On Wednesday 5 November 2014, students from the Deakin Law School commenced their preparations for the 2014 / 2015 Willem C. Vis International Commercial Arbitration Moot in Vienna, and its sister competition - the Vis (East) Moot in Hong Kong. Deakin Law School has a distinguished history in the event - taking part each year, in both Vienna and Hong Kong, that it has run. This year's event, however, has personal significance as well - marking a decade of my own involvement, in various forms. Having taken part as a student, judged practice rounds for the Deakin Law School for two years, and now coaching my seventh season - what might one say, on reflection, about 10 years with the Vis Moot?
The recent killing of 21-year-old Melbourne University student Joshua Hardy is another tragic story of unprovoked, alcohol-fuelled male violence in our community. It is an issue that has animated significant debate in politics and the media in recent years and has motivated the introduction of a range of criminal justice and licensing reforms nationally.
In the wake of Hardy’s death, questions have again arisen about what the victim could have done to prevent the use of lethal violence. For example:
Shadow immigration spokesman Richard Marles' thought bubble on the success of the Federal Government's "turn back the boats" policy on Sunday has raised the prospect of bipartisan unity on a policy that has angered Australia's large near neighbour, Indonesia.
The appointment of a career diplomat, Retno Marsudi, as Indonesia's new foreign minister is only likely to formalise Indonesia's opposition to Australia's controversial asylum seeker policy.
Indonesia's previous foreign minister, Marty Natalegawa, was blunt in his criticism of Australia's policy of turning back asylum seekers attempting to leave Indonesia for Australian waters. He was especially forthright about the issue when it included Australian ships entering Indonesian territorial waters.
Timor-Leste’s prime minister, Xanana Gusmão, has deferred his decision to step down as his country’s leader until April 2015. He had announced earlier this year that he intended to leave office firstly in September, then in October. He has since said that he wishes to stay on to oversee negotiations with Australia over a resolution to the Timor Sea dispute.
If one was to believe the reporting on Hong Kong’s pro-democracy demonstrations, especially the reporting in Hong Kong, one could be mistaken for believing that it was all but over. Nothing, however, could be further from the truth.
There is no doubt that the numbers in Hong Kong Central have diminished, especially during the day, but they continue to bounce back at night, when ordinary Hong Kongers have finished their day’s work or study. So, too, at the Mongkok protest site in central Kowloon.
At both sites, traffic continues to be blocked and the barricades erected from street furniture over a week ago remain entirely intact. The few police roaming around appear to have no interest in taking down the barricades, even though the protesters are hundreds of metres away.
There was some hope that talks scheduled for Friday would make some headway towards resolving the protests. But no-one on either side believes there could be any meaningful movement on the protesters’ central demand to freely nominate and elect their chief executive in 2017.
Despite believing they were promised such an outcome in 2012, more recently the residents of Hong Kong were told they could vote only for a candidate that had been vetted by a pro-Beijing committee.
There is a view, too, that most Hong Kongers, as they call themselves, are sick of the disruption to their daily lives. Shopkeepers are reported to be complaining about loss of business.
Yet little business is disrupted and what is more evident is the goods that have been freely given by businesses all over Hong Kong to support the protesters. There have been donations of crates of water and other drinks, free food, tarpaulins and even tents and other forms of shelter, along with first aid supplies stockpiled at emergency care centres for those protesters who were tear-gassed or attacked by thugs believed to be paid for by interests close to the governor.
What is clear is that, rather than the pro-democracy protests just fading away, they have polarised Hong Kong society. There are very few Hong Kongers who now do not have a strong opinion on the issue.
Broadly speaking, the city’s business elites tend to be pro-status quo, with the working class. tending to be more divided. Hong Kong’s large and influential middle class, however, appears to be strongly pro-democratic. Unofficial but reliable surveys undertaken by a respectable institution (which cannot be named in what is a subtle climate of retribution) says that between 60 and 70 per cent of Hong Kong’s resident are in favour of having a freely nominated and elected chief executive.
Against these pro-democratic tendencies is not just Hong Kong’s business elite but, of course, the government of China. No matter the extent to which Hong Kongers like to think of themselves as a people and a place apart, they are Chinese and Hong Kong is a part of China.
The Chinese government believes it cannot afford to allow Hong Kong’s pro-democracy protest to be successful. Should it be so, it will show the rest of China that peaceful street protests can produce political change.
China may have moved on from the bad old days of the Tiananmen Square massacre, or it may not – that is yet to be seen. But the Chinese Communist Party has no intention of relinquishing its very considerable grip on the machinery of the state, and the considerable economic opportunities that come with such control.
Yet the regime in Beijing must tread carefully in Hong Kong, given it is China’s largest source of investment funds and, equally, China is now a major investor in Hong Kong.
Should Hong Kong become unstable and its economy dive, that would be financially disastrous for all involved. And in the end, with China having given up any pretence to being ‘communist’ and Hong Kong being one of the world’s most mercantile cities, money appears to be what is most important.
Yet Hong Kong’s students and others at the protest sites object to being locked in what they consider to be a gilded cage. Rather than damaging business, they believe greater representation and accountability will enhance business. And, more importantly, they increasingly see having a representative and accountable political leader as being a good in its own right.
There is a strong chance that Hong Kong’s public pro-democracy movement will wind down. But it is at least as likely that it will also revive. There is now a common expectation that pro-democracy protests will now come in waves, larger and more frequent as the city moves towards the 2017 elections.
A compromise is possible, saving political face for both sides. But such a compromise will be difficult to achieve.
The alternative is that, the closer the 2017 election comes, the higher the stakes will be for the people of Hong Kong. The stakes, too, will be increasingly – perhaps precariously - high for the government in Beijing.
In the recent case of Tajjour v New South Wales  HCA 35, the High Court was asked to consider whether New South Wales laws prohibiting ‘consorting’ with convicted offenders infringe the right to freedom of association, protected by an inferred right in the Australian Constitution or by the application of the International Covenant on Civil and Political Rights (ICCPR).
The stream that leads into the San Sebastian River in the poor and tiny Central American country of El Salvador runs bright yellow, not for the gold in the mine nearby but for the chemical byproducts which leach into the water. That stream is emblematic in a fight between an Australian mining company and the El Salvador government, over whether there should be gold mining in the country.
If El Salvador wins this fight, it will preserve a bipartisan policy on mining, a country’s right to make policy generally, and to protect its main water supply in particular.
If it loses, then a foreign mining company will be able to ride roughshod over the country’s democratic process and prosecute a financial claim that could send its government broke.
Set among dense green foliage and steep hills, the San Sebastian River, La Union department in eastern El Salvador runs a light orange color, depending on the extent of rainfall. It has variously also flowed anything from a pale yellow to a deep orange. The San Sebastian is a ‘dead’ river, in that no life exists within it, and its water is poisonous to drink. The unnatural color of the San Sebastian River is a consequence of ‘acid mine drainage’, which conventionally includes sulfuric acid, arsenic and iron oxide (often referred to as ‘yellow boy’), along with other possible poisonous trace elements. The acid mine drainage to the San Sebastian River derives from a stream the starts among the steep slopes above the village of San Sebastian, adjacent to a formally abandoned gold mine. A visit to the mine site clearly showed where the surface run-off from the mine site occurred, although acid mine drainage also occurs underground and leaches out of the soil along the hillside into the stream.
According to El Salvador’s Ministry of Environment and Natural Resources, the river carries nine times the maximum permissible level of cyanide, approximately 1,300 times the permissible amount of iron (MARN 2012) and an unknown but certainly toxic level of arsenic.
The stream itself was a bright, almost luminous orange color, feeding directly into the San Sebastian River, which itself flows into the Gorascoran River. This river marks the eastern border between El Salvador and Honduras and then flows into the Gulf of Fonseca, also shared by Nicaragua, where it poisons the local fish stocks. Not only is the water from the San Sebastian poisonous, the community of San Sebastian says that it suffers a very high level of quite specific illnesses usually associated with arsenic and metals poisoning (see Zarraga 2014:41 for detailed account of the numerous chronic illnesses associated with arsenic poisoning, also Ventura 2011), and is required to truck in drinking water. For an impoverished community, this represents a great, almost unbearable, expense.
Not only does acid mine drainage seep from the mine above the village but, sitting abandoned in unsecured and deteriorating shipping containers, are approximately 23 barrels containing both sodium cyanide and iron sulfate, also used in gold mining. There is believed to be enough cyanide in the containers to kill approximately a half a million people.
In a country in which there has been little gold mining, the San Sebastian mine and its consequences stand as a stark illustration of what can happen when there is a confluence of a highly toxic industry, a vulnerable topography, high population density and generalized water shortage. It is, in short, a human and ecological disaster, which retains the potential to become very much worse.
A case in point of a possible new and much larger project is the El Dorado gold mining project in Cabañas district, which was initiated by Pacific Rim and upon takeover was assumed by the Australian-headquartered company OceanaGold. As a consequence, there has developed a popular movement against further gold mining – indeed all mining – in El Salvador, now supported by the government, which has by refusing to grant new permits declared a moratorium on the granting of mining permits. The government of El Salvador has to the time of writing refused to issue a permit for the mine to commence exploitation, based on strongly held environmental concerns and the fact that the predecessor company, Pacific Rim, failed to complete the necessary environmental and feasibility studies required by law. These concerns focus in particular on the pollution of both regional water supplies and, via its watershed, the main (64 per cent) water supply for El Salvador of the Lempa River. This moratorium is now confronted by an international mining industry that wishes to pursue mining in the country, regardless of local opposition, and which has taken the country to international legal arbitration in an attempt to force the issue. This paper examines some of the issues that have led to this dispute.