Australian Journal of Human Rights最新文献

{"title":"Recent court decisions about the protection of human rights of imprisoned people","authors":"A. Mackay","doi":"10.1080/1323238X.2022.2122690","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2122690","url":null,"abstract":"ABSTRACT The courts have generally not been a very effective tool for protecting the rights of Australians in prison, despite human rights legislation in three jurisdictions (the ACT, Victoria and Queensland). An advancement in protection is represented by the 2021 decisions of the Victorian Supreme Court in Minogue v Thompson [2021] VSC 56 and the Queensland Supreme Court in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, in particular relating to two widespread practices in Australian prisons: strip searching and solitary confinement. This commentary provides an analysis of both decisions and contextualises them within preceding human rights jurisprudence, thereby highlighting the significance of both decisions for the advancement of human rights protection of imprisoned people in Australia.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"435 - 441"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48098900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tribute to James Richard Crawford, delivered Jesus College Cambridge, Saturday 28 May 2022","authors":"P. Sands","doi":"10.1080/1323238x.2022.2149236","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2149236","url":null,"abstract":"James Crawford was a father, a husband, a sibling, a friend, a colleague. He was also the pre-eminent international lawyer of his age, a scholar, an advocate, an arbitrator and, at the end of his life, a judge. James was born in Adelaide, South Australia, in 1948, the first of seven children, his mother a nurse, his father a company director. There was law in the family, his maternal grandmother being only the second woman to graduate in law from the University of Adelaide. He came of age in the 1960s, already an independent spirit, a child, as he put it, of the ‘Vietnam generation’, already with an early republican instinct: as a schoolboy, he recalled, ‘I once had to sit in the sun for five hours waving my little flag and saw the Queen pass by for literally one minute... I was not terribly impressed’. He studied at Adelaide University (law, with history, English and international relations). The combination defined him, including a life-long interest in literature and words, but he opted for the law: a doctorate at Oxford and study under Professor Ian Brownlie. From the outset, he had an intensely pragmatic approach to the idea of an international rule of law—I am a ‘naïve positivist’, he once said, never himself much attracted to theory, but deeply respectful of others who were. The thesis became a book, on The Creation of States in International Law, today a classic that defines the field and would inform later engagements: Quebec’s secession from Canada; Scottish independence; and the decolonisation of Mauritius, including Chagos, from British colonial rule. Then back to Australia, as an academic: Adelaide, then Sydney. His interests broadened and deepened: he liked to challenge dogma—on the Australian Law Reform Commission he spearheaded the recognition of Aboriginal customary laws in Australia’s legal order. He qualified as a barrister, writing about Australian courts. He published the Rights of Peoples under international law, an early foray into matters of self-determination. You get the gist: rule or domination by others was a leitmotif of his intellectual style and product. In 1992, he returned to Britain as the Whewell Professor of International Law, and a fellowship at Jesus College Cambridge, a place he called home. A generation of international lawyers came to appreciate a mind that was sharp, witty, open, direct, engaged. He served as director of the Lauterpacht Centre for International Law, chaired the law faculty, and was a highly engaged teacher: his 70 doctoral students is surely a record. His protégés crossed culture, politics and identity, entering academic life across the globe, a lasting legacy for his ideal of international law as an ‘open system’: real, practical and forward","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"201 - 205"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47750900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Expanding durable solutions for refugees: possibilities for developing education pathways in Australia","authors":"R. Evans, S. Baker, Tamara Wood","doi":"10.1080/1323238x.2022.2131506","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2131506","url":null,"abstract":"ABSTRACT As the number of people forced to flee their homes continues to grow each year, traditional legal frameworks for protecting those who move, such as refugee and human rights law, are increasingly under strain. The limited scope of these frameworks, and diminishing political will to implement them, leave countless refugees and other forced migrants with little chance of finding long-term safety and rebuilding their lives. It is increasingly apparent that traditional refugee resettlement programs offered by countries such as Australia are not enough. In this article, we offer a comparative document analysis of the options for developing dedicated higher education migration pathways (education pathways) for refugees as a ‘complement’ to refugee resettlement in Australia. First, we discuss the limited availability of resettlement spaces and higher education opportunities for refugees. Second, we explore complementary ‘education pathways’ as a potential solution to these problems. Third, we critically examine several such pathways already underway in Canada, Mexico and Japan. Lastly, we consider potential models that could be utilised in Australia, and how they would, or could, interact with Australia’s existing humanitarian programs.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"308 - 328"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47170669","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Across the stile: a public health researcher’s reflections on ‘Governance Feminism’","authors":"Josyula K. Lakshmi","doi":"10.1080/1323238x.2022.2109822","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2109822","url":null,"abstract":"","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"448 - 450"},"PeriodicalIF":0.0,"publicationDate":"2022-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48591563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Historic feminist intervention at the International Criminal Court—the appeals hearing in Prosecutor v Dominic Ongwen","authors":"M. O’Brien, I. Rosenthal, R. Grey","doi":"10.1080/1323238X.2022.2076547","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2076547","url":null,"abstract":"ABSTRACT Australian academics formed part of a feminist collective contributing as amici curiae to the appeal stage of International Criminal Court case Prosecutor v Dominic Ongwen. This comment discusses the significance of these amici curiae interventions.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"176 - 182"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41576286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Australia joins the ‘global Magnitsky movement’","authors":"Catherine Parsons","doi":"10.1080/1323238x.2022.2078475","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2078475","url":null,"abstract":"ABSTRACT So-called Magnitsky laws allow states to use the tools available to the domestic system to sanction human rights abusers and corrupt actors that commit their violations abroad. Such tools include visa bans, asset freezes and restrictions on the use of banking systems. Other major Western powers have already enacted Magnitsky laws: in December 2021 Australia followed suit, and thus joined what has been dubbed the ‘global Magnitsky movement’. This commentary considers the relatively short history of Magnitsky laws, including the death of their namesake, Russian tax advisor Sergei Magnitsky. The seeming impunity of those behind his murder triggered a campaign for states to use domestic law to somehow punish perpetrators of egregious human rights violations and serious corruption, where they have not otherwise been held to account. By joining the global Magnitsky movement, Australia falls in line with its allies; depending on how the government elects to use its new sanctions power, this will inevitably come at some diplomatic cost.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"183 - 188"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47932073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A proportionate response is the maximal one? Economic and social rights during the pandemic","authors":"Heli Askola","doi":"10.1080/1323238X.2022.2120346","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2120346","url":null,"abstract":"ABSTRACT This paper analyses how responses to the COVID-19 pandemic have interacted with economic and social rights during the first two years of the pandemic (in 2020 and in 2021) in the Australian state of Victoria. The pandemic has naturally focused attention on health, resulting in much government action to protect public health by preventing COVID-19 infections. However, Victoria’s multiple lockdowns have also imposed heavy socio-economic burdens, which have been unevenly spread, exacerbating the vulnerable positions of already marginalised groups and individuals. In addition, in contrast to what was hoped for by some commentators, the crisis has failed to bring about fundamental change in economic and social policies undermining the enjoyment of economic and social rights. The reasons behind these outcomes can be located, most obviously, in the blunt approach chosen early on that characterised the pandemic response throughout. However, they also resulted from limited consideration of the demands of economic and social rights, including their inherent tensions and inter-relationships, and from lack of attention to existing inequalities.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"118 - 138"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49027179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"David Bilchitz’s ‘Fundamental Rights and the Legal Obligations of Business’","authors":"Selwyn Coles","doi":"10.1080/1323238X.2022.2124503","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2124503","url":null,"abstract":"ABSTRACT It is now widely acknowledged that corporations significantly impact the fundamental rights of individuals; and so they should carry (negative, and possibly also positive) obligations with respect to those fundamental rights. Yet the literature has largely neglected the critical follow-up question: how do we determine the content of those obligations in particular situations? Bilchitz takes up that challenge in his magisterial new work, Fundamental Rights and the Legal Obligations of Business, which is the subject of this review essay. His key contribution is providing a structured process of reasoning to guide decision-makers in concrete contexts. This reasoning process involves the identification of various normative factors to guide the determination of corporate obligations which then must be balanced according to two structured tests for positive and negative obligations respectively. This paper summarises Bilchitz’s core arguments in some detail, attempts to distil the ‘heart’ of his strategic project, and then concludes by raising several critical points for discussion.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"163 - 175"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46909160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Toward constructive harmonisation of Islamic family law and CEDAW: a study on the UAE’s reservation to CEDAW Article 16 and equal rights to marriage and family relations","authors":"Z. Jaffal, Faisal Shawabkeh, Ali Hadi Al Obeidi","doi":"10.1080/1323238X.2022.2122689","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2122689","url":null,"abstract":"ABSTRACT The purpose of this study is to provide an evaluation of the United Arab Emirates’ (UAE) reservations to the Convention on the Elimination of All Forms of Discrimination against Women’s (CEDAW) Article 16 through the frame of constructive harmonisation between Islamic family law and CEDAW. It has been divided into two sections: firstly, women’s rights in Islamic family law, and secondly, the UAE’s reservation to CEDAW Article 16 and equal rights to marriage and family relations. The study concluded that gender equality under CEDAW and the complementarity principle of Shari’ah are two different concepts, since complementarity includes gender differences, but equality does not. According to the study, both concepts can be helpful in identifying areas of harmonisation since most Arab countries, including UAE, have enacted or amended laws that interpret Shari’ah in a way that is compatible with Human rights treaties, including CEDAW. As a result, the UAE may not be able to maintain most of its CEDAW reservations, including Article 16.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"139 - 162"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47432112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Becoming an internally displaced person in Australia: state border closures during the COVID-19 pandemic and the role of international law on internal displacement","authors":"Kate Ogg, O. Simić","doi":"10.1080/1323238x.2022.2094538","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2094538","url":null,"abstract":"ABSTRACT In response to COVID-19, Australian state and territories have, at various times, restricted entry to returning residents. Consequently, many people have been unable to return to their homes, some for significant periods. While there have been discussions of the human rights implications of COVID-19 international travel bans and lockdowns, there has been little consideration of the application of international human rights law to those stranded by internal border closures. In this paper, we contend that these ‘stranded’ people are internally displaced persons (‘IDPs’) within the meaning of international law and examine how international law on internal displacement can inform domestic human rights law and processes. In doing so, this paper contributes to scarce scholarship on IDPs in higher-income nation-states and internal displacement associated with pandemics. We argue that while internal border closures were implemented to reduce the spread of COVID-19, the nature of the restrictions and the manner in which they were implemented were a disproportionate interference with rights to freedom of movement, family unity, education, healthcare and culture. Our analysis has lessons for responses to disaster displacement (a phenomenon likely to increase with acceleration of climate change), future pandemics and central themes in international scholarship on IDP protection.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"95 - 117"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42548830","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}