victims-075326027.html>.9 Ibid.10 Beh Lih Yi, ‘Philippines offers refuge to desperate migrants trapped on boats’, The Guardian (online), 19 May 2015 <http://www.theguardian.com/world/2015/may/19/philippines-offers-refuge-to-desperate-asylum-seekers-trapped-on-boats>. 11 Amnesty International, Save the lives of 8,000 people

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Despite government inaction, Indonesian communities initially mobilised donations of food and water, and in one week local fisherman rescued more than 1,300 of those stranded or swimming ashore.14 The Indonesian and Malaysian government has since sent rescue operations, announcing in mid-March that they would provide temporary shelter to migrants recently rescued, or still stranded, for one year.15 Within four days, more than 3,600 people landed ashore,16 however, there is no long-term solution for them.

On May 29, representatives from seventeen countries were scheduled to gather in Bangkok. At the summit, the Human Rights Watch aimed to prioritise forming an agreement to save people at sea, unconditionally permitting refugees to disembark, and to allow United Nations agencies to intervene.17 The conference sought to turn on human rights violations and migration law in both Myanmar and Bangladesh. However, at the time of writing, reports emerged that many key countries refused to send representatives,18 and its outcomes are yet be assessed.

minority status. As just one example, there is an undeniable parallel between the situation at hand and the pre-World War II Jewish diaspora.

The 1939 departure of SS. St Louis, now known as the ‘Voyage of the Damned’, illuminates the events unfolding around the world this year, and its historical context mirrors the contemporary discourse surrounding Islam with striking similarity. The German liner left the port of Hamburg in May 1939, with 937 Jewish refugees aboard seeking asylum in Cuba.

Only 22 non-Jewish passengers were allowed to disembark, with the Australian Law remaining passengers travelling to the United States and being denied In line with Australia’s policy of turning back the boats, Prime Minister entry there.

Tony Abbott supported Malaysia, Thailand, and Indonesia in refusing to Much like the boats in the Andaman accept those stranded. More specifically, his response was a blatant denial: Sea, St Louis drifted in limbo. One ‘Nope, nope, nope ... I’m sorry. If you want a new life, you come through of the most striking criticisms came the front door, not through the back’.19 In light of Australia’s hardline from Hitler at the Évian Conference policy, which does not exactly have a front door, this was an entirely of 1938, drawing attention to the early hypocrisy that all representatives natural response. Condemning our neighbours would be entirely baseless condemned Germany, but few took practical measures to welcome Jews considering that Australia not only denies refugees within its own waters, to their own country.24 Indeed, one year later as the St Louis drifted for but further carts them back to Indonesia for offshore processing, or transfers over a month, its population starving, a worldwide anti-Semitic climate them to their original government without legal intensified and no country wanted to take them in. screening processes.20 Stopping the boats has Even in countries that did not actively protest, their been the priority of consecutive governments, Phrases which seek to indifference could be seen as a validation of the and by affirming regional inaction, the Australian inhumane treatment of Jews worldwide. Tellingly, criminalise refugees, such following eventual negotiations to resettle them government merely legitimises its own policy.

Europe, over a quarter were later killed in as ‘illegal maritime arrivals’ Western In Light of History the Nazi purges.25 and ‘queue jumpers’, Seventy-six years later, consider the comments The rhetoric surrounding our law has also Thai Prime Minister Gen. Prayuth Chan-ocha, perpetuate the illusion that of been criticised as ungenerous, inhumane, and who described the burden of accepting the boats, xenophobic.21 The contemporary position on it is the refugees who are justifying that ‘no one wants them’.26 Myanmar’s refugees leaves little space for recognising of the Rohingya constitutes crimes acting against international treatment that fundamental human and legal rights are against humanity, yet world leaders today refuse exercised by people seeking asylum from law, rather than our policy their asylum and display an indifference to their persecution. Phrases which seek to criminalise plight. In turn, our deflection of those escaping makers. refugees, such as ‘illegal maritime arrivals’ and persecution crucially serves to normalise the ‘queue jumpers’, perpetuate the illusion that it horrendous crimes committed against them. is the refugees who are acting against international law, rather than our policy makers. This is even further compounded by the confirmation that some of Australia’s most dangerous criminals will be sent to asylum seeker detention facilities on Christmas Island, and detained alongside refugees.22 Our law also fits into a wider cultural context. Most significantly, western countries foster a continued demonisation of Islam, and as the Rohingya are a distinctly Muslim group, their lives are caught in our political abnegation of minority communities. As one example, the recent Halal certification and anti-terrorist laws have been criticised as legislative forms of socially acceptable racism.23 Whether the laws are racially targeting in and of themselves is not a question that needs answering. Rather, on the most basic level, it must be recognised that they do operate within a discourse of Islamophobia, and the experiences of the Muslim Rohingya fit into wider, institutionalised forms of discrimination.

The reason for the dispersion of a particular religious or racial group undeniably stems from ethnic persecution, and is inseparable from their stranded at sea, 25 May 2015 <http://www.amnesty.org.au/action/action/37213/?&utm_source=propost&utm_medium=facebook&utm_content=Rohingya&utm_campaign=ref_640>. 12 Charlotte Alfred, ‘The boat of starving Rohingya refugees that no country will take in’, The Huffington Post (online), 14 May 2015 <http://www.huffingtonpost.com/2015/05/14/boat-people-photos_n_7283178.html>. 13 Amnesty International, above n 11. 14 Mitra Salima Suryono, ‘After long ordeal at sea, Rohingya find humanity in Indonesia’, United Nations High Commission for Refugees, 18 May 2015 <http://www.unhcr.org/5559efb36.html>.15 Eileen Ng & Todd Pitman, above n 8. 16 Ibid.17 Human Rights Watch, above n 3 18 Samantha Hawley, Interview with Tony Abbott, Prime Minister of Australia (Radio Interview, 29 May 2015).19 Lisa Cox, above n 2.20 Human Rights Watch, Statement to HRC: States Close Their Doors as Record Numbers of Asylum Seekers and Migrants Risk Lives at Sea, 26 May 2015 <http://www.hrw.org/news/2015/05/26/statement-hrc-states-close-theirdoors-record-numbers-asylum-seekers-and-migrants-ri>.21 Ginny Stein, ‘Australia accused of being nationalistic, xenophobic ahead of regional people smuggling talks’, ABC News, 28 May 2015 <http://www.abc.net. au/news/2015-05-28/australia-accused-of-being-xenophobic-in-migrant-crisis-response/6503844>.22 Chris Uhlmann & Susan McDonald, ‘Christmas Island detention centre being used to hold bikis, murderers with cancelled visas’, ABC News, 27 May 2015 <http://www.abc.net.au/news/2015-05-28/problem-immigration-detainees-sent-to-christmas-island/6503812>.23 Jeff Sparrow, ‘The last time they turned back the boats’, Overland, 16 May 2015 <https://overland.org.au/2015/05/the-last-time-they-turned-back-the-boats/>.

(In)securities, International Protection and the Law

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Navigating the Law of the Sea: Conflict in the South China Sea While territorial disputes over land are common in international law, a signi�icant amount of international disputes occur over international waters.

SAGE NEMRA explores the effectiveness of International law in governing territorial disputes at Sea. The Law of Sea is an integral aspect of international law in regulating global relations. The law has been codified in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The UNCLOS regulates marine activities and aims to promote peaceful cooperation among nation States for the legal use of seas and oceans. The UNCLOS operates in conjunction with many bilateral and multilateral agreements to ensure the protection of marine life and ecosystems and the fair use of territorial waters. International bodies such as the International Maritime Organisation also play an important role in monitoring and enforcing the law under the UNCLOS and other agreements.

Central to territorial disputes regarding oceans and seas is the discrepancy between the parameters of the water according to its geographical location and the boundaries imposed by law that may correctly be characterised as under sovereign control. As a general rule under the UNCLOS, each nation’s sovereign waters extend to a maximum of 12 nautical miles beyond its coastline. Beyond this watermark, each coastal nation may establish an exclusive economic zone (EEZ) extending 200 nautical miles from the shore or to the outer edge of the continental margin, whichever is further, with this area comprising the legal continental shelf. Under the UNCLOS, coastal States have broad sovereign rights in their EEZ for the purpose of “exploring and exploiting, conserving and managing the natural resources”.1 However, the coastal State must also have regard to the rights of other States.2 Background to the dispute in the South China Sea The South China Sea has been the subject of competing territorial claims primarily between China and Japan for centuries. China has adamantly defended its sovereignty over the territory while surrounding nations such as the Philippines, and to a certain extent Vietnam, raise serious questions as to the legal ownership of the area and the corresponding entitlement to the rights to use of the sea. Locality is critically important in the dispute, as the South China Sea is a strategic route for approximately $5.3 trillion in trade each year.3 It is also rich in resources with 11 billion barrels of oil and 190 trillion cubic feet of natural gas located in the region.4 14

(In)securities, International Protection and the Law

How can international principles assist in resolving this dispute?

The avenues available for the resolution of such a dispute are primarily interest-based rather than technical legal remedies with a view to achieving a compromise in accordance with the provisions of the UNCLOS. While there are certainly economic and policy implications arising from this dispute for the Asia-Pacific region, it would be incorrect to assume that this is a purely regional issue. Potential resolution mechanisms include international arbitration, the introduction of a multinational framework that establishes the rights and privileges of relevant nation States in the territory, diplomatic intervention by the UN Security Council or economic sanctions. As a last resort, a strategic military response is also possible.

Interestingly, with much naval activity in the region with fishing vessels, coastal patrols and naval ships, it is possible that misinterpretations could escalate conflict with violence.

The Philippines recently brought a claim before the International Tribunal for the Law of the Sea (Tribunal) in The Hague to challenge the legality of China’s territorial claims. China officially refused to join in the arbitration

e

proceedings by failing to submit a counter-memorial claiming that the Tribunal has no jurisdiction to adjudicate this issue under the UNCLOS and that it retains “historical rights” over areas in the South China Sea which fall within the Philippines’ EEZ.5 China has also sought to rely on the 2002 Declaration on the Conduct of the Parties in the South China Sea (DOC) in refusing to acknowledge the arbitration proceedings on foot.

There is no doubt that China’s actions demonstrate an increased assertiveness as to its territorial rights and its intent to establish Chinese sovereignty in the region. In particular, the Philippines have identified for example China’s paramilitary operations, construction activities and having forcibly seized the Scarborough Shoal and the Second Thomas Shoal in the South China Sea as indicative of China’s unilateral breach of the DOC giving rise to a substantial claim before the Tribunal. However, the US and surrounding coastal States are not likely to retreat from their positions in respect of the claims to ownership of these waters. In fact, the

US has indirectly shown support for the claim brought by the Philippines particularly in relation to China’s belief that it retains historical rights to the South China Sea when it has not enjoyed uncontested sovereignty over the territory nor is the region near enough to China’s coast to be considered capable of appropriation for historical purposes.

While the Tribunal is still dealing with the matter, China’s refusal to take part in the arbitration significantly inhibits the effectiveness of any ruling that may be made. As a result, tensions remain high in the region with the increasing potential for actions to be misconstrued as encouraging violent conflict. Stability may be achieved in the region only if the relevant States are able to arrive at a reasonable compromise in accordance with the UNCLOS.

1 United Nations Convention of the Law of the Sea Art 56(1)(a) (‘UNCLOS’).2 UNCLOS Art 56(2).3 Council on Foreign Relations, ‘China’s Maritime Disputes: A CFR Info Guide Presentation’ <http://www.cfr.org/asia-and-pacific/chinas-maritime-disputes/p31345#!/>. 4 Ibid 5 Ministry of Foreign Affairs of People’s Republic of China ‘Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines’ <http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/ t1217147.shtml>

(In)securities, International Protection and the Law

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The Rise of Private Security Companies in International Law

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ADRIANA ABU ABARA questions the increasing presence of Private Security Contractors in the context of international armed conflicts.

An alarming trend has emerged in the last few decades of outsourcing security and military services to private security contractors (PSCs) in international armed conflicts. In 2007 a company made up of exCIA operatives called Blackwater Security was revealed to have played a significant role in the War on Terror, having been hired by the US Government to conduct operations in Iraq and Afghanistan.1 The crucial part of Blackwater’s operations is that, as a separate entity not associated with the US Military, the group was not accountable to anyone and often acted outside the rules of war that state military forces must abide by. It was not until the massacre of seventeen Iraqi civilians by Blackwater in 2007, known as the Nisour Square Massacre or “Baghdad’s bloody Sunday”2, that the company was scrutinised and their operations investigated. Following the massacre, the groups licence to operate in Iraq was suspended, and four members were of the group were indicted and tried (against significant pressure)3 for the murders in a US District Court.

This situation raises some questions. What is the status of these contractors in International Law? Does international law apply to them? Who are they accountable to? Who is accountable for them?

The laws governing the legal limits of international warfare are commonly known as jus in bello and they apply to all parties in the hostilities.

Currently, the status of PSCs is unclear, as they do not become parties to the hostilities except in very particular and strict situations. This is because International Humanitarian Law aims to provide the strictest protection for anyone who could be considered a citizen.

This means that the international obligations imposed on state military groups do not apply to the private actors as there has been no explicit agreement of such an imposition.4 In fact the PSC industry relies heavily

on self-regulation and has been criticised as being secretive and opaque.5 These actors are a recent phenomenon and international law has a notoriously slow evolution.

So who, then, are PSCs accountable to? In the Blackwater case it is important to note the contractors were charged under domestic US law for breaching a firearms policy governing State Department employees and contractors.6 However none of their actions before this event were criticised by the US government. If they acted in a way contrary to law before the Nisour Square Massacre (and some would certainly suggest that that they were),7 they were certainly not brought to accountability by the US government.

Finally, who is accountable for these contractors? If anything is clear, it’s that the State by whom they were commissioned is not. Unless the state has a certain degree of control over the conduct of the PSC, it cannot be held accountable for their actions.8 This is what makes the use of PSCs so attractive. Closer to home, the use of G4S by the Australian government to maintain security in offshore detention facilities completely exonerates the Government of its liability if anything like the death of Reza Barati were to happen.

So where does this leave the question of liability of private security companies? As for Blackwater, while the four men responsible for the massacre have been sentenced to imprisonment in what has been described as a rare moment of accountability,9 the owner of Blackwater escaped any liability, as did the US Department who hired the contractors. It seems, for the moment, PMCs function in a unique black hole where international law does not yet apply, and until States exercise stricter oversight, abuses of power like the Nisour Square Massacre will continue to occur.

1 Jeremy Scahill, Blackwater: The Rise of the World’s Most Powerful Mercenary Army (Nation Books 2007). 2 Jeremy Scahill, ‘Blackwater Founder Remains Free And Rich While His Former Employees Go Down On Murder Charges’ The Intercept 23 October 2014 <https://firstlook.org/theintercept/2014/10/22/blackwater-guilty-verdicts/>.3 Matt Apuzzo ‘Emails Reveal Discord Over Blackwater Charges’ The New York Times 12 April 2015, <http://www.nytimes.com/2015/04/13/us/emails-show-discord-between-fbi-and-justice-dept-over-chargesin-blackwater-case.html?ref=topics> 4 Francesco Francioni ‘Private Military Contractors and International Law: An Introduction’, The European Journal of International Law 19, 961, 962.

5 ABC ‘Mercenary World: part two’, Radio National (19 April 2015) (Katherine Fallah).6 David Johnston and John M. Broder ‘F.B.I. Says Guards Killed 14 Iraqis Without Case’ The New York Times November 14 2007 <http://www.nytimes.com/2007/11/14/world/middleeast/14blackwater.html>.7 Scahill, above n 1.8 Francioni, above n 4, 962.9 Scahill, above n 2.

(In)securities, International Protection and the Law

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A Brief Look at the Executions in Bali

The execution of Andrew Chan and Myuran Sukumaran stopped the world, leaving people of different nations to reconsider the sanctity of one country’s sovereignty against greater violations of humanity. JASON CORBETT examines one of the most controversial events of 2015 through a legal lens.

Amidst the vehement and contentious responses to the recent execution of the Bali Nine ringleaders, Andrew Chan and Myuran Sukumaran, there has been a worryingly distinct lack of adequate reporting on the legal processes and jurisprudence surrounding their plight. Indeed, their case is one surrounded by frustrating failures and overwhelming tragedy. However, this emotive focus on their case has compromised constructive debate surrounding the exercise of law. In particular, our sympathy stemmed mostly from the pathos created by how the two were represented; their personal narratives as young Sydney schoolboys who made one mistake and were ‘betrayed’ by our own Australia Federal Police (‘AFP’) shifted the attention to questions of morality and public opinion, as opposed to objective criticism. This article will adopt a legal perspective on some of the events that transpired during the Bali Nine ringleader’s case and the public response to the parties involved.

Arrest On 17 April 2005, nine Australians were arrested in Bali, with the assistance of the AFP, for attempting to smuggle more than 8kg of heroin into Australia.1 The arrest has been colourfully reported, with the popularised phrase ‘blood on their hands’ being used to describe the role the AFP played. But whilst frustration is understandable, there is no real basis for blame on the part of the AFP. It is easy for us who have the benefit of hindsight and the complete picture of the crime to criticise the decisions of those who had neither at the relevant time. The legal question is whether the AFP could have arrested any of the Bali Nine prior to their leaving Australia.

The AFP requires ‘reasonable grounds’ to make an arrest,2 an element which, for the most part, requires an objective, factual basis enough to both substantiate the subject matter of the belief, and induce the same suspicion in a reasonable person.3 Crucially, the AFP were in the process of conducting an investigation which had not yet provided any condemning evidence. Their knowledge at the time did not extend to the hierarchy or identity of the majority of the syndicate, or the source or type of drug.4 What little knowledge they had were tickets being paid in cash in the same place, passports issued simultaneously, and airline alerts,5 none of which are reasonably indicative of criminal activity.

Some have argued that the AFP should not have assisted Indonesia as a country which exercised the death penalty. The AFP is responsible for combating, among other things, transnational crimes. The very transnational nature of these crimes is what makes their prevention difficult and any measure of prevention requires a proactive role; inaction, as is suggested here, is an inappropriate response to crimes of any nature.

To suggest non-compliance with the some 100 countries around the world who utilise capital punishment6 impractically limits the AFP’s capacity.

Death Penalty At the crux of the controversy surrounding the Bali Nine case is whether the death penalty for drug offences is recognised as compliant with Indonesia’s international obligations as a party to the International Covenant on Civil and Political Rights. The covenant provides that the ‘sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission’.7 Professor Andrew Byrnes of the Australian Human Rights Centre very persuasively argues this in the negative, as empirically, the UN Human Rights Committee has consistently reiterated: The Committee’s view is that the death penalty can only be justified in some cases of intentional killing, and that even serious drug trafficking offences do not fall into the category “most serious crimes”.8 The question is one of proportionality, however, proportionality cannot be universally measured as laws exist within the specific cultural framework of a specific society. A blanket limitation on the death penalty ignores the many different factors influencing laws and condescendingly proposes a uniform ‘right way’ of governing which is inherently Eurocentric.

It was surveyed in Indonesia that at least 4 million people are in need of rehabilitation and a reported 33 people die a day (over 18,000 a year) from drug-related causes.9 A hard-line policy involving the death penalty is similar

1 ‘Bali Nine: Timeline of key events’, ABC News, 22 April 2015 <http://www.abc.net.au/news/2015-02-12/bali-nine-timeline-andrew-chan-myuran-sukumaran/6085190>.2 Australian Federal Police act 1979 (Cth) s 14A.3 Hyder v Commonwealth of Australia [2012] NSWCA 336, 343; George v Rockett (1990) 170 CLR 104, 112.

4 Andrew Colvin, Michael Phelan and Leanne Close, ‘Commissioner Andrew Colvin, Deputy Commissioner Michael Phelan and Deputy Commissioner Leanne Close discuss Bali Nine’ (Media Release, 4 May 2015) 6.

5 Ibid, 7.

6 Ibid, 28.

7 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 6.

8 Andrew Byrnes, The Bali 9 case – where has international law gone? (30 January 2015) Australian Human Rights Centre <http://www.ahrcentre.org/news/2015/02/02/660>.

9 Erwida Maulia, ‘Narcotics Agency: Drugs Kill 33 Indonesians Daily, not 40-50’, Jakarta Globe (online), 10 March 2015 <http://thejakartaglobe. beritasatu.com/news/bnn-says-33-die-of-drugs-daily-not-40-50/>.

10 Andina Dwifatma, ‘Bali Nine duo executed: the view from Indonesia’, The Conversation, 29 April 2015 <https://theconversation.com/bali-nineduo-executed-the-view-from-indonesia-38392>.

11 Endy Bayuni, ‘Commentary: Capital Punishment and public opinion’, The Jakarta Post, 23 January 2015 <http://www.thejakartapost.com/news/2015/01/23/ commentary-capital-punishment-and-public-opinion.html>.

12 ABC Fact Check, ‘Fact Check: No proof the death penalty prevents crime’, ABC News, (4 May 2015) <http://www.abc.net.au/news/2015-02-26/

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“Diplomacy necessarily requires less adversarial confrontations – confrontations which are naturally provocative and which actively close the door for reasoned negotiation.”

to the approach other countries in the region have taken and which have since reported a declinature in drug-offences – Singapore, for example. Indonesian public opinion suggests that some 86% of the population agreed with the execution10 and, more generally, would seem to support capital punishment for drug crimes.11 Of course, critical to the discussion is the very well founded argument that there is little empirical evidence to demonstrate that the death penalty is an effective deterrent.12 Studies on this topic, however, are clear that this is because the area is difficult to study, not because it definitively fails to do so.13 Rule of Law Issues arose during the course of the Bali Nine case which question whether in fact the Rule of Law was followed as President Widodo contends.14 At a fundamental level, the Rule of Law requires, among other things, fair procedure be practiced.15 Adjudicators are therefore obligated to act independent of politics and provide reasoning.16 Cases are considered on their individual merits, and decisions delivered accordingly.

President Widodo’s rejection of the Bali Nine duo’s clemency application was part of a blanket rejection of 64 applications made by drug offenders on the grounds of his political stance against drug crimes.17 No consideration or reasoning was given to their individual applications. Indeed it is on this procedural issue that the lawyers for the two attempted to appeal, with the supplementary submission that Indonesia’s Constitutional Court recommended a reconsideration of the death sentence on convicted criminals who had been rehabilitated after some 10 years in jail.18 It is easy to see the hope in this direction; the latter submission in particular would impose a non-binding

onus on the President to at least consider evidence of the pair’s rehabilitation and make a decision with respect to the full picture.

The dismissal of their appeal was based on a jurisdictional issue.19 However, regardless of success, clemency is a prerogative power – the President is not bound to grant clemency simply because fair procedure was followed and rehabilitation accepted.20 That is the dubious nature of clemency, it is a power vested in the highest political figure in the land with the constitutional ability to overturn the judiciary’s decisions; an ability but not an obligation.

Other very questionable circumstances surrounding the case include allegations of judicial corruption at the time of sentencing (currently being investigated by the Judicial Commission),21 the movement and preparation of the prisoners for execution prior to the finalisation of court proceedings,22 and the execution before all legal avenues were exhausted (an appeal to the Constitutional Court was being prepared).23 It would appear that in their haste to affirm their hard-line policy, many circumstances which questioned their commitment to the Rule of Law were overlooked.

Alongside these points, however, criticisms of any nature should never have been expressed through hashtag campaigns, labels of ‘barbarism’ and ‘savagery’, racial slurs, rallying for boycotts and aid cuts, political satire pieces, celebrity endorsements or ad hominem attacks. In doing so, many in Australia exercised a dangerous Imperialistic rhetoric which vilified the Indonesian population as a whole. The discourse surrounding the issue boasted a paternalistic attitude towards a country which contributes $15 billion in trade and investment to Australia, provides a multitude of educational partnerships with

Australian schools and universities, and who has proven a formidable ally in assisting with the management of transnational crimes.24 Diplomacy necessarily requires less adversarial confrontations – confrontations which are naturally provocative and which actively close the door for reasoned negotiation.

Censure, especially in the context of diplomatic relations, should be constructive and rational, as opposed to the blatant vitriolic slander that often plagued the public domain. This article sought to demonstrate where criticisms from a legal and constructive perspective could have permeated. There are a multitude of reasons for anger, frustration and disappointment to be rightfully experienced, but to engage in inflammatory rather than constructive criticism is inappropriate in an age where diplomacy and international relations are integral to sustainability.

fact-check3a-does-the-death-penalty-deter3f/6116030>.

13 Ibid.

14 Paterno Esmaqual II, ‘Jokowi on please for Mary Jane: Respect our laws’, Rappler, 20 April 2015 <http://www.rappler.com/nation/90546indonesia-joko-widodo-mary-jane-veloso>.

15 Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution, (Palgrave Macmillan, 10th ed, 1985) 202.

16 The Hon Michael Kirby, ‘Judging: Reflections on the moment of decision’ (Paper presented at Fifth National Conference on Reasoning and Decision-Making, Charles Sturt University, 4 December 1998); Public Service Board of NSW v Osmond (1986) 159 CLR 656, 666; Pettitt v Dunkley [1971] 1 NSWLR 376, 388.

Myuran Sukumaran and other drug criminals’, ABC News, 12 February 2015 <http://www.abc.net.au/news/2015-02-12/bali-nine-pair-officially-disputepresidents-clemency-process/6087134>.

18 Emma Alberici, Interview with Peter Morrissey, Senior Counsel (Television Interview, 6 April 2015).

19 Ibid.

20 Ibid.

21 Ibid.

22 Tom Allard, ‘Indonesia says legal appeals irrelevant as Bali nine transfer date to be decided Tuesday’, The Sydney Morning Herald (online), 2 March 2015 <http://www.smh.com.au/world/indonesia-says-legal-appeals-irrelevant-as-bali-ninetransfer-date-to-be-decided-tuesday-20150302-13t0w4.html>.

23 Alberici, above n 17.

24 Department of Foreign Affairs and Trade, Government of Australia, Indonesia Country Brief <http://dfat.gov.au/geo/ indonesia/Pages/indonesia-country-brief.aspx>.

(In)securities, International Protection and the Law

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Whether our Software Needs an Update In this day and age, war is no longer contained to the frontline. The technological innovations and developments we take for granted everyday are also being used to wage war on other countries. The question is, are there laws inplace to recognise this new kind of warfare? JOSEPH ANDRIANO examines what cyber warfare entails and what measures have or need to be put in place to ensure there are legal boundaries.

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(In)securities, International Protection and the Law

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Distinguishing from cyber crime, which involves the use of computers to violate domestic law in a criminal pursuit,1 cyber warfare refers to ‘warfare waged in space’.2 This includes States defending and deterring attacks on information contained in computer networks and, accumulating information to use against an opponent, whilst denying an opponent’s access to do the same.3

With civilian dependence on the Internet proliferating, States scurry to gain access to the newest form of military technology, thus necessitating the existence of international legal measures regulating cyber warfare, as the prospect of an online battlefield increases. Currently, we persist with traditional measures to tether this intangible conflict, which has resulted in confusion, as the current principles designed for a physical world prove incompatible with the phenomenon of cyberspace.

Cyber Warfare And How It Works: Warfare is a concept that continues to evolve with technology overtime, from the catapults manufactured by the Romans, to the canons of the U.S. Civil War; from the air support utilised in World War II, to the chemical weapons horrifically abused during the Iraq war. As one U.S. Air Force Lieutenant-Colonel observed, “[t]he history of war can be characterised as an imaginative use of technology to nullify the advantages of mass”.4 Commentators insist cyberspace is the modern platform for war, thus giving rise to Cyber Warfare. Defined as the employment of cyber capabilities where the primary purpose is to achieve military objectives through cyberspace,5 the term is a symbol for State sponsored attack within the digital field resulting in problematic and real destruction.6 Therefore, while the battle takes place in the intangible domain of computer networks, the ramifications have very real effects that impact on our physical world.7 This presents a fundamental transformation of the very concept of war itself, radically shifting the nature of the wartime battlefield.8 As such, regulation of cyber attacks prove difficult, as it is required to appease a battlefield encapsulating both the physical and cyber arenas. This ultimately gives rise to an issue of identity when determining whether the circumstances warrant cyber warfare.

The cyber battlefield, due to its incredible size, attributes to cyber warfare’s identity issue. The enormity of the battlefield allows for a range of incidents to occur, with and without any physical consequence. On 6 September 2007 in Syria, a regiment of Israeli F-15 and F-16 Falcon fighterbombers attacked and destroyed its Syrian target.9 The attack was classified as a cyber attack, as an image of nothingness was placed by the Israeli air force on the radar screens of Syrian forces.10 In contrast, in September of 2011, a virus of unknown origin infected classified U.S. Air Force drone control stations, in Nevada. The virus was repeatedly removed, only to promptly return. It exhibited no immediate effects on missions in Afghanistan and Iraq, yet continued to interrupt operations.11 Both take place on the cyber battlefield yet are dichotomous as one resulted in physical violence, while the other simply held a psychological, completely virtual presence. The scenarios highlight the versatile nature of cyber warfare, illustrating the core issue – what constitutes an attack? The danger posed in both scenarios is prevalent, yet different and therefore justification for armed response remains muddied, as legal measures granting Jus ad Bellum, or the ‘right to war’, are framed within the realm of traditional warfare.

1 Gary D. Solis, ‘Cyber Warfare’ (2014) 219 Military Law Review 2.2 Ibid.3 Ibid 3.4 Donald Ryan quoted by Bradley Raboin in ‘Corresponding Evolution: International Law and the Emergenceof Cyber Warfare’ (2011) Journal of the National Association of Administrative Law Judiciary. 5 Bradley Raboin, ‘Corresponding Evolution: International Law and the Emergence of Cyber Warfare’ (2011) Journal of the National Association of Administrative Law Judiciary.6 Ibid. 7 Ibid. 8 Ibid. 9 Gary D. Solis, ‘Cyber Warfare’ (2014) 219 Military Law Review 6.10 Ibid 7. 11 Ibid 3. 12 Daniel B Garrie, ‘Cyber Warfare, What Are The Rules?’ (2012) 1 Journal Of Law & Cyber Warfare 3. 13 The Charter of the United Nations art 2(4).14 Michael N Schmitt et al. Manual on the International Law Applicable to Cyber Warfare (Cambridge Review)16 Ibid 45.17 Charter of the United Nations

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weapons), that injures or kills, or damages property, thus excluding cyber theft and cyber intelligence gathering.22 This is concerning when we acknowledge the extent of damage that can be delivered by a successful cyber intervention, such as infiltrating the Stock Exchange.

While not necessarily resulting in death or destruction of physical property, this is certainly a trigger of civil and economic unrest and, potential devastation of cyber infrastructure. The ICJ has yet to offer a conclusive point where cyber attacks amount to an armed attack, all the while scholars continue to debate whether physical damage is a condition precedent, or rather the extent ensuing effects.23 International Regulations of Warfare

Necessity and Proportionality

International organisations have attempted to regulate warfare, to ensure it is initiated in only the most extreme circumstances and in the most just sense. The establishment of the United Nations (‘UN’) brought with it entrenched unlawful behaviour with reference to war, or ‘armed conflict’.12 Article 2(4) of the UN Charter13 prevents all Member States from using, or even threatening to use, force against the territorial integrity, or political independence of a state, unless consistent in a manner accepted by the UN. This section is qualified by the contents in Chapter VII, which express in Article 51 that self-defence is an acceptable means of maintaining international peace and security. Such Articles give rise to two issues applied to cyber warfare: first, does the “use of force” extend to cyber warfare? And secondly, at what point can a State initiate the exception in Article 51?

The Use of Force

Armed responses in self-defence must abide by two indicia – necessity and proportionality.24 Necessity refers to the use of force necessary to successfully repel an imminent attack.25 This rule applies where non-forceful measures such as cyber defences, diplomacy, economic sanctions and law enforcement, remain insufficient in the circumstances.26 Therefore, the crux of the necessity principle is the lack of an alternative course. Proportionality is a reactive concept, devised under the circumstances. The amount of force used to diffuse an attack, is restricted to the amount sufficient to successfully repel the attack – this level may fluctuate as attack intensifies due to level of destruction and imminence.27 Each concept translates to cyber warfare, with justification resting with the victim-state, as its officers apply their expert tact to determine the virulency of the threat.

The sheer speed of cyber

These issues were both confronted in the Tallinn operations render them Immediacy and Imminence Manual on The International Law Applicable to Cyber Welfare (‘the Manual’),14 which was nearly impossible to detect, Technically, the self-defence measure, within the ambit of Article 51, applies to an existing established after the first recorded wave of thus placing them outside armed attack, however this has been extended cyber attacks hit Estonia in 2007, to examine the role public international law plays in governing the more familiar scope of by scholars to include anticipation of an attack, which is based on the standards of imminence cyber warfare.15 The Manual provides that the imminence, as the temporal and immediacy.28 The sheer speed of cyber UN Charter prohibits force regardless of the render them nearly impossible to weapons employed,16 and is flexible enough element is superfluous. operations detect, thus placing them outside the more familiar to extend to modern warfare tactics. This Therefore, the central scope of imminence, as the temporal element is conclusion is achieved with reference to Article Therefore, the central issue relating 1 of the Charter, which expresses that a State issue relating to imminence superfluous. to imminence becomes whether failure to act at is in violation of the Charter where it’s actions becomes whether failure to that moment would result in State measures being are proven to be inconsistent with the purposes 29 The lawfulness of response based of the UN, which are to maintain international act at that moment would ineffective. on this element will likely be determined by the peace and security.17 Therefore, the fact that the cyber operation does not equate to physical result in State measures reasonableness of situation-assessment employed by the defensive State, due to the indeterminacy force does not exclude it from the weight of being ineffective. surrounding of the impact of cyber attacks. The the Charter, where it offends, or intervenes element of immediacy brings with it further with, the maintenance of international peace controversy, as it also includes a temporal aspect. This gives a victim and security. Debate resurges when we highlight the non-intervention State time to identify the attack and mount its response.30 Identification principles unveiled in the Nicaragua Case, where the International Court of an attacker proves problematic in cyberspace, due to the application of Justice acknowledged a State’s right to conduct its affairs without of anonymity a State may subscribe to when mounting an attack. unpermitted, external intervention.18 Cyber intervention is prohibited within the Charter as it has the capacity to coerce and manipulate information, Conclusion yet intrusions such as breaching firewalls is not captured, as it does not strictly amount to an operation of force. The labyrinth becomes deeper While the regulations currently in place are malleable enough to extend when we ask at what point an intrusion become an intervention, which to cyber warfare, the incongruity with respect to their application is too remains unanswered by scholars. extensive. Essentially, cyberspace is not restricted by the constraints existing within our physical world.31 The inherent differences separating Self Defence the domains obstruct any practical application of legal regulation.

Traditional legal principles may translate to modern warfare, yet their The UN Charter specifies nothing within it impairs the inherent right of measures are ill equipped to deal with the multifarious battlefield posed a State to employ self-defence against an ‘armed attack’,19 or impending by the modern technological weaponry. As such, cyberspace is worthy attack.20 The term ‘armed attack’ is not synonymous with the term ‘use of its own legal paradigm, particular to its intricacies and, until this is of force’.21 Only when the use of force pierces the threshold of an armed achieved confusion with traditional application will continue to emerge. attack is a State afforded the Article 51 exception. The Manual defines an armed attack as any force, including kinetic or electronic (such as chemical

art 1(1). 18 Nicaragua (Nicaragua v United States of America) (Judgment) [1986] 202. 19 Charter of the United Nations art 51. 20 Gary D. Solis, above n 10, 17. 21 Michael N. Schmitt et al, above n 15. 22 Ibid. 23 Ibid. 24 Nicaragua (Nicaragua v United States of America) (Judgment) [1986] 176 and (The Islamic Republic of Iran v. United States of America) (judgment) [2003] 43. 25 Professor Michael N. Schmitt et al, above n 22. 26 Ibid.

27 Ibid.28 Ibid 60. 29 Ibid 61. 30 Ibid 62. 31 Bradley Raboin, above n 6, 625

(In)securities, International Protection and the Law

23

An Inconvenient Truth – Australia and Human Trafficking

The international community is seemingly on the path to eliminating human traf�icking, yet migrant domestic workers remain vulnerable and unprotected. In Australia, you ask?How could this be true?

KATHARINE STANLEY shows that often the most inconvenient truths are the ones most worth uncovering.

Imagine you are offered the job of a lifetime with an Australian diplomat in Guyana. The pay will be three times the Australian rate, with food and accommodation included. You arrive in Guyana and not speaking Spanish is harder than expected. Work isn’t what you were promised; the hours are long, the job is hard and your living conditions are poor. After two months you still haven’t been paid and when you raise the issue with your boss you’re beaten or threatened with deportation. You can’t leave because you have no money, your boss has your passport and without a job you can’t support your family.

It is hard to imagine an Australian in this position, but it is a sad reality for many people around the world. Including people in Australia. The above scenario is based on the true story of a migrant domestic worker at an embassy in Canberra who sought help from Legal Aid and was denied justice due to diplomatic immunity.1 Although international and domestic law has made progress in its attempts to end human trafficking, slavery, servitude, and forced labour, domestic workers in diplomatic households remain unprotected. Migrant domestic workers are vulnerable to exploitation due to their dependence on employers for accommodation, food and transport,2 an informal work environment,3 limited social networks,4 and often a limited understanding

of English.5 Cases show exploitation occurs in Australia and the particular vulnerability of domestic workers in diplomatic households is recognised by the United Nations,6 the Parliamentary Assembly of the Council of Europe,7 domestic governments,8 and non-government organisations.9 Legal Framework International law has developed a solid framework to address human trafficking and slavery. Article 8 of the International Covenant on Civil and Political Rights 1966 prohibits slavery, servitude and forced labour and Article 7 of the International Covenant on Economic, Social and Cultural Rights 1966 creates a positive right to just and favourable working conditions. In recent years, the international framework has shifted to a criminal model with the Convention Against Transnational Organised Crime 2000 and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially in Women and Children 2000 (‘Trafficking Protocol’). The Trafficking Protocol obligates States to establish criminal offences for each element of human trafficking.

Australia satisfied its international obligations in 2013 with the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (‘Act’). The Act created the offence of forced labour and expanded the offence of ‘servitude’ to encompass non-sexual servitude.10 The Act also introduced a definition of ‘coercion’, which includes psychological oppression, abuse of power and taking advantage of a person’s vulnerability, recognising that many people from the developing world are exploited due to economic vulnerability rather than force or detention.

Most importantly, our domestic legal framework is enforced. From 2013 to 2014 the Australian Federal Police investigated 60 human trafficking and slavery matters. As at 30 June 2014 there were four cases before the courts, with nine defendants.11 An intergovernmental committee reports annually on the Australian Government response to human trafficking and slavery domestically and within our region.

1 Julie Lewis, ‘Out of the Shadows’ 1 Law Society Journal 24 (2007) 2 Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Trading Lives: Modern Day Human Trafficking (2013) 26. 3 United States of America Department of State, Trafficking in Persons Report 2013 (2013) 34.4 Ibid, 34. Above n 2, 26. Rachel E Farber, ‘Immunity or Impunity? How current U.S interpretation of diplomatic immunity facilitates diplomatic abuse of A-3 domestic workers’ 2 Journal of Migration and Regfugee Issues 63 (2005) 67. 5 Ibid, Farber. See also Migrant Rights Centre Ireland, Protecting Diplomats Employed by Diplomats in Ireland (2011) Migrant Rights Centre Ireland < http://mrci.ie/wp-content/uploads/2012/10/Policy-Paper-Diplomatic-Immunity-2011.pdf>. 6 Gulnara Shahinian, Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, 15th sess, Agenda Item 3, UN Doc A/HRC/15/20, HRC (18 June 2010), [57]-[58]. 7 European Parliament resolution on regulating domestic help in the informal sector (30 November 2000) 2000/2021(INI), L and Article 18 located at <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P5-TA-2000-0542+0+DOC+XML+V0//EN> (accessed 28 October 2013). 8 Martin Salter MP, Hansard, Column 251WH (Mar. 17, 2010), cited in Virginia Mantouvalou, ‘Human Rights For Precarious Workers: The Legislative Precariousness Of Domestic Labor’ (2012-2013) 34 Comparative Labour Law and Policy Journal 133, 143. See also US Department of State; United States of America, ‘Government Action to Address Involuntary Domestic Servitude’, (2012) Department of State 9 See for example Angelika Kartusch, ‘Domestic Workers in Diplomat’s Households, Rights Violations and Access to Justice in the Context of Diplomatic Immunity’ (Study, German Institute for Human Rights and EVZ, June 2011). Kalayaan, Latest News

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(In)securities, International Protection and the Law

Diplomatic Immunity Diplomatic immunity from a host state’s criminal and civil jurisdiction is enshrined in the Vienna Convention on Diplomatic Relations 1961 (Vienna Convention). Although immunity bars legal action against diplomats, it is a procedural shield and does not remove underlying substantive liability.12 The Diplomatic Privileges and Immunities Act 1967 codified diplomatic immunity in Australia.

The Law Falls Short Australian courts are yet to hear a matter relating to human trafficking and slavery in a diplomatic household. Although international courts have considered the matter, it has wielded few tangible benefits for victims.

In the United States, courts narrowed the application of residual diplomatic immunity to hear cases labour exploitation once a diplomat has left their post. On finishing a post, diplomatic immunity only continues in regards to “the exercise of functions as a member of the mission”.13 In 2010, the US Court of Appeals limited its interpretation of residual immunity to acts that “are directly imputable to the state or inextricably tied to a diplomat’s professional activities”14 on the basis there is no longer functional necessity for diplomats to maintain broad immunity.15 Thus, claims relating to a diplomat’s household or personal life may be subjected to civil action.16 Courts in Britain have also adopted this reasoning. 17 Since 2010, domestic workers in the US have filed at least seven cases against diplomat-employers alleging labour exploitation or trafficking, eight similar cases were settled or voluntarily dismissed and one case ended in a $1.4 million settlement for the plaintiff.18 However, victims

who have difficulty enforcing judgments as diplomats, no longer required to remain in their host state, move overseas.19 Thus this legal solution provides a “moral victory” rather than compensation.20 Unfortunately, attempts to prosecute diplomats during their posting have failed. Although the Vienna Convention contains an exception to diplomatic immunity for “professional or commercial [activities] exercised…outside [a diplomat’s] official functions”21 courts in the United States found the exception applies only to “pursuits of trade or business”.22 This rejects arguments that the exception should apply to “all activities of a commercial nature”, including employment relationships,23 on the basis the exception was originally drafted as a “professional activity” exception and member states did not intend to deprive diplomats of immunity for day-to-day activities.24 Similarly, the International Court of Justice has rejected arguments that the normative hierarchy theory limits immunity. Academics argue that where a diplomat subjects an employee to forced labour or involuntary servitude the courts should waive immunity because the crimes are jus cogens norms,25 and diplomatic immunity is not.26 However, in handing down a decision on state sovereignty the ICJ held that immunity, as a procedural rule, exists on a different spectrum to jus cogens norms, which are substantive rules. Because the two principles do not interact, there can be no conflict,27 and a court cannot waive immunity.

Prevention

example, the Government of Switzerland established a database of diplomats offering employment to assist domestic workers fleeing abuse to find alternative employment while remaining on their visa.28 Other countries focus on strengthening visa criteria and procedures,29 such as Austria, which requires evidence of a bank account in an employee’s name and a floor plan of the intended residence to ensure domestic workers have their own room, before granting a visa. The Protocol Department reserves the right to request proof of transfers of the employee’s salary at any time.30 Currently, Australia only requires a copy of an employment agreement that complies with Australian law, written in English, to grant a visa for diplomatic domestic workers and there are no support programs for domestic workers subject to exploitation. Australia should do more to ensure victims of human trafficking and slavery are quickly identified, removed from the situation and given options other than deportation.

As it currently stands, diplomatic immunity favours the political and procedural rights of diplomats over the human rights of domestic workers. Courts and government bodies have limited power to adjudicate claims brought by domestic workers. Therefore, Australia should consider developing stronger policies of protection that are specifically targeted at domestic workers in diplomatic households.

If Australia values its freedom and strong workplace protections it is vital we ensure they extend to all workers in Australia, especially the most vulnerable.

As the law offers limited recourse for victims of human trafficking and slavery in diplomatic households, Australia should consider adopting procedures to prevent its occurrence. For

Kalaayan <http://www.kalayaan.org.uk/>. Above n 5. 10 Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth), ss 270.6A and 270.5. Anti-Slavery Australia, Australia’s New Slavery and Trafficking Laws, Anti-Slavery Australia <http://www.antislavery.org.au/images/stories/other-sl/Factsheet_Slavery_Bill_-_Anti-Slavery_Australia.pdf>, Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 (Cth), 3. 11 Interdepartmental Committee on Human Trafficking and Slavery, Trafficking in Persons the Australian Government Response 2013-2014, Report Paper no 6 (2014) 1. 12 German Institute for Human Rights, above n 9, 17 13 Ibid, article 39(2) 14 Swarna v Al-Adwadi 622 F.3d 123 134-135 (2nd Cir, 2010) cited in Wokuri v Kassam [2012] EWHC 105 (Ch) 19. 15 Ibid. Swarna, 137 cited in Wokuri, 18. 16 Ibid. 17 Tabion v Mufti 877 F.Supp 285, VI (D ED, 1995). See also above n 16 Wokuri, 25-27. 18 Martina E. Vandenburg and Alexandra F. Levy, ‘Human Trafficking and Diplomatic Immunity: Impunity no more?’ 7 Intercultural Human Rights Law Review 77 (2012) 88, 95 19 German Institute for Human Rights, above n 9, 33-34 20 German Institute for Human Rights, above n 9, 34 21 Above n 13, article 31(1)(c) 22 Above n 19, IV-V 23 Above n 19, argument put forward by Tabion at III.24 Above n 19, IV Rachel E Farber, ‘Immunity or Impunity? How current U.S interpretation of diplomatic immunity facilitates diplomatic abuse of A-3 domestic workers’ 2 Journal of Migration and Regfugee Issues 63 (2005) 67, 75 and 81-82. Mantouvalou, above n 8, 154. 26 Above n 25, 81 27 Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) (Judgment) [2012] 28 ibid.29 Advocated by the Migrant Rights Centre Ireland, see n 5, 4.30 German Institute for Human Rights, above n 9, 23-24

(In)securities, International Protection and the Law

25

Disease & Governance: a Primer on Biosecurity

ROBERT GUZOWSKI examines the relationship between disease and governance, particularly in light of the Ebola pandemic, in order to evaluate the strengths of national legislation and global health organisations in combating and controlling epidemics.

On 10 August 2010, the World Health Organisation (WHO) downgraded the status of the H1N1/09 ‘swine flu’ to post-pandemic; by this stage, the disease had accumulated laboratory confirmed cases in 214 countries, including at least 18,449 deaths, since it was first reported

by WHO on 24 April 2009. While horrifying, this casualties figure does not tell the whole story, since according to WHO: ‘The reported number of fatal cases is an under representation of the actual numbers, as many deaths are never tested or recognized as influenza related.’1 The more recent outbreak of Ebola virus (EBV) disease has, as of 24 May 2015, resulted in 11,147 confirmed deaths; of the over 20,000 confirmed cases, only seven have been reported outside of West Africa.2 The surveillance and global coordination carried out by WHO in response to H1N1/09, as well as in response to the much less widespread EBV outbreak, was enabled and guided by the Revised International Health Regulations 20053 (‘the IHR’). By the end of the 20th century, the original International Health Regulations 1969, a framework for the monitoring and control of cholera, plague and yellow fever, was proving outdated, unwieldy and narrow-scoped in the face of modern understanding of threats to health and greater ability for global cooperation. The World Health Assembly, the governing body of WHO, resolved at its 48th session in 1995 to revise the International Health Regulations 1969 in order to better deal with re-emerging diseases, the high-profile AIDS crisis, as well as other biological, chemical and radioactive threats to health. In 2003 came the outbreak

1. Enrique de Loma-Ossario, Carmen Lahoz and Luis F. Portillo, ‘Assessment on the Right to Food in the ECOWAS region’ (2014) Food and Agriculture Organization of the United Nations, Rome, 31.2 According to the latest estimates from the Food and Agriculture Organization of the United Nations (FAO).3 Further, the Global Food Security Index published by the Economist shows that food security has improved in almost every region in the world in the past year. 4 Universal Declaration of Human Rights, art 25(1). 5. Charter of the United Nations art 55 and 56. 6 International Covenant on Economic, Social and Cultural Rights art 11(2). 7 International Covenant on Economic, Social and Cultural Rights art 2. 8. Convention on the Elimination of All Forms of Discrimination Against Women art 12 and 14. 9. Convention on the Rights of the Child, art 25 and 27. 10 Voluntary guidelines to support the progressive realization of the right to adequate food in the context of national food security, Food and Agriculture Organization of the United Nations, Rome, 2005. 11 Enrique de Loma-Ossario,

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Currently the IHR protects global health by ensuring that disease events with potential to become PHEICs are reported by States.8 It empowers WHO to make recommendations that can signi�icantly alter the flow of persons or property between States once a PHEIC has determined by the WHO Director-General in consultation with the affected State(s).

of the severe acute respiratory syndrome (SARS). While at this stage the role of WHO in dealing with outbreaks had not been expanded and codified under the IHR, there had been steps in that direction with WHO-branded response teams – for example, the Global Outbreak Alert and Response Network (GOARN) – under development since 2000.4 The handling of the disease outbreak, as well as the eventual identification of the causative agent (the SARS coronavirus), by WHO in coordination with the affected States led to a much greater readiness by the international community to vest WHO with greater powers of surveillance and advice in dealing with any “public health emergency of international concern”5 (PHEIC). While this has comes at a definite cost to the absolute sovereignty of the WHO Member States, the drafting of the IHR was made with a continued emphasis of the “full respect for the dignity, human rights and fundamental freedoms of persons”6 and the enabling of responses “which avoid unnecessary interference with international traffic and trade”.7 Currently the IHR protects global health by ensuring that disease events with potential to become PHEICs are reported by States.8 It empowers WHO to make recommendations that can significantly alter the flow of persons or property between States once a PHEIC has determined by the WHO Director-General in consultation with the affected State(s).9 However, an effective response requires that individual States are prepared with adequate resources and systems in place for the surveillance, reporting and responding to such events, as mandated by the IHR.10 The IHR provides for the development of such capacity in Member States with the cooperation and assistance of WHO,11 but also states that in pursuance of their national health policies, Member States “should uphold the purpose of these Regulations.”12 The full and effective operation of the IHR therefore requires Member States to legislate the establishment of “core capacity requirements for surveillance and response”.13 In Australia, this is soon to be governed by the Biosecurity Act 2015 (“the Act”).14 The Act, along with the accompanying legislation,15 will replace the current Quarantine Act 1908 (Cth). Chapter 2 of the Act pertains to the management of human health risks and contains a number of powers relating to treatment, isolation, contact tracing and restriction of movement of individuals16 as well as their detention by police in cases of non-compliance.17 These powers are exercised as “human biosecurity control orders”18 and can be implemented in response to any “listed human disease”19 or in case of “human biosecurity emergencies”.20 Yet another power exists for the establishment of “human health response zones” with entry and

exit requirements.21 The Act also enables directly giving effect to WHO recommendations under the IHR in terms of general requirements,22 personal directions,23 or any requirements for exit from Australian territory.24 However, the Act, as a comprehensive replacement for the Quarantine Act 1908 (Cth), will cover more than just human health: • • • • • • •

Chapter 1 contains preliminary provisions, Chapters 3-6 deal with management of non-human biosecurity, Chapter 7 with biosecurity industry arrangements, Chapter 8 with both non-human and human biosecurity emergencies, Chapter 9 contains compliance and enforcement powers, Chapter 10 relates to governance of the regime, and Chapter 11 contains miscellaneous provisions generally dealing with administrative review.

And as a comprehensive legislative regime for issues ranging from health to agriculture and from immigration to foreign affairs, the Act requires that coordination and communication be maintained between responsible ministerial departments accordingly.25 The most publicised recent biosecurity incident is without a doubt the Minister for Agriculture, Barnaby Joyce’s #WarOnTerrier. However, previous incidents might make Joyce’s reaction seem more reasonable: recall for example the equine influenza outbreak of 2007, which ended up costing the government over $350 million in the following year.26 Joyce, who introduced the Biosecurity Bill 2015 to Parliament, stated in his second reading speech that Australia’s stringent biosecurity system protects our agriculture production, which in 2013-14 had a total gross value of $53 billion.27 It is this soon to be updated biosecurity system “without which our farmers, the economy and consumers could suffer serious consequences.”28 Joyce then refers to “a recent review commissioned by the Australian Bureau of Agricultural and Resource Economics and Sciences [that] looked at the economic impact of a hypothetical foot-and-mouth disease outbreak in Australia.”29 This review,30 the third31 conducted by government since the outbreak of foot-and-mouth disease in the UK in 2001, reckoned the losses at over $50 billion over 10 years.

Not all biosecurity measures work out quite as predicted, though. The posterchild of Australian bio-tinkering is the cane toad, introduced to combat an infestation of cane beetles that was ravaging the Queensland sugar cane fields; it has since become an interstate ecological menace. An instance of mismanagement of human biosecurity measures would be the stockpiling of Tamiflu and Relenza, which currently represent up to 80% of the $196 million National Medical Stockpile,32 and which have since been found to be far less effective than marketed.33 What seems to be missing from the new regime is some independent scientific oversight of the decisions powers exercised under the Act. The main powers under the Act are vested in the Commonwealth Chief Medical Officer in regards to human biosecurity34 or otherwise in the Parliamentary Secretary for Agriculture.35 The Inspector-General of Biosecurity, appointed by the Minister for Agriculture,36 has power to investigate in order to review the administration of the regime,37 and while there are provisions for judicial review within the Act, some powers will remain in force until final determination of the review.38 These remain-in-force orders, as well as some others made under the Act, are valid “despite any provision of any other Australian law.”39

Carmen Lahoz and Luis F. Portillo, above n 1. 12 For example, the African Charter on Human and People’s Rights (1981).13 Enrique de Loma-Ossario, Carmen Lahoz and Luis F. Portillo, above n 11, 50.14 SERAP v Federal Republic of Nigeria (2012) ECOWAS Court.15 Anastasia Telesetsky ‘Waste not, want not: the right to food, food waste and the sustainable development goals’ (2014) 42 Denver Journal of International Law and Policy 479. 16 Ibid. 17 International Covenant on Economic, Social and Cultural Rights, Art 11(2). 18 Rome Declaration on World Food Security and World Food Summit Plan of Action 1 (1996), at p 36 19 Anastasia Telesetsky, above n 15. 20 Andrew Perry, Keith James and Stephen LeRoux, ‘Strategies to achieve economic and environmental gains by reducing food waste’ (2015) WRAP.

(In)securities, International Protection and the Law

27

Retention vs Abolition: An absolute right to life?

Whilst the death penalty is currently a permissible exception to the ‘right to life,’ not only is it extremely limited in scope, but there is a growing trend moving in the direction of complete abolition. Until this occurs, having the death penalty as a permissible exception to the ‘right to life’ places positive and negative obligations upon states. KIZZY BAGGA examines the competing ideas surrounding the ‘right to life’ and the death penalty through a philosophical and theoretical lens.

Described as the most ‘basic human right of all’, the ‘right to life’ and its preservation, has quickly become one of the most controversial and pressing human rights issues in our current global context.1 As of late, media attention has been drawn to the fact that the construction of the ‘right to life’ is inherently both counter-intuitive and contradictory in its application to the death penalty.2 Even though the move towards abolition is both apparent, and desirable, Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR),3 continues to permit the imposition of the death penalty as an exception to the ‘right to life,’ subject to strict limitations,4 despite some academics claiming the ‘right to life’ has jus cogens or peremptory norm status. States which continue to utilise the death penalty, have in the past, justified this exception by putting forward both retributive and deterrent arguments in support.5 However, these are weak arguments at best, with the favoured approach being to take measures to eradicate the death penalty altogether through the ratification of Supplementary Protocols,6 which better contribute to the enhancement of human dignity.7 Both approaches attract obligations and necessitate compliance, albeit to differing degrees. The former ‘retentionist states’ not only carry negative obligations to not arbitrarily deprive life8 but also positive obligations to not carry out the death penalty unless it is for ‘the most serious of crimes’.9 Abolitionist states on the other hand carry less of a burden with negligible negative obligations, and arguably only a positive obligation to protect their citizens from the death penalty overseas.

‘The Right to Life’ and its status under International Law i. Current state practice and international standards The ‘right to life’ is not a new concept, but has been enshrined in history for centuries.10 The right was found upon the moral principle that each human being has the right to live, and not be unjustly killed. ii. The right to life as a law of the Jus Cogens The international community clearly does not only recognise the ‘right to life’ as next to the right to physical integrity, the most elementary human right,11 but some academics have gone one step further to suggest that the ‘right to life’ has developed into a law of the jus cogens.12 Although the opinions of these academics have merit,13 the reality is that the ‘right to life’ could not be accurately seen as having jus cogens status all the time, largely due to the consistent violation by states who continue to utilise the death penalty.14 Whilst this may be seen as contradictory, it is reflective of the international law and its permission of the death penalty as an exception to the ‘right to life.’

‘The Right to Life’ and its imposing obligations All states signatory to the ICCPR attract obligations imposed by the ‘right to life.’ An obligation has been defined as ‘an act or course of action to which a person is morally or legally bound’15 Whilst it has been suggested that an obligation requires a course of action to be taken, it can also require one to refrain from doing something. The ‘right to life’ has been seen to impose obligations that are both positive and negative in nature,16 although it has been said that states so have a ‘margin of appreciation.’17 In its negative manifestation, all states to the ICCPR are prevented from arbitrarily depriving a person of their ‘right to life,’ unless like America, they have made a reservation. However, the drafting history of Article 6(1) of the ICCPR highlights the emphasis placed upon the states to positively protect life.18 The extent of the positive measures put into place, is largely dependent on whether a state is an abolitionist state or a retentionist state. i. Obligations on Retentionist states ratifying Second Protocol For those states that are signatory to the Second Protocol, obligations are also significant but perhaps less onerous. States have a negative obligation to refrain from utilising the death penalty unless they are at war. Positive obligations are also imposed under such circumstances as these states have a requirement to notify the Secretary General of the United Nations if they go to war, 19 what domestic texts they have authorising the death penalty, as well as the measures their government is implementing to ensure the eventual abolition of the death penalty. 20 If such a state does go to war and under those circumstances enacts the death penalty, then the safeguards outlined above with regard to purely retentionist states would be assumed to apply. ii. Obligations on Abolitionist states It is evident that states that have not yet abolished the death penalty are subject to both positive and negative obligations with regard to the ‘right to life.’ However, the degree of obligation can be seen to significantly less

1 Sandra Babcock, ‘The Global Debate on the Death Penalty’ (2007) 34 Human Rights17; 18. 2 Amrita Mukherjee, ‘The ICCPR as a ‘Living Instrument’: The Death Penalty as Cruel, Inhuman and Degrading Treatment’ (2004) 68 Journal of Criminal Law 507, 518 3 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. 4 McCannn and others v. the United Kingdom, GC Judgment of 5 September 1995, 147, with reference to Soering v. the United Kingdom, judgment of 7 July 1989, para 88 5 Elizabeth Wicks, The Right to Life and Conflicting Interests, (Oxford Scholarship 2010); 119. 6 Second Optional Protocol to the International Covenant on Civil and Political Rights adopted 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991); European Convention on Human Rights, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).7 Rhona K.M. Smith, Textbook on International Human Rights, (Oxford University Press, 6th ed 2014); 222. 8 Ibid.

9 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; Article 6.10 Hugo Adam Bedau, ‘Capital Punishment and the Right to Life’ (2011) Michigan State Law Review 505, 509 11 Hansje Plagman ‘The status of the right to life and the prohibition of torture under international law: its implications for the United States’ (2003) 3 Journal of the institute of

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arduous for abolitionist states. Australia for example, has abolished the death penalty, and as such the government cannot lawfully execute persons. In light of the case of Rush,21 it can also be stated that the right to be free from the death penalty does not impose any positive obligations on the state either, particularly with regard to the Australian government restraining a retentionist state from executing any of their citizens. Whilst this may be the case in Australia, the international community have employed the approach that there is scope for even abolitionist states to have positive obligations placed upon them with by having to ensure guarantees are sought by a retentionist state not to impose the death penalty on any extradited citizens.22 Conclusion The construction of the ‘right to life’ is inherently contradictory in its application to the death penalty. Despite the growing trend towards abolition, international law as it stands allows for the death penalty to be imposed as an exception to the ‘right to life’ under Article 6(2) of the ICCPR albeit

under strict conditions. These provisions reflect the polarised positions of both retentionist and abolitionist states, and despite attempts through deterrent and retributive arguments, it is the view of this writer that they are not strong enough to justify the death penalty as an exception to the right to life. Until abolition is unanimously implemented, the current provisions, irrespective of how strictly they are to be construed, continue to impose obligations on states. On a retentionist state, these obligations encompass a negative obligation to not arbitrarily deprive one of their life, but also positive obligations to only enforce the death penalty for the most serious of crimes. For abolitionist states however, the obligations upon there are less burdensome and merely encompass a positive obligation to seek an express guarantee from a retentionist state that their persons will not be subject to the death penalty upon extradition.

As such, until abolition is achieved, the ‘right to life’ and its permission of the death penalty, will continue to be seen as a pressing human rights issue imposing both positive and negative obligations on states.

justice and international studies 172, 174. 12 Sam Blay ‘The Nature of International Law’ in Sam Blay, Ryszard Piotrowicz, and Martin Tsamenyi (eds) Public International Law: an Australian perspective, (2nd) Melbourne: Oxford University Press, 2005) 15-18. 13 For example: Jaime Oraa, Human Rights in States of Emergency in International Law, Clarendon Press Oxford, 1992, p. 6914 See Above n30; 10815 Oxford Concise English Dictionary, (11th ed, revised) OUP, New York, (2008) p986 16 Lousie McCamphill, ‘The right to life shall be secured to everyone by law: the extent to which the European court of human rights has developed the concept of positive obligations in relation to article 2’ (2010) 2 King’s Student Law Review 103, 104. 17 Council of Europe Human Rights Handbook Series, No.8 The right to life; p518 ACT Human Rights Commission- The right to life legal factsheet, p319 Second Optional Protocol to the International Covenant on Civil and Political Rights adopted 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991); Article 2(3)20 Second Optional Protocol to the International Covenant on Civil and Political Rights adopted 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991); Article 2(2) and Article 3.21 Rush v Commissioner of the Police (2006) 150 FCR 165

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Once the Dust Settles: Humanitarian Aid, Human Rights and International Law Following Natural Disasters DYLAN BARBER examines the disastrous impact of the recent earthquake crisis in Nepal and the response of the international community. Is the current state of Humanitarian Aid enough to safeguard human rights?

In Nepal millions of people are still reeling from the earthquake of 25 April this year, which at the time of writing had left more than 8,000 dead, 23,000 injured and 450,000 people internally displaced. The Nepalese government officially requested assistance on April 26, prompting an immediate response by the United Nations and international aid organisations. Hundreds of millions of dollars has flowed into Nepal from governmental, public and corporate donations, and initial rescue efforts have now turned to providing shelter, food, water and medical supplies to the estimated 8 million people affected.

Yet as the dust settles in Nepal, we are reminded that nowhere are the mechanisms of humanitarian aid more tested than the aftermath of natural disasters in developing countries. As with natural disaster zones before it, on-ground efforts in Nepal have come up against bureaucratic delays, aid supply chain issues and overcrowding by aid agencies; more sinister are reports of human rights abuses amongst the vast regions of rural poor whose homes and livelihoods lie in ruins. To this end, Nepal is a clear reminder of the current absence of substantive International Disaster Response Law to address regulatory problems in the delivery of humanitarian aid, set out the duties and rights of respective stakeholders, govern the quality of aid provided, and ensure fundamental human rights are not another casualty of the disaster. However, there are positive signs that such an international framework is on its way.

History repeating The past decade has witnessed an alarming number of natural disasters: major earthquakes in Pakistan, China and Haiti; Hurricane Katrina in America; and the 2004 Boxing Day and 2010 Japan earthquaketsunamis. While every disaster brings widespread destruction, developing nations have traditionally suffered a higher human cost in terms of death, injury and displacement. Notably, however, this toll between similar disasters is often not relative to the magnitude of the disaster itself. We need only compare Nepal’s 7.8-magnitude earthquake with Haiti, where the lesser 7.0 magnitude earthquake in 2010 nonetheless killed over 220,000 people and displaced over 2 million.1 In framing this discussion, it is therefore important to recognise that no two disasters are the same, and will be compounded by existing vulnerabilities; in the case of Haiti, a country with “systemic poverty, fragile governance, insecurity and a continual threat of natural disasters” and where a third of the population were already acutely food insecure.2 Nepal too has its own existing vulnerabilities: a landlocked country with a similarly fragile government following a decade-long civil war, an isolated and primarily rural population, extremely mountainous terrain, poor transport and telecommunications infrastructure – and all of this further complicated by the imminent June arrival of the monsoon. The United Nations launched a flash appeal on April 29, calling on its humanitarian partners to raise $415 million to address the growing humanitarian needs of those affected by the earthquake. Other UN organs like UNICEF and the World Food Programme have also launched massive aid operations, as have the International Federations of Red Cross and Red Crescent Societies and Doctors Without Borders.

Human rights amidst the chaos Beyond administrative and regulatory issues, human rights have also plagued Nepal. The Inter-Agency Standing Committee (IASC) has recognised a number of concerns in developing nation disaster zones such as the illegal adoption of orphans, trafficking of minors, violence against marginalised groups, or discrimination in the distribution of humanitarian aid.3 It is generally accepted, and regretfully unavoidable, that a rapid onset disaster will result in the breakdown of many existing functions that support the level of human existence in the country concerned.4 However, while patterns of discrimination and disregard for human rights may emerge during the emergency phase of a disaster, the longer the

1 Jonathan Patrick, ‘Haiti Earthquake Response: Emerging Evaluation Lessons’ (Working Paper) OECD Development Assistance Committee, 1.2 Ibid, 2. 3 Erica Harper, ‘International Law and Standards Applicable in Natural Disaster Situations’ (2011) International Development Law Organisai. 4 Peter Tatham and Luke Houghton, ‘The wicked problem of humanitarian logistics and disaster relief aid’ (2011) 1(1) Journal of Humanitarian Logistics and Supply Chain Management, 15, 17. 5 Inter-Agency Standing Committee, ‘Operational Guidelines on the Protection of Persons in Situations of Natural Disasters’ (2011). 6 Erica Harper, ‘International Law and Standards Applicable in Natural Disaster Situations’ (2011) International Development Law Organisation, 4. 7 Strengthening emergency relief, rehabilitation and reconstruction in response to the

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effects of the disaster last, the greater the risk of human rights violations becomes.5 While the IASC has provided a comprehensive guideline for aid workers in natural disaster zones, there remains a persistent call for a more authoritative legal and human rights framework to avoid the ‘lingering disenfranchisement of people, preventing a return to their normal lives.’6 International Disaster Response Law On 13 May 2015 a special UN General Assembly session adopted a resolution on ‘Strengthening emergency relief, rehabilitation and reconstruction in response to the devastating effects of the earthquake in Nepal’.7 However, the bulk of International Disaster Response Law (IDRL) is soft law like this, a patchwork of well intentioned but ultimately non-binding resolutions, declarations and guidelines. It must be recognised that there are a number of bilateral and regional treaties concerning disaster relief, however these are mostly between neighbouring states or regional groups within Europe and the Americas and concern issues like technical assistance and reducing regulatory barriers like visas and customs control for aid goods. To date, there is no multilateral treaty that could give effect to a binding international legal framework for natural disaster relief efforts.

Such a framework is long overdue, and could look to International Human Rights Law for inspiration. IHL is concerned with the regulation of armed conflicts and the protection of persons not participating in those conflicts, and includes a wide canon of multilateral treaties including the Geneva and Hague conventions. While IHL explicitly will not apply outside this context, aid efforts in natural disasters share many of the same regulatory concerns as those in armed conflicts including facilitating the free flow of people, goods and equipment unencumbered by regulatory or bureaucratic burdens, and ensuring aid organisations can easily gain temporary domestic legal personality.

At first glance it may seem that the almost universal consistency with which states are willing to give and receive aid following natural disasters would amount to sufficient state practice so as to form customary international law. However, de Urioste (2006) rightly observed that states in fact respond to disasters on a case-by-case basis, and accordingly it is not possible to demonstrate the requirements extensive and uniform state practice and a belief that such actions are required by law.8 Without treaty or customary international law, the operation of IDRL very limited. Nevertheless, there have been positive steps. In 2008 the UN General Assembly passed three separate resolutions adopting the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (also called the ‘IDRL Guidelines’).

Drafted by the International Federation of Red Cross and Red Crescent Societies, who occupy a unique place in international humanitarian law, the guidelines aim to foster international agreement about primary rights, responsibilities and strategies specific to disaster settings.

They also reinforce that primary responsibility for relief efforts lies with affected states in accordance with their sovereign rights, while setting out a series of recommendations on how to amend domestic laws in order to pose as few barriers as possible to international assistance during relief efforts.9 While non-legally binding, the guidelines are extremely comprehensive.

They are global in geographic scope, relevant for all sectors and for all types of disasters, and address both state and non-state actors.10 Importantly, they also have broad international support, indicating that they may have the potential to contribute to the development of norms under customary international law.

However, more promisingly, the International Law Commission (ILC) is nearing the end of its programme titled ‘Protection of Persons in the Event of Disasters’. At the 66th session of the ILC in 2014, after seven years of consultations, Special Rapporteur Eduardo Valencia-Ospina presented the ILC with a set

of draft articles titled ‘Protection of persons in the event of disasters’. The draft articles, inter alia, impose on states a duty to cooperate between themselves and other stakeholders, a duty on affected states to seek assistance when a disaster exceeds its national response capacity, and most importantly a duty on states to make provisions within domestic legislation for the entrance and movement of accredited personnel, and the prompt importation of goods and equipment. Encouragingly, Article 6 also provides that “Persons affected by disasters are entitled to respect for their human rights.”

The articles are open for observations until 1 January 2016 at which point the Law Reform Commission will finalise the document, and while it is unclear as to the form such a legal instrument might take,11 it is hoped it will form the foundation of a binding multilateral treaty.

Conclusion The Nepal earthquake demonstrates that a comprehensive legal framework for international disaster relief is necessary, and the litany of similar natural disasters stretching back into the 20th century show it is long overdue.

International aid efforts often display the best of humanity, and they should be assisted in any way possible by international law to ensure that future disasters receive immediate, quality aid.

With growing acceptance of the IDRL Guidelines and the draft articles of the ILC nearing the end of their review, it appears the wheels are finally in motion.

devastating effects of the earthquake in Nepal, 69 sess, Agenda Item 69(c), UN Doc A/69/L.66 (13 May 2015)8 A. de Urioste, ‘When will help be on the way - the status of international disaster response law’ (2006) 151 Tulane Journal of International and Comparative Law 181, 18 9 Jenny R. Hernandez and Anne D. Johnson, ‘A call to respond: the international community’s obligation to mitigate the impact of natural disasters’ (2011) 25 Emory International Law Review, 1087.10 Elyse Mosquini, ‘Are lawyers unsung disaster heroes?’ (2011) 25 Emory International Law Review, 1217. 11 Ibid, 1231.

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The Modern Day Slave

Forced labour, or slavery, is work or service performed under threat of some sort of penalty, undertaken involuntarily or without the ability to freely leave.1 Often the threat is deportation or reporting individuals to migration authorities.

ALEX EPSTEIN exposes ‘the modern day slave’ within Australian borders.

In July 1833 the English government finally abolished slavery throughout its empire following years of protest and revolts.2 One hundred and eighty-two years on and slavery is still a prominent offence crossing international borders and tainting most major industries.

This is not just a feature of the cheap clothing industry with its use of sweatshops and slavelike conditions but ingrained into many areas of labour including in Australia.

In Australia, migrants who are not fully aware of their rights may be victims of such exploitation.

As globalisation sees a massive migration movement, particularly of migrants seeking better economic opportunities, those desperate for a better life are particular vulnerable to exploitation. Between 2002 and 2011, the International Labour Office (ILO) estimates that 20.9 million people were victims of forced labour, including victims of human trafficking.3 Of this estimate, 55% of victims were female and 26% were children; further, the Asia-Pacific region had the highest number of forced labourers.4 Australia’s position within this region and its multiple agreements amongst countries in this region such as trade agreements, mean that it is in a prominent position to help improve the policy and legislation of the region to combat the crisis.

Yet, Australia itself has victims of slavery and human trafficking. The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 has criminalised slavery, which includes labour and sexual exploitation as well as forced marriage and human trafficking.5 Interestingly, this legislation allows prosecution not just of citizens and perpetrators enforcing slavery within Australia, but of corporations implementing slave-like conditions against their employees.

The international nature of such a crime makes it difficult and unlikely to prosecute corporations in this manner.

Still, the Australian Federal Police has had 469 reports of slavery and human trafficking between 2004 and 2014.6 In May 2015 an ABC report exposed the exploitation of labourers working in slave-like conditions across Australia.7 According to the report, farms supplying major Australian corporations including Woolworths, Coles, KFC and Subway have been implicated in claims of exploitation and slave-like conditions.8 The main victims of this are migrant workers or people on working holiday visas who have little choice and little legal power to control their working conditions.

Whilst it is the ‘middle man’ farmers employing the labourers in these conditions who may be blamed for the physical offences, the major corporations are not innocent parties in the matter. Supermarkets are rewarding farmers with contracts when they can supply produce cheaply, which is often necessarily done by exploiting cheap labour.9 Farmers who are providing a fair wage and fair conditions to their workers can often not compete economically with those who are using exploitative methods.

The ABC report suggests that the main issue is also a lack of regulation over people with certain types of visas as the visas given for working holiday and international students are limited in the ability to get employment making them vulnerable to such exploitation.

Evidentially, despite Australia’s work in criminalising slave labour and working to eradicate it on an international level, there is still potential for abuse within our nation. Ensuring that vulnerable groups such as migrants are protected should remain a priority for the government. Clearly slavery is a feature of the modern day world and is going to continue to be unless dramatic action is taken on a national and international stage.

B E L

O c a la

B in fi w a

W

H 1 International Labour Office, ILO Global Estimate of Forced Labour: Results and Methodology (2012) Special Action Programme to Combat Forced Labour <http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--declaration/documents/publication/wcms_182004.pdf>, p19. 2 E2BN and MLA East of England, Why Was Slavery Finally Abolished in the British Empire? (2009) The Abolition Project <http://abolition.e2bn.org/ slavery_111.html>. 3 Ibid, p 13. 4 Ibid, pp13-15. 5 Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth), div 270-271. 6 Commonwealth of Australia, Trafficking in Persons: The Australian Government Response (2014), <http://www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/Documents/TraffickingInPersons-TheAustralianGovernmentResponse2013-2014.pdf>, p 1. 7 Caro Meldrum-Hanna, Ali Russel & Mario Christodoulo, Labour exploitation, slave-like conditions found on farms supplying biggest Supermarkets (7 May 2015) ABC News, <http://www.abc.net.au/news/2015-05-04/ supermarkets-food-outlets-exploit-black-market-migrant-workers/6441496>.8 Ibid.9 Ibid.

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(In)securities, International Protection and the Law

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Spotlight on Social Justice Global HIV & Global Patent Laws: New UN Initiatives DIANA SEMAAN reflects on the wise words of the Honorable Michael Kirby who addressed UTS students earlier in the year. His Honour traced international developments regarding AIDS and the supposedly universal right to health.

Echoing the sentiments of an extensive academic and judicial career, the Honorable Michael Kirby, former High Court Justice, addressed the history of international developments in the discovery of Auto Immune Deficiency Syndrome, and the competing interests within mutually coexistent international principles of the universal right to health, and the right to scientific production.

Acknowledging mutually co-dependent liberties within the International Covenant of Economic, Social and Cultural Rights, his Honour addressed the past and future progression of UN initiatives towards maintenance of HIV treatment and future initiatives involving a balance between the respective legal regimes. That is, the highest attainable standard to physical/mental health by international standards,2 and the right to enjoy the benefits of scientific process and applications, with particular interest to matters of scientific and material interest of scientific production, of which one is author.3 The balancing of the respective competing rights, whilst seemingly simple, has shadowed past and present efficacy in attempts to control the HIV/AIDS pandemic. Paramount amongst possible approaches in containing and eradicating the virus is the role and consequences resulting from inefficient and ineffective laws.4 History of HIV development: Review of international HIV developments begun with the acknowledgment of contributions by Nobel Prize winning French virologists Luc Montagnier and Francoise Barre-Sunoussi and American biomedical research specialist Robert Gallo in the primary identification of the virus. Initial appeals to the UN in the early 1990s regarding the epidemic included the aim of effective and multifaceted goals. As an unfamiliar condition with an uncontrollable mortality rate and multiple methods of transition, traditional

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public health approaches such as the quarantine would prove ineffective and inappropriate. Nonetheless, initial objectives were inclusive of the development of vaccine in ten years and a complete cure for the virus within two decades. Local contributions from Jonathan Mann, a Jewish-American epidemiologist from the former Congo, assisted in triggering international efforts through the primary identification of the virus as Auto Immune Deficiency Syndrome (AIDS) and through appeal to visiting Director-General of the World Health Organisation, Dr. Haflen Mahler.5 In June 2001, relevant government representatives attended an urgently assembled 26th session of the UN General Assembly: ‘the Declaration of Commitment to HIV/AIDS’.6 The resolution included an acknowledgement and address of the epidemic in all contributable aspects and a comprehensive commitment of enhanced and coordinated regional and intergovernmental efforts.7 Notable in these efforts was a particular focus towards regional and sub-Saharan Africa, considered the worst effected region, accounting for 75% of the global AIDS population and nearing a state of emergency from the resulting economic and socio-political impact.8 Two-tier approach “I have been a witness to the epidemic of HIV/AIDS, virtually from the beginning. In Australia, the heaviest toll fell, and still falls, on the homosexual community”.9 Having lost a dozen personal friends to the virus, his Honour reflected upon decades of personal, academic and professional experience in the identification of, and development of, initiatives towards what remains ‘the first worldwide epidemic to occur in the modern era of human rights’.10 This complimented a human rights approach as opposed to traditional methods of public health concerns for multiple reasons. The HIV/AIDS virus immediately generated a population infected or at risk that was far too large for quarantine, no known vaccine had been developed, the disease remained dormant or latent for a much longer time than other infections, furthermore the methods of transmission of the virus made deemed traditional restrictions and punishments towards the ill disproportionate and inappropriate. As an evident pandemic in 1996, the AIDS Commission in Geneva primarily addressed the human rights response to the World Health Organisation as a necessity in future resolution.11 The resolution addressed the vulnerability and victimization of particular sectors of

Decline of the efficacy of first line pharmaceuticals:

“How do you judge a fair price in an invention, where on the other hand, if people don’t get it, they die? How do you pitch against pro�its, and the need for pro�its, for such inventions?”1 The Hon. Michael Kirby

populations, particularly in the developing world, of women, children, homosexuals, in-vitro drug users and babies breastfeeding from infected mothers. Discriminatory legal standards for these groups, along with an inability to administer effective medications due to high costs resulted in the development of a ‘two-tier’ multi faceted approach to containing and eradicating the HIV virus. The primary objective of the approaches included the development of social initiatives encouraging preventative behavioural changes and the balancing of pharmaceutical patents with exceptions in matters of national health crisis.

Traditional medications, however effective, proved slow and inefficient in production and distribution efforts due to the costs involved. Prior to 2001, original patent law restricted the access of AIDS medication to two million individuals. The establishment of the ‘Bolar Exception’ in the Doha Ministerial Conference at the World Trade Organisation declared the agreement of the Trade Related aspects of Intellectual Property rights (TRIPS) to be interpreted with the exception of permitting the generic production and distribution of medications prior to the expiry of patents in the instance of public health emergencies such as the HIV/AIDS epidemic. By 2004, India and Brazil accounted for 80% of generic and ‘anti-retroviral’ triple combination medications being provided to infected or at risk civilians.

Within a decade, the number of those receiving treatment rose to 15 million.

Modern day challenges: Following the Bolar Exceptions, international efforts faced several further challenges to the efficiency and efficacy of pharmaceutical production, distribution and administration:

Along with decreased financial contributions, both patented and nonpatented pharmaceuticals alike began experiencing a decreased virologic and immunologic response to treatments and more dramatic side effects, particularly for longer-term HIV patients. As second, third and fourth line therapies remain patented, aforementioned target groups risk increased mortality rates and risks of infection.

Global Development Global Commission of HIV and the Law: Upon consideration of future development, his Honour addressed global commission recommendations that are yet to be achieved. In his view, there is a need for a global panel and for special protection and incentives for developed and developing states to cease or avoid the signing of unequal and ineffective trade agreements. Paramount to the discussion of global initiatives is a conglomeration of former bodies to focus on contemporary public health challenges. The establishment of the Global Commission of HIV and the Law integrated efforts in eliminating discrimination, sociocultural behavioural therapies, pharmaceutical lobbying and contribution seeking that stemmed from previous UN Development Program initiatives.

Trans-Pacific Partnerships Agreement: Additional future developments include the recently exposed Trans Pacific Partnership Agreement, a proposed regional regulatory and investment treaty drafted by the United States in secret and involving 19 countries in the Asia Pacific. Since the discovery of the treaty, the secrecy of the agreement has been criticised due to the importance of the subject matter of agricultural, industrial and intellectual property standards in the region.

The agreement has been criticised as raising concern of implications and the democratic process within the context of reformative law.

In his concluding remarks, his Honour noted correspondence received by American economist Jeffrey Sachs, in response to suggestions to ‘fast – track’ the recent Trans Pacific agreement. As an expert in transitional economic policy, Sach’s outlined the 30 evident chapters currently under negotiation as mostly inclusive of international business law and investment agreements, with the benefit of rushing international treaties as a benefit to profiting companies rather than the general public. Without democratic scrutiny of such agreements, oversight of competing rights that challenge the efficacy of bodies such as the Global Commission of HIV become possible. His Honour proceeded to conclude: “It is an issue for the economy, constitutionalism and the capacity of democratic government to act in the best interest of the health of the public, especially with weaker countries of minimal influence to which such agreements will prove most relevant.”12

Global Financial Crisis: The significant decrease in GDP growth and foreign direct investments during and following several notable economic events resulted in a naturally altered financial capacity from the developed world to groups such as the Global Fund to fight Aids, Tuberculosis and Malaria (GFATM). Groups and states such as the United States, Australia and Spain significantly decreased foreign contributions hindered the capacity of future pharmaceutical production.

1 Hon. Michael Kirby AC CMG. ‘Global HIV & Global Patent Laws: New UN Initiatives’ Speech delivered at University Technology Sydney, Chan Chu Wak Building, 13 May 2015. 2 International Covenant of Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered in to force 3 January 1976), art 12(1), 12(2). 3 Above, n1, art15(b), 15(c). 4 Hon. Michael Kirby AC CMG. ‘The never-ending paradoxes of HIV/AIDS and human rights’ (2004) African Human Rights Law Journal 4 (2), 167. 5 Above, n3, 165. 6 United Nations General Assembly. ‘Review of the problem of autoimmune deficiency virus/acquired immune deficiency syndrome in all its aspects’, Agenda item 179 UN Doc A/Res/55/13 (16 November 2000) [2], [4]. <http://www.un.org/ga/aids/docs/aress262.pdf> 7 Hon. Michael Kirby AC CMG. ‘The never-ending paradoxes of HIV/AIDS and human rights’ (2004) African Human Rights Law Journal 4 (2), 167, United Nations General Assembly. ‘Review of the problem of autoimmune deficiency virus/acquired immune deficiency syndrome in all its aspects’, Agenda item 179 UN Doc A/Res/55/13 (16 November 2000) Annex 1.1, [2], [4]. 8 Above, n5. 9 Above, n3, 165. 10 ibid. 11 Above, n2, [7], [9]. 12 Above, n.

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Truth and Reconciliation in Cambodia: A Work in Progress An evaluation of the reconciliatory efforts in the Extraordinary Chambers in the Courts of Cambodia

by JACK FOGL.

At the forefront of reconciliatory efforts in Cambodia is the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’). This special Cambodian Court, with the assistance of the United Nations, has been charged with ascertaining the truth behind the alleged crimes committed during the Khmer Rouge regime. However, by its very nature, the ECCC goes beyond a determination of criminal guilt.1 In dealing with such a complex, historical atrocity, the ECCC’s judicial process inherently recognises the suffering of victims and functions to restore the ‘moral equilibrium’ between perpetrators and survivors.2 This social reconstruction is coupled with an educative scheme that functions to consolidate the Court’s reconciliatory efforts.3 An assessment of the ECCC’s effectiveness in their capacity as a reconciliatory institution must be examined in light of Cambodia’s history, as it is within this historical framework that the Court derives its purpose.

The Court The ECCC was established on 29 April 2005 and currently handles four cases. The judgment for Case 001 has been delivered, resulting in a life sentence for Kaing Guek Eav, a former Khmer Rouge prison chief.4 The proceedings for Case 002 are underway, trying two alleged leaders of the regime on charges of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949 and breaches of the Cambodian Penal Code 1956. Beyond this, there are the subsequent cases of Case 003 and 004, which are yet to move beyond the investigatory stage and have been fraught with allegations of political interference. In order to understand this interference, one must consider it in light of Cambodia’s turbulent political past.

History Political manipulation and abuse has permeated Cambodia’s modern history, something that Nathan describes as ‘the lawless scramble for self-interest’.5 Between Lon Nol’s coup d’état in 1970, the Khmer Rouge uprising in 1975 and the Vietnamese invasion in 1979, the Cambodian people have suffered under what Ikeda describes as successive, ‘one-party authoritarian regime[s]’.6 This abuse has naturally fostered social mistrust in political institutions, something that threatens to delegitimise the ECCC as a government-backed institution.

The current government, under the leadership of Hun Sen, has continued this historical tendency for political manipulation. Hun Sen’s control extends to the judicial system, which he has used ‘to silence or intimidate some of his opponents’.7 This disregard for judicial independence threatens the ECCC, damaging public confidence in the legal system, and working to delegitimise the Chambers’ status as a legal institution. In 2008, it was found that only 67% of Cambodians believed in the ECCC’s neutrality.8 Of those who lacked said confidence, 31% attributed their belief to the Chambers’ association with the Cambodian government.9 In the space of six months, two International CoInvestigating Judges resigned, with one citing the ‘attempted interference by Government officials’ as the reason for his departure.10 As noted by a former International Co-Prosecutor from the ECCC, it is of fundamental importance that ‘Cambodian people see proper legal process taking place’.11 If the ECCC continues to be perceived as condoning political interference, it will lack the legitimacy and respect it needs in order to facilitate any reconciliatory purpose.

Reconciliation A central facet of reconciliation is the notion of transitional justice. The United Nations defines

transitional justice as the processes ‘associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation’.12 As noted by Bockers et al, the three most prevalent processes to address this legacy are retributive justice, restorative justice, and education.13 In order to critically assess the ECCC’s role in the reconciliation process, each of these methods must be examined.

Retributive Justice Retributive justice focuses on ‘the moral duty to punish wrongdoing’ and acknowledges individual accountability as a means of promoting reconciliation.14 Accountability is valued as an important reconciliatory measure amongst victims, with 42% of Cambodians who lived under the regime naming punishment as an important precondition to their forgiveness.15 However, pursuant to ECCC Law, the Chambers can only try two categories of alleged perpetrators; senior leaders of Democratic Kampuchea and those believed to be most responsible for the crimes committed between 17 April 1975 and 6 January 1979.16 This limited jurisdiction poses a challenge to the ECCC’s reconciliatory efforts. Many victims are forced to live alongside perpetrators with the knowledge that these low-level culprits will never face prosecution.17 In fact, there are only five final suspects being investigated for Cases 003 and 004, meaning that if they ever proceed to trial, the maximum number of alleged perpetrators to be brought before the ECCC will be eight.18 This figure, when considered in light of the millions of alleged victims, forces one to question whether retributive justice, and the apportionment of criminal guilt is best serving the interests of the victims. Furthermore, many victims struggle ‘to link the punishment of [Khmer Rouge] leaders with forgiveness [of] the low level perpetrators’.19 This disparity has led some victims to claim that

1 Duncan McCargo, ‘Politics by other means? The virtual trials of the Khmer Rouge tribunal’ (2011) 87 International Affairs 613, 613. 2 Susan Jacoby, Wild Justice: The Evolution of Revenge (Harper and Row 1983) 14. 3 Estelle Bockers et al, ‘Reconciliation in Cambodia: thirty years after the terror of the Khmer Rouge regime’ (2011) 21 Torture 71, 72-3. 4 Prosecution v Kaing (Judgment) (Extraordinary Chambers in the Courts of Cambodia, Supreme Court, Case No 001/18-07-2007-ECCC/SC, 3 February 2012). 5 Andrew Nathan, ‘Review of Cambodia’s Curse: The Modern History of a Troubled Land’ [2011] Foreign Affairs 24, 24.6 Ken’ichi Ikeda, ‘Social and Institutional Trust in East and Southeast Asia’ (Paper presented at the Conference of the Taiwan Democracy Program: Center on Democracy, Development and Rule of Law, Bechtel Conference Centre, 25 May 2012) 10. 7 David Chandler, ‘Cambodia in 2009: Plus C’est la Même Chose’ (2010) 50 Asian Survey 228, 230 8 Phuong Pham et al, ‘After the First Trial: A Population-Based Survey on Knowledge and Perceptions of Justice and the Extraordinary Chambers in the Courts of Cambodia’ (Research Report, Human Rights Center of the University of California Berkeley, 2011) 4. 9 Ibid. 10 Extraordinary Chambers in the Courts of Cambodia, ‘Statement by the International Co-Investigating Judge’ (Press Release, 10 October 2011) < http://www.eccc.gov.kh/en/articles/statement-international-co-investigating-judge>.11 Say Mony, ‘With Trial Underway, Tribunal Faces Questions of Legacy’, Voice of America (online), 5 December 2011 <http://www.voacambodia.com/content/with-trial-under-way-tribunal-faces-quest ions-of-legacy-135024278/1356258. html>.12 United Nations, ‘Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice’ (Guidance Note, United Nations, March 2010) 2. 13 Bockers et al, above n 3, 72-3. 14 Michael T Cahill, ‘Retributive Justice in the Real World’ (2007) 85 Washington University Law Review 815, 818.15 Phuong Pham et al, ‘So We will Never Forget: A Population-Based Survey on Attitudes About Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia’ (Research Report, Human Rights Center of the University of California Berkeley, January 2009) 29. 16 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, signed on August 10 2001, NS/RKM/0801/12 (entered into force 27 October 2004) art 2. 17 Akbar Meirio, ‘Transitional Justice and Reconciliation Process in Cambodia: The Perspective of Survivors’ (2009) 7 The Asian Scholar 1, 8. 18 Alex Bates, ‘Law as a Solution: Transitional Justice in Cambodia’ (Analytical Report,

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the trial will only bring ‘partial justice for them’, as they closely associate their suffering with the actions of low level perpetrators.20 However, it is important to note that this limited jurisdiction is a product of the inherent complexity of retrospective justice. There is a fine balance that must be struck between accountability and trial practicality. Trying all perpetrators of the regime is not feasible, and accordingly ‘the selection of whom to prosecute has presented a recurring challenge…in post-atrocity situations’.21 Restorative Justice Tierney defines restorative justice as ‘a systematic response to wrongdoing that emphasises healing the wounds of victims, offenders, and communities’.22 Crocker defines three stages in this process. It begins with “simple coexistence”, which then develops into “democratic reciprocity” and finally results in a reconstruction of the social bonds between former victims and perpetrators.23 The need for this reconstruction is evinced by the fact that 84.6% of Cambodians who lived under the regime indicated that they still harboured feelings of hatred towards those who were responsible.24 A further 39.3% said they would take revenge on perpetrators if they had the opportunity.25 If left unaddressed, this underlying sentiment will prevent meaningful reconciliation in Cambodia.26 The ECCC attempts to facilitate social reconstruction through their promotion of victim participation in the proceedings. The ECCC is the first war crimes tribunal ‘in which the role of the victim is not restricted to that of a witness’.27 This scheme has been described as ‘ground-breaking and unprecedented’.28 If a victim can demonstrate that they suffered physical, psychological or material harm as a result of a crime being investigated by the court, they may be admitted as Civil Parties.29 If admitted, the victims are considered a party to the proceedings,30 and are entitled to representation.31 This has been applauded as a means of not ‘exclud[ing] victims from the justice that is being dispensed on their behalf’.32 Any reconciliatory effort must ‘account for the survivors’ views and perceptions’33 and this process may restore a victim’s dignity by bestowing ‘a sense of agency…that the original abuse sapped’.34

Education Education aims to transform the animosity and misconceptions that shroud the regime, and is seen by some as ‘the most important tool in the quest for reconciliation’.35 It forms an integral component of a ‘multifaceted approach to preventing future mass atrocities’.36 In terms of achieving this educative focus, the ECCC has strived to facilitate public observation of the trial. Through their Outreach Program, the ECCC has worked with non-governmental organisations to support the free transportation of Cambodians to and from the Court in Phnom Penh.37 This has resulted in the unprecedented participation of Cambodian people in the trial. Since the first day of proceedings in 2009, through to 23 February 2015, a total of 165,407 people, including Cambodian citizens from all 24 provinces, have observed the trial in person.38 As noted

by Scheffer, ‘[t]hat number exceeds the total number of spectators for the Nuremberg and Tokyo military tribunals after World War II, the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Special Tribunal for Lebanon, and the International Criminal Court, combined’.39 A fundamental feature of a successful reconciliatory institution is ‘the engagement and participation of the national population’, and is something the ECCC has certainly achieved.40 This unprecedented level of engagement promotes transparency in the legal process, educates individuals about the Khmer Rouge atrocities, and ensures that the ECCC is not ‘divorced from the realities of the [country] in which the offences occurred and from the lives of the survivors’.41 The reconciliation process in Cambodia is an inherently difficult task, a difficulty that has only been compounded by Cambodia’s history and political climate. There is no denying that some of these hurdles have translated into deficiencies within the reconciliation process. However, there is undeniable progress being made through the court’s victim participation, its educative drive and promotion of accountability. As a novel, hybridised court, there were always going to be obstacles. However, the ECCC is making undeniable, positive progress, and national reconciliation, as like much at the Court, is a work in progress.

ATLAS Project, October 2010) 6.19 Meirio, above n 17, 11.20 Ibid, 8. 21 Randle DeFalco, ‘Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law’ (2014) 8 Genocidal Studies and Prevention 45, 45 22 Nathan Tierney, ‘Religion, the Globalization of War, and Restorative Justice’ (2006) 26 Buddhist-Christian Studies 79, 80. 23 David Crocker, ‘Forgiveness, Accountability and Reconciliation’ (2000) 2 Perspectives on Ethics and International Affairs 7, 13-4. 24 Pham et al, ‘So We will Never Forget: A Population-Based Survey on Attitudes About Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia’, above n 15, 29. 25 Ibid. 26 J Sonis et al, ‘Probable Posttraumatic Stress Disorder and Disability in Cambodia: Associations with Perceived Justice, Desire for Revenge and Attitudes Toward the Khmer Rouge Trials’ (2009) 302 Journal of American Medical Association 527, 530.27 Bockers et al, above n 3, 76. 28 Andrew F Diamond, ‘Public Comment on Proposed Changes to Civil Party Participation before the ECCC’ (Public Comment, Documentation Centre of Cambodia, 2 December 2009) 1. 29 Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Ver 9) (adopted 16 January 2015) r 23bis (1).30 Ibid r 23(1)(a). 31 Ibid r 23(3). 32 Seth Mydans, ‘In the Khmer Rouge Trials, Victims Will Not Stand Idly By’, The New York Times (online), June 17, 2008 < http://www.nytimes.com/2008/06/17/ world/asia/17cambodia.html?n=T op%2FNews%2FWorld%2FCountries%20and%20Territories%2FCambodia&_r=0>.33 Suzannah Linton, Reconciliation in Cambodia (Documentation Centre of Cambodia, 2004) 62. 34 Jamie O’Connell, ‘Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their Victims?’ (2005) 46 Harvard International Law Journal 295, 337. 35 Bates, above n 18, 81. 36 Rebecca Gidley, ‘The Extraordinary Chambers in the Courts of Cambodia and the Responsibility to Protect’ (Working Paper No 1, Asia-Pacific Centre for the Responsibility to Protect, 22 August 2010) 28. 37 John Ciorciari and Anne Heindel, ‘Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal’ (2014) 35 Michigan Journal of International Law 369, 422. 38 David Scheffer, ‘What Has Been ‘Extraordinary’ About International Justice in Cambodia’ (Speech delivered at the William and Mary Law School Williamsburg, Virginia, 25 February 2015). 39 Ibid. 40 Bates, above n 18, 85.41 Seeta Scully, ‘Judging the Successes and Failures of the Extraordinary Chambers in the Courts of Cambodia’ (2011) 13 Asian-Pacific Law and Policy Journal 300, 307.

(In)securities, International Protection and the Law

37

Stop.

Hammer Time.

The Responsibility to Protect (â&#x20AC;&#x2DC;R2Pâ&#x20AC;&#x2122;) doctrine obligates individual states and then the international community to protect populations from atrocities such as genocide, war crimes, ethnic cleansing and crimes against humanity.

Our very own editor BIANCA NEWTON and student ROSIE COTTON stepped up to the challenge to answer the controversial question: should the international community subscribe to the R2P doctrine?

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(In)securities, International Protection and the Law

YES:

NO:

As prospective lawyers, this is an issue we grapple with as we strive for rules and regulations that bind people based on social order and moral justification.

But does the international community have a right or responsibility to intervene when a government is not protecting its own citizens? There are plenty who would argue that there is substantial moral and legal basis on which it is believed that the UN doctrine of right to protect (R2P) is essential to ‘deter further use of such weapons, and protect civilians in particular.’1 The investigation carried out by the International Commission on Intervention and State Sovereignty described this moral standing in the argument for military intervention as ‘new activism acting as a long overdue internationalisation of the human conscience.’2 This is certainly reflected in the lack of international assistance in the case of the Rwandan genocide and civil war that saw the international community effectively sit on their hands.3 While it is possible to argue that half a million people may not have been saved by military intervention on the basis of the R2P doctrine, failure to assist reflects negatively on the Universal Declaration of Human Rights (1948) which has ‘…mapped out the international human rights agenda, established the benchmark for state conduct, inspired provisions in many national laws and international conventions, and led to the creation of longterm national infrastructures for the protection and promotion of human rights’.4 Here, the moral justification leads into legal validation, as ‘human rights have become a mainstream part of international law’.5 Thus, some might argue that if we are to believe in international law and the effects these rules have on individual countries, ‘when a state fails in their duties they lose out on a moral right of non-interference.’6 It is understood that this doctrine is not perfect and there are examples of poor execution resulting in a loss of life as witnessed in Iraq. However, this should not rule out International action but encourage ‘the need for prudence and consideration on a case by case basis.’7

Is there a universal conception of human rights? As this is one of the major elements underpinning the UN’s doctrine of R2P it is a valid question and one with a myriad of answers. In retaliation to the arguments created in support of military intervention and international assistance, the question of whether intervention’s plausibility on the basis of moral and legal justification encompassed within the concept of human rights must be answered.

Ludlow illustrates the point that ‘The UN Charter and international law permit intervention under Chapter VII, if one accepts that human rights are not just a domestic affair and have implications for international peace and security as a whole,’8 which demonstrates the shortcomings of imposing human rights. In particular, when referring to cases like Libya and Syria, one must take into account that the concept of human rights does not exist universally as a result of cultural and attitudinal differences which negates the idea that International military intervention is critical to absolve humanity’s sins. In following this idea, it could be argued that this doctrine will never completely satisfy on the basis that, as a westernized concept, human rights can often front as a ‘plain imposition from outside.’9 This is where State Sovereignty comes into play. Despite the views of the UN Secretary General Kofi Annan in regarding the refusal of State Sovereignty as a ‘shield against crimes of humanity’,10 this rule is an important factor that often underpins the very fabric of individual nations. If State Sovereignty is to be followed in its provision of national independence and a definite authority on internal matters, the interference of the international community erodes this important principle.

In regards to practicality, history reveals the failure of international assistance. For example, in 2011 when it became clear that the conflict in Libya was worsening, the UN issued a ‘no-fly zone’ ban over Libya in order to make way for an authorised NATO intervention that reflected this UN doctrine of R2P.11 It is arguable whether this has saved civilian lives as those who have experienced international assistance have stated that relief activities never recovered after the interventions as a result of the increase in danger and rendering the programs ineffective because of the change to local attitudes.12 Thus, the doctrine of R2P has standing but without further developing this principle to incorporate strict criteria, if this is even a possibility, there are clear gaps in the moral and legal justification for International military assistance. As law students, the question to consider is who has the right to impinge on one nation’s sovereignty and rectify the laws they have created that reflect their society’s ideals and beliefs?

By Rosie Cotton

By Bianca Newton

1 John Holmes, ‘Does the UN’s Responsibility to Protect necessitate an intervention in Syria?’, The Guardian (online), 29 August 2013, <http://www.theguardian.com/commentisfree/2013/aug/28/syria-interventionun-responsibility-to-protect>. 2 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (December 2001) <http://naulibrary.org/dglibrary/admin/book_directory/Political_ science/4382.pdf>. 3 D. R. L. Ludlow, ‘Humanitarian Intervention and the Rwandan Genocide’, (1999) 19(1) The Journal of Conflict Studies <http://journals.hil.unb.ca/index.php/jcs/article/view/4378/5055>. 4 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (December 2001) <http://naulibrary.org/dglibrary/admin/book_directory/Political_science/4382.pdf>. 5 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (December 2001) <http://naulibrary.org/dglibrary/admin/book_directory/Political_science/4382.pdf>. 6 A. J. Bellamy, Contemporary Security Studies (Oxford, 2nd ed, 2010) 363. 7 D. R. L. Ludlow, ‘Humanitarian Intervention and the Rwandan Genocide’, (1999) 19(1) The Journal of Conflict Studies <http://journals.hil.unb.ca/index.php/jcs/article/ view/4378/5055>. 8 D. R. L. Ludlow, ‘Humanitarian Intervention and the Rwandan Genocide’, (1999) 19(1) The Journal of Conflict Studies <http://journals.hil.unb.ca/index.php/jcs/article/view/4378/5055>. 9 R. Panikkar, ‘Is the Notion of Human Rights a Western Concept?’ (Speech delivered to the Institut International de Philosophie on Philosophical Foundations of Human Rights, Senegal) <http://www.silentharmony.in/wpcontent/uploads/2012/03/Is-the-notion-of-human-rights-a-western-concept.pdf> 10 Gareth Evans, ‘The Responsibility to Protect: Rethinking Humanitarian Intervention’ (Speech delivered to The American Society of International Law, Washington DC, 1 April 2004) <http://www.gevans.org/speeches/speech103.html>. 11 http://www.un.org/press/en/2011/sc10200.doc.htm 12 John Holmes, ‘Does the UN’s Responsibility to Protect necessitate an intervention in Syria?’, The Guardian (online), 29 August 2013, <http://www.theguardian.com/commentisfree/2013/aug/28/syria-intervention-un-responsibility-to-protect>.

10 Words or Less

Human security, in its simplest form, is the combination of threats associated with war, disease, displacement of populations and the loss of human dignity. At a minimum, human security means freedom from violence and from the fear of violence.

Over the last two decades, the international community has begun to conclude that attempts to ensure the territorial security of nation-states through military power have failed to improve the human condition.

Despite astronomical levels of military spending, deaths due to military conflict have not declined. Moreover, even when the borders of some states are secure from foreign threats, the people within those states do not necessarily have freedom from crime, enough food, proper health care, education, or political freedom.

Are we bearing witness to the erosion of the principles of human security or is the world a more secure place in the 21st century?

40

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(In)securities, International Protection and the Law

‘While citizens flee with no place to go, there is no human security’ - Giselle Capacchione

‘It would be more appropriate if R2P = Right to Persecute’ - David Lin

‘One in nine people are hungry. Is that secure?’

- Sharni Nichols

‘Our world is not secure, where the vulnerable remain unprotected’ - Anna Nowlan

‘Those not free from fear are at the hands of those free to want’ - Adriana Abu Abara

‘The politics of protection is under the guise of human security’ - Edward Napper

‘There is security if your home country can afford a watchdog’ - Anonymous

‘A united international front is needed to bring security to Libya’ - Nicola Colagiuri

‘Governments have forgotten that people lie at the heart of human security ’ - Georgia Pigott

‘Human security should be at the forefront of the post-2015 agenda’ - Maxeem Mikha

‘ Perhaps less secure borders will bring greater human security’ - Janelle Thomy

‘You can’t spell insecurity without security and in’ - Simon Blanckensee

(In)securities, International Protection and the Law

41

Animal Personhood: A Primal Consideration?

LIAM FAIRGRIEVE changes focus to discuss the outcome of a recent American case that shows the world may not be too far off attributing animals with personhood. Should our primitive counterparts be given security too?

It was at the very end, almost as an afterthought, of a mundanely civil episode of Q&A that the ethics philosopher Peter Singer was asked a question jarringly different in content and tone from the rest of the evening’s discussion: It was a fairly tongue-in-cheek question in the “graveyard slot” typically occupied by tongue-incheek questions (Ray Martin being grilled on his favourite Lou Reed song comes to mind). With the exception of Singer, the panellists treated the question as one of little importance. There were vague assertions of the need for strong animal cruelty laws, and Howard Government Minister Amanda Vanstone quipped: “I think I could give… (the lawyers involved) some higher priority jobs”, after which host Tony Jones brought the discussion to an end and closed the program.

The whimsical treatment dished out to this discussion trivialised the plainly important and fascinating case at the heart of the matter: in April, a New York Court granted what essentially amounted to a writ of habeas corpus to two chimpanzees being held in a research laboratory at Stony Brook University.1 Whilst the words “habeas corpus” were later edited out of the ruling, the effect remained the same: that the right to challenge one’s detention before an independent court had been extended to apes, almost exactly 800 years after the Magna Carta laid the foundations for the same rights to be given to their more evolved counterparts.

Understandably, the Non-human Rights Project, the not-for-profit organisation that brought

the case, was jubilant in provisional victory.

It showed in their post-decision rhetoric: “we got our foot in the door. And no matter what happens, that door can never be completely shut again”.2 The decision will almost certainly have farreaching implications for the use of animals in research and experimentation. Animal activists’ celebrations are premature; animal testing won’t stop completely overnight, or even within New York. Indeed, it won’t stop until universities and medical researchers across the globe can agree universally on an alternative.

It nevertheless sets a powerful precedent for any similar cases that come before a court, Australia included. But what would a legal framework under which apes had certain rights of personhood look like? Naturally, animal testing would eventually become a thing of the past, but it seems fallacious to suggest that this case will lead to full civil, social, and political rights for apes.

The distinction between “personhood” (in the sense that it is currently being debated) and the

full rights of a person is articulated within the very case brought forward by the Non-human Rights Project; the element of the case which has yet to be decided is where the chimpanzees are to go if the challenge to their detention allowed under habeas corpus succeeds. Even the Non-human Rights Project accepts that the chimpanzees are not capable of expressing their will explicitly, and their proposal to relocate the chimpanzees to a sanctuary (not to release them completely) is essentially based on a presumption of will.

It is this presumption of will that is often used as a moral guideline for dealing with people with diminished capacity (for example, those in a persistent vegetative state). It is the basic legal and moral rights of personhood that animal activists, for the most part, strive to achieve. It differs significantly from the comical hypotheses of the future that see apes in high political power.3 And yet, it was this far-fetched vision under which Q&A seemed to be conducting its discussion, thereby giving the panellists an excuse to treat the topic lightly, neglecting the very real implications and possibilities of the judgement in New York in April. Whatever one may think of the concept of animal personhood, it deserved far better treatment than that which was meted out by Australia’s premier discussion program in early May.

“If you’re going to give chimpanzees certain rights for being intelligent, emotionally complex and self-aware, does the lack of those qualities in other animals mean they’re being discriminated against on an intellectual level?

And where are their lawyers?”

1 Peter Brooks, ‘Chimpanzees’ right to personhood may ‘narrow the gulf’ between humans and animals’, (ABC News Online) 5 May 2015, <http://www.abc.net.au/news/2015-05-05/chimpanzee-court-case-couldnarrow-gulf-between-humans-animals/6444510>.2 Ibid.3 Alan Yuhas, ‘Chimpanzee representatives argue for animals’ rights in New York court’, (The Guardian Online), 28 May 2015, <http://www.theguardian.com/ us-news/2015/may/27/chimpanzee-animals-rights-new-york-court>.

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(In)securities, International Protection and the Law

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(In)securities, International Protection and the Law

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THE FULL BENCH 2015 Thank you to our contributors for Edition 2.

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Keep an eye on our Facebook page or email the Publications Director, Nicola Colagiuri, at publications@utslss.com with your interest.