In February 2017 the Sydney Environment Institute and the Balanced Enterprise Research Network at the University of Sydney convened a workshop featuring the distinguished climate scientist Professor Michael Mann from Penn State University. Mann is well known both for his world-leading climate research and also for his highly effective advocacy on the frontline of climate politics in the US. He has been the lightning rod for attacks from those who oppose any policies to address the climate crisis but has stood his ground and become one of the most important global voices on this vital issue.
Image credit: Parliament of Australia
The Joint Standing Committee on Treaties is currently inquiring into Australia's proposed ratification of the Paris Agreement on Climate Change. On 27 September 2016 I gave evidence to a hearing of JSCOT. What follows is my opening statement to the Committee. My written submission to JSCOT can be found here, and the full transcript of the oral evidence is in Hansard
Twenty-five years ago today Australia signed the Madrid Protocol which banned mining in Antarctica and set aside the icy continent as a natural reserve, devoted to peace and science. Amid the gloom about the future as global warming grips the planet, the historic achievement in 1991 shows what is possible when Australia pulls out all diplomatic stops to advance the global environmental good.
Today we take the idea of Antarctic wilderness for granted, forgetting just how close we came to opening the fragile continent to the mining industry. In 1988, as Crowded House topped the charts, diplomats gathered in Wellington to sign a treaty to enable mining in Antarctica.
There was to be an historic turn of events after Bob Hawke saw Australia's proposed ratification of the mining treaty on the agenda for a cabinet meeting in May 1989.
As Hawke told Fairfax Media's Nick O'Malley recently, "I just couldn't believe it. Here was the last pristine continent. We were going to be called upon to ratify it and I thought, 'No bloody way.'" The treasurer,Paul Keating was also set against the mining treaty and argued that Antarctica should be a "world park".
Over the objections of sceptical voices in cabinet, Hawke and his then environment advisor Craig Emerson set to work to convince the world to dump the mining treaty in favour of a new agreement that would protect Antarctica forever. Hawke had an influential international ally, the late French prime minister Michel Rocard, and they eventually cajoled and convinced other leaders that Antarctica needed protection not prospectors.
Hawke's diplomatic coup is a reminder of the potency of Australian environmental diplomacy, and the place that Australia once held as a global environmental leader. On climate change, a force that will occasion more damage to Antarctica than mining ever could, Australia is a now a laggard not a leader. With weak emissions targets, and having abolished the carbon price necessary to deliver them, Australia is now seen by some as the "Saudi Arabia" of the South.
The Abbott and Turnbull governments' insouciance to global environmental challenges could not come at a worse time. We are now in the "anthropocene", a new geological era in which humanity is the dominant force of global environmental transformation. This new period calls for renewed environmental leadership from Australia. Given Australia's historic role in Antarctica, it is a natural place to redouble these efforts.
In two weeks, international delegates will descend on Hobart to consider proposals to protect the ocean around Antarctica from fishing and climate change. Researchers are calling for greater protection of Antarctica's seas not only because they are inherently valuable, but also because of the vital role they play in the earth system. Just last month, a team of scientists discovered that Antarctic krill plays a central role in the global oceans' capacity for carbon capture. As CO2 levels rise, this research is critical.
Antarctica shows how modern conservation not only needs protected areas but also effective strategies to safeguard them from outside impacts. Fortress conservation is no solution when external pressures are eroding the fortress walls. We are seeing this with the Great Barrier Reef which has experienced devastating bleaching as water temperatures rise. Much the same holds true in Antarctica, as the ice sheets melt and as ocean acidification caused by our CO₂ emissions affects the plankton at the basis of the Antarctic food chain.
Australia rightly sees itself as a leader in Antarctica. Australia lays claim to the largest slice of the continent, and has been a strong voice for protecting the Antarctic environment. Indeed, Australia is behind a proposal for new marine protected areas in East Antarctica. But Australia's voice is often confined to the rarefied rooms and corridors of Antarctic treaty meetings.
Negotiations to protect Antarctic waters have come to a stalemate, with Russia blocking progress. It's time Australia took Antarctic issues globally again, and shook things up in the same way Bob Hawke did so successfully in the 1980s. The truth is that there is no other way to save the last wilderness on earth.
Tim Stephens is a Professor of International Law and a specialist on Antarctica from the Sydney Law School. This article originally appeared in the Sydney Morning Herald on 4 October 2016.
Before we begin the proceedings, I acknowledge and pay respect to the traditional owners of the land on which we meet, the Gadigal people of the Eora Nation. It is upon their ancestral lands that we gather today.
It is an honour to be asked to launch the SULS 2016 Education Guide. I’m not sure when SULS first began to publish the Education Guide, but it wasn’t something we printed when I was President of SULS, almost 20 years ago. At that time there were few resources prepared by Sydney law students for Sydney law students. SULS publications were fairly limited. We published Headnotes, a very short guide for new students, a weekly (or mostly weekly) newsletter called Hearsay containing scandalous gossip about staff and students and sometimes serious items (like our coverage of the demise of the bell curve), an academic journal, Polemic, that was always years behind schedule (until Ben Saul took it over from Julian Morrow), and Blackacre, the yearbook for the graduating class.
The Law School wasn’t much help either. Course information was very limited, just a paragraph or so in the handbook. And so students were expected to muddle through as best they could. The best resource for finding out how good Ross Anderson was, whether the subject Cricket and the Law was interesting (yes that was a real unit of study), or whether Family Law was too hard, was to hang around the cafeteria on Level 5 of the Old Law School in Philip Street and chat to other students. Remember at this time the internet was only in its infancy (it had just been invented by Al Gore or Malcolm Turnbull – I can never remember who devised it first), and obviously well before social media. Taste Café this most certainly wasn’t, but Level 5 with its bain-maries, ping pong and pool tables did mean that there were plenty of opportunities to share thoughts about the merits and otherwise of the legal education we were getting.
We are in a different world today, but it is striking how valuable a comprehensive, well written, well structured and elegantly designed student publication can still be. The 2016 SULS Education Guide is all of these things. Running to an impressive 100 pages, the Education Guide does four, important, things.
First, it includes a helpful guide on how to get the most out of lectures, seminars and tutorials, how to make notes, sit exams and write assignments. All of this is very useful. Strangely omitted from the advice is to make friends with a prospective University medallist and get hold of her or his notes, or better still go out with them (and even eventually marry them, as I had the good fortune to do). I note that Bill Clinton was giving similar advice at the Democratic National Convention in Philadelphia last week when explaining, a little creepily it must be said, how he met Hillary in the Yale Law School Library in 1971.
The second thing that the Education Guide does is to provide a ‘warts and all’ guide to compulsory and elective units. For compulsory units (I believe included in the Education Guide for the first time this year) it is a survival guide for what just has to be endured. For the electives it is a shopping catalogue, so students can forum shop for Private International Law or learn about consumer rights in Competition Law. We all know that unit descriptions tell only a small part of the story of what a subject might contain, how the assessment will work, and how it will be taught. The Education Guide lifts the veil, and not just in Corporations Law, and provides insights from students as to what the unit covers and the best way to approach the subject. There are comments on whether the set texts are helpful, tips on how to do well, and how well the unit has been taught in the past.
On this it is clear that the Editors have taken David Rolph’s Media Law: Defamation and Privacy unit, as the guide refrains from saying anything remotely libellous about me or my colleagues. Where there is criticism it is fair and constructive. This is valuable, and keeps us on our toes. Should the Sydney Law School follow the University of Idaho and introduce Pokemon Go into its curriculum we can rightly expect to be taken to task by students. Or perhaps, as is more likely, we can expect praise for innovative legal pedagogy.
Third, the Education Guide provides information on the off-shore study opportunities that are available through exchanges and units overseas, and how study at the Sydney Law school can be enriched through internships, volunteering and by participation in mooting and other competitions.
Fourth, and finally, the Education Guide looks to the future, to the opportunities for further study at the Sydney Law School and beyond, in the UK, North America and elsewhere. These opportunities are simply astonishing, and it is amazing where a law degree from Sydney can take you. But it can only do so if you are in the know about how to apply, when to apply, how to obtain scholarships and so. It used to be said that the main challenge for obtaining a place at Cambridge was correctly completing the application form that seemed to go on for ever, and to be honest I don’t think much has changed.
So in closing, I extend my congratulations to the Editors for compiling such a helpful and attractive publication. To Emily Shen, Editor in Chief, Meena Mariadassou, SULS VP, the editorial board, the designers Jennifer Jiang and Kieran Hoyle, and of course the sponsor Clayton Utz, well done on producing this fabulous publication.
And finally, and with great pleasure, I formally launch the Education Guide, and I commend it to you.
Last week I attended the first joint conference of the Asian Society of International Law and Australian and New Zealand Society of International Law, held at the Faculty of Law at the University of New South Wales. I was asked, along with Professor Zhu Wenqi of Renmin University of China Law School, to offer some reflections on the proceedings over the two day conference:
It is a great honour to be asked to offer some concluding reflections on this lively and interesting conference on international law and justice, although, I must say, that it seems manifestly unjust to ask Professor Zhu and myself to sum up two days of rich discussion in just a few minutes, with the words uttered in the final panels still ringing in our ears, and a lovely Friday afternoon in Sydney calling us outside. So I hope you will forgive me if my summation can deliver no more than summary justice to the ideas and arguments advanced in the many stimulating presentations that we have heard. The formidable challenge in drawing together in any meaningful way the many strands explored in this conference is trumped only by the metaphysical impossibility of being present at the many parallel sessions. Perhaps this was why we were given yellow conference bags at registration emblazoned with the imperative ‘Never to Stand Still’. Being able to attend only five from among 16 diverse panels with many distinguished speakers, what is the just thing to do? In the original position, behind a veil of ignorance which panels should be preferred? I settled for the opportunity for self-improvement, avoiding topics with which I have passing familiarity, and instead attending panels addressing topics about which I know much less, including those on international criminal law and justice, international financial and economic law, regionalism and diversity, international law in a rising Asia, and international law and security.
As Professor Mani noted in his remarks at the opening of the conference, the enduring tension between international law and justice provides a ‘sumptuous feast’ for discussion, and this conference has certainly not failed to fulfil. From this feast I can offer only a degustation of the recurring themes, at least as I saw them, across the varied panels I attended. The three themes I would like to focus upon are first the tension between procedural and substantive justice, second, the tensions between cosmopolitan justice and Asian or other particularised notions of justice, and third, the tension between justice and peace.
Turning first to substantive vs. procedural justice. International law is much better at attending to procedural justice than resolving hard questions of substantive justice. Most notably, international law is not oriented in any comprehensive way towards providing present and future generations with a fair share of the planet’s natural resources and ecosystem services. As Professor Gerry Simpson suggested in his remarks, the process of doing justice has spawned a hyperinstitutionalism in response to virtually every crisis and international disorder. This has resulted in an indescribably complex morass of procedures, that have become an end in themselves rather than a means to the end of realising substantive goals of justice
should be. The dilemmas of pursuing substantive justice through procedures of justice were thrown into stark relief by Susan Lamb in her account this morning of the challenges faced by the Cambodian Extraordinary Chambers. The Global Administrative Law project is one influential manifestation of the fascination with procedural justice, designed to bring transparency, participation, reasoned decision, legality and review to global governance – in short to instil liberal notions of procedural fairness. But as B S Chimni has noted, the GAL project depoliticises an essentially Western process, as institutions of international criminal law and collective security are co-opted at the expense of the South.
A focus on an apparently procedurally neutral justice can obscure substantive injustice. The was evident in Panel 2, the first of the conference’s four sessions on international and transnational criminal law and justice. Firew Kabede Tiba ably traced the imperial march of international criminal justice and procedure into Africa, beginning with an evocative quotation from Desmond Tutu as to how it is ‘we decide that Robert Mugabe should go the International Criminal Court, Tony Blair should join the international speakers' circuit, bin Laden should be assassinated’. Professor Zhu Wenqi continued the discussion of international criminal law, reminding us of China’s significant participation in the Tokyo Trials, and offering an assessment the prospects of China joining the International Criminal Court. Professor Zhu
challenged the assumption that non-ratification of the ICC is to be equated to hostility, and argued that China could be a friend of the Court, as seen in China’s non-exercise of its veto in UNSC Resolution 1973, which referred the Libyan situation to the Court. Although, as Andrew Garwood-Gowers told us this afternoon, China's non obstructionism on Resolution 1373 was less a beneficent gesture than a result of a unique confluence of political factors. Speaking on the experience of the International Criminal Tribunal for the Former Yugoslavia, Ambassador Arnaut highlighted the comfort the process has brought to the victims of atrocity, notwithstanding the many imperfections of the Tribunal. Finally Lorraine Finlay examined what to many appears a clear case of victor’s justice, the trial and execution of Saddam Hussein and others by the Iraqi High Tribunal. Concluding that it was more than the face of United States justice with an Iraqi mask, Lorraine exhorted perseverance in the project of international criminal justice, noting that the perfect should not be the enemy of the good, to which Gerry Simpson responded in the questions, whether we have actually lowered our expectations of international criminal justice too far, and pointing out that the greater enemy of the perfect is the worst, not the best.
Panel 6, which examined international financial, economic and investment law also revealed aspects of the procedure/substance distinction. Professor Chi Manjiao examined the delicate negotiation underway in China’s utilisation of the WTO’s dispute settlement procedure; identifying the law of unintended consequences, what he termed spill over effects from major trade cases, that could challenge the social,
cultural and political status quo in China, by for instance, undermining its censorship system. He Ling Ling and Razeen Sappideen discussed another dispute settlement procedure, arbitration under investment treaties, and the Australian government’s recent decision to drop investor-state dispute resolution procedures from future agreements. This for me promoted once again the question whether it is always the
case that more procedure means more justice, particularly when we reflect on the strategic way in which investor state arbitration has been used to attack government policies on environmental protection or human health, as shown most clearly by the Phillip Morris case against the Australian government in respect of its cigarette packaging laws.
The substance/procedure distinction can be seen more broadly as one aspect of the distinction between justice and law, between an instrumental vision, and a formal, proceduralised conception of law. In her plenary address, Shirley Scott spoke of the minimal conditions of cosmopolitan justice embedded in the Vienna Convention on the Law of Treaties, which renders void by Article 52 any treaty the conclusion of
which is procured by the threat or use of force, but which leaves standing a manifestly unjust treaty, so long it was entered into freely. This is a reaffirmation of justice as procedural justice, stripped of a broader conception. In his address in the plenary session Professor Tony Anghie explored this dynamic from an historical perspective, charting the original congruence of law and justice in the natural law tradition, that was overthrown by the emergence of the sovereign state, and with Austinian positivism ushering in a new the polarity between morality and international law. Gone are the certainties with which Christopher Columbus could claim the Americas in the name of law and justice, and this is a good thing. But Professor Anghie spoke, provocatively, of a new naturalism in which the quest for economic development has become the new theology binding developing and developed states alike, conditioning governmental legitimacy, and even sovereignty itself, upon economic growth. In his presentation in Panel 6 on international financial and economic law, Ross Buckley unmasked another aspect of this new naturalism,
the tremendous expansion of the global financial system which has taken place largely outside of law, or at least beyond the purview of law to control. He made a forceful case for a form of the Tobin tax, a minute impost on an indescribably large body of financial transactions, which could raise half a trillion dollars and could go to redistributive ends, including climate adaptation.
If I might continue for a moment on the procedure/substance divide, 2012 has been a major year for restatement but also rebalancing of formalism and instrumentalism within the ICJ. In the Jurisdictional Immunities of the State Case, decided in February, the Court concluded that the procedural guarantee of foreign state immunity in domestic courts could not be overturned, and indeed was not in reality in conflict with, the peremptory prohibition of serious international crimes. As the Court said, ‘[t]he rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon….whether or not the
conduct in respect of which the proceedings are brought was lawful or unlawful.’ Yet in a decision a few months later a far more cosmopolitan and substantive vision of justice was embraced by the Court in Questions Relating to the Obligation to Prosecute or Extradite, in which it found, clearly for the first time, that any state party to a convention establishing obligations erga omnes partes, in this case the Convention Against Torture, could invoke the breach of that convention in order to advance its higher common purpose, in the case of the Torture Convention being the prevention of torture, and the prosecution of is authors. Just how radical this change is, in aligning procedure to the aims of substantive justice, is seen in Judge Xue's dissenting judgment in which she argues for the status quo in Article 42 and not Article 48 of the ILC's Articles on State Responsibility.
Turning now to universal or cosmopolitan justice vs. regional and other particularised visions of justice. This was a theme explored in many presentations throughout the conference, which is of course to be expected in a conference involving the Asian Society of International Law occurring at the dawn of the Asian Century in which approaches to international law in this region will receive ongoing attention. Her Excellency Judge Xue noted that while justice is a basic tenet of all legal systems, its manifestation in particular social contexts renders it in some ways an indeterminate concept. Judge Xue spoke of distinctive Asian Pacific approaches to justice, emphasising in particular distributive justice. And Professor Anghie, answering a question from Professor Chesterman observed that in this respect sovereignty itself can be a mechanism of justice, allows for diversity by providing for states to pursue self-determined visions of justice particular to their community. This is the positive vision of sovereignty as a barrier against intrusive interference, and I know was the subject of several presentations in other sessions, including this afternoon which explored the various possible meanings ascribable to the Responsibility to Protect doctrine. In Panel 9 on regionalism and diversity in theory and practice we were treated to a very lively discussion on Eurocentrism in international law by two Japanese scholars, Professor Onuma Yasuaki and
Professor Toyoda Tetsuya, which resulted in an accommodation of sorts being reached on the limits of the Eurocentric critique of international law. But it struck me this morning in the discussions of international law that in the Asian century, as Sarah McCosker held up the latest issue of Foreign Affairs with the heading screaming Europe Kaput!, that we may soon need to think about Asian centrism in international law. Catherine Renshaw explored the role of regional institutions in pursuing justice, explaining the combination of principled and pragmatic reasons that have been raised for devolving global power to regional scales to achieve justice. Taking us across a variety of regions, and historically from Churchill’s
proposal at Dumbarton Oaks for regional councils to be tasked with peacekeeping duties, she spoke of the role that regional organisations can sometimes, but not always, play in contributing useful pieces to the puzzle of piece.
Turning finally to the third theme that has been particularly prominent throughout the conference, that is to the tension between justice and peace. Judge Xue spoke of the value of peace and stability as a precondition for the attainment of justice, noting that the quest for peace cannot be dismissed as a secondary consideration, it is the primary value. Gerry Simpson’s presentation spoke of the delegations at the Peace of Westphalia knowing they were against justice, but which gave rise to the system of sovereignty that, coupled much latest with the prohibitions on force and intervention in the 20th century, provided some protection against injustice. The UN Charter balances, as Judge Xue noted, several values that are sometimes in opposition – peace, security, justice, human rights and development. But above all it privileges peace over justice, on the premise that it is better to have an unjust peace than a never-ending conflict waged under the banners of just war. It is a Faustian bargain, trading the soul to preserve the body. But the Charter compromise reached in the aftermath of the Holocaust does not, cannot do, away with justice altogether, as its absence produces the conditions for conflict and conflagration. And so, as
Robert Cooper argues in his book The Breaking of Nations, justice in the Charter ‘originates not in the desire of the weak for protection, but in the tragic experience of the strong’. In my view, the contemporary policy arena raising the most acute dilemma in balancing justice and peace is protecting our life support system, the biosphere. Paul Govind examined environmental challenges and environmental justice, pointing to the elements of justice in the climate change regime, but despite the lofty references in the UN Framework Convention for Climate Change to justice, I think, unfortunately, that justice may be dead, as new emitters like China overtake the historical ones, and the urgency of the need for a response hits home. Can or will states persevere with the niceties of justice when the very material conditions for survival are under threat?
So to conclude by asking the question posed in the call of papers for this conference – can international law really be an instrument of justice? In his remarks yesterday Professor Andrew Byrne invoked Oscar Schachter’s familiar image of the invisible college of international lawyers, all united, at least to some degree, by common assumptions, including the imperative of global justice. The appeal of turning to justice in testing the legitimacy of institutions of global governance is that it offers an ethically principled basis for the distribution of benefits and burdens, and one that it well-suited to expression in legal form. Although she didn’t ask for a show of hands among us, Shirley Scott in the first plenary suggested that there were factions in this invisible college, between the visionaries in the room measuring international law against the ruler of some ideal of justice, the practitioners amongst us engaged in the active pursuit of justice for our clients, and the government lawyers at the political coalface, having to reach an accommodation between justice and power. For me the chief value of this very first joint conference of the Asian, Australian and New Zealand societies of international lawyers such as this, is not in producing a strong shared vision of justice. Which is surely impossible, even if it were desirable. There is no point for a quest, with apologies to Superman, for ‘truth justice and the Asian way’. But the dialogue we have engaged in can produce a shared commitment to asking touch questions about whether the work we do as members of an invisible college of international lawyers in Asia in the Asian century makes some small contribution to the achievement of justice. It was striking to hear that Sarah McCosker and Damien van der Toorn, two of Australia's leading international lawyers in government, are embarked on just such a project of self reflection. I will conclude by reiterating a point Judge Xue made in the opening plenary session: justice is best seen ‘not as an event but as a process, directed to the attainment of human dignity’ and this surely remains so if even in our best moments as a species that goal always remains over the horizon and just out of reach.
About the Blog
- Climate Politics in the Trumpocene – Where to Now?
- Paris Agreement on Climate Change - Evidence to Joint Standing Committee on Treaties
- Time to protect Antarctica again
- Launch of the 2016 SULS Education Guide
- Joint ANZSIL and Asian Society of International Law Conference
- A Whale of a Story
- The Future of International Environmental Law
- Setting the Earth's Thermostat
- The Regulation of Southern Ocean Whaling: What Role for the Antarctic Treaty System?
- Whales Soap Box