The Chair of the Canberra Panel, Professor Don Rothwell, and I have now co-authored a short piece for a new US journal - the Michigan State University Public Policy Journal - which explores several of the themes considered in the report of the Canberra Panel.

Abstract

In 2009, the 1959 Antarctic Treaty celebrates its fiftieth anniversary. Over its fifty-year existence the Treaty and the Antarctic Treaty System (ATS) built upon it, have promoted freedom of scientific research in Antarctica and the Southern Ocean. Despite the many successes of the Antarctic legal regime, there has been growing disquiet over the conduct by Japan, an Antarctic Treaty party, of its ‘special permit’ whaling program in the Southern Ocean. This program now has a lengthy history stretching back to the late 1980s, and has been undertaken purportedly in reliance on the 1946 International Convention on the Regulation of Whaling, which allows whaling for scientific purposes in limited circumstances. It has also been pursued on the assumption that the global whaling regime takes priority over the disciplines imposed by the regionally-focused Antarctic Treaty System which seeks, among other things, to promote scientific research in Antarctica and to protect the Antarctic ecosystem. The article examines the interaction between the Antarctic and whaling regimes and argues that the main environmental text in the ATS, the 1991 Environmental Protocol, imposes obligations upon Japan to minimise or eliminate the environmental risks of its burgeoning Southern Ocean whaling program.

You can find the full text of the article here.

******************************

Whales “Soap Box”
Opening of the New Law School Building
30 April 2009
Dr Tim Stephens
 
I am standing on a soap box to let rip on a subject close to my heart – how the law can save the mightiest and most intelligent non-human animals on Earth – the great whales.
 
Not so very long ago a soapbox like this one would have contained soap made from whale oil – well probably not really like this one because this is a faux soap box used by fashionable ranters in London’s Hyde Park, and was flown in especially for today. But soap is neither the beginning, nor the end of the cornucopia of products found in the floating supermarkets that we call also call whales.
 
Heathcote Williams in his poem Whale Nation reminds us that whales were the plastics of the 18 and 19th centuries. They spawned the consumer society. Obviously they didn’t do this literally – while whales like to sing we have no evidence that they have taken trips down to the Sony store to pick up the latest Karaoke kit complete with plasma screen, blue-tooth Madonna mikes and voice mixers so you can sound like Cher.
 
Rather they spawned our consumer society in providing an endless array of things to make modern life a breeze: fuel, for streetlamps and lighthouses, candles, springs for watches, umbrellas and toys, even the first springs in the first typewriter, glycerol for lipstick, nitro-glycerine for bombs, brushes and brooms, linoleum, sausage-skins, drum-skins, laces, surgical stiches, tennis racket strings, riding crops, chess pieces, buttons, wax crayons, golf bags, engineering coolants, varnishes, parchments, insecticides, paints, skin-creams, stock-cubes, mah-jong counters, iodine, liver-oil, insulin, gelatine for jelly and glue, gussets, bodices and corsets, fish-bait, cattle meal, dog food and cat food, antifreeze, cooking fat, hair treatments, bath salts, pipes, piano keys, ear-rings, brooches and cuff links, cigarette holders, shoe-horns, car-wax, shoe polish and fishing rods.
 
I suppose the range of uses to which whales have been put by past generations, from cosmetics to musical instruments, surgical implements to sports equipment, typewriters to armaments is something of a compliment to these sea creatures, in a perverse kind of way. In the same way I guess that felling a giant redwood or eucalyptus for fine furniture, or bagging a mighty lion for the taxidermist to work his tricks so the dead beast’s head can feature on a living-room wall, is a weird tribute to nature’s grandeur.
 
But if so then our treatment today of the David Jones of the oceans is a profound insult, because we shop only now in the Food Hall for sperm whale sashimi rather than heading upstairs for make-up from minkes, hair treatments from humpbacks, or bodices from blue whales.
 
The minke whale’s gallon sized testicles are dumped into the sea from factory ships rather than finding their way into cosmetics, as is whale offal which is no longer used for drum skins. The best the whaling nations can now do is to carve off some select whale cuts for fancy restaurants in Oslo, Reykjavik and Tokyo.
 
However tastes here are also changing. A few years ago whale burgers featured in some fast-food restaurants in Japan, but were soon dropped when pimply-faced Japanese school kids showed no interest in the salty red meat. So most dead whales today are on ice – thousands upon thousands of tonnes in deep freezers, mainly in Japan. Their only realistic use today for chunks of whale meat is as Esky coolers for your six pack of Asahi Extra Dry. There are, thankfully, no iPhones clad in whale skin, nor any other twenty first century whale bling. Because the reality is we don’t need to use whales any more.  
 
Nor should we as a matter of principle. In 1982 the International Whaling Commission brought in a moratorium on commercial whaling that has stood to this day, even though it is flouted by a few countries who delight in performing endless autopsies on whales, perhaps inspired by crime series such as CSI, Silent Witness and their ilk that have clearly been a boon for very tired and homeless actors who would otherwise be unemployed.
 
It is often said that whaling is no different from killing other large mammals such as cows or pigs – but is this really a fair comparison? Again to quote Heathcote Williams, whales do not work to eat, they play to eat, that make music to entertain and to communicate, in a songful submarine language with manifold dialects, structures, cadences and rhythms. Like us, whales are very special animals.
 
When did you last hear Buttercup have a sing-song with her mates? Sure some cows use bells to accompany their plaintiff mooing across the valley, but it’s just not the same as the ethereal call of the humpback carrying endlessly through the sea. And as for pigs, well we know they are smart, and frankly fed up with being eaten, hence their latest cunning plan to wipe us from the face of the planet.
 
A further difference, surely, is that Buttercup and Babe can be dispatched from this world and on to the dinner plate with some semblance of humanity (or should that be animality?). There is no way to put Moby Dick down without terrible suffering – harpooned whale seldom dies instantly and can take up to an hour to bleed to death, while flailing helplessly against the pull of the whale line.
 
And whereas there is no danger that farm animals will go the way of the Dodo, the same cannot be said for the great whale species, numbers of which remain perilously low, even though commercial whaling came to an end two decades ago. And whales also face new threats at our hands, especially as we pump carbon into the atmosphere which warms and acidifies the oceans.
 
The practical and ethical arguments against whaling are clear and convincing, and international law has given them teeth. But we must ensure that we don’t take our mammalian friends in the seas for granted, nor forget that they were recently on the brink of extinction. [Heckling from Professor Mark Finlay and Associate Professor Luke Nottage - "kill the whales, we need them for scientific research!!"]. I say harpoon the Professors for research, not the whales!

******************************

The world’s oceans are a major carbon sink, absorbing increasing amounts of carbon dioxide from the atmosphere which dissolves forming carbonic acid that disrupts processes of calcification utilised by many marine organisms, most notably corals. Despite the seriousness of this problem it is poorly addressed by existing international regimes. Although falling within not only the climate change regime but also marine environmental protection regimes it is not clearly and effectively embraced by either. This is of particular concern for Australia which has one of the most significant stakes in addressing the problem of ocean acidification (as seen most obviously in the threat the process poses to the Great Barrier Reef). By reference to the negotiating history for the relevant instruments and subsequent state practice, I explained how one of the most significant global environmental problems has so far avoided international regulation. Drawing on scholarship that has examined the challenges associated with regulating other cross-cutting global environmental problems where there exists a ‘regime complex’ of partially-overlapping and non-hierarchical regimes, I also offered some preliminary thoughts in terms of strengthening and harmonising the climate and pollution regimes to address the ocean acidification phenomenon.

The podcast of my talk can be found at: http://law.anu.edu.au/Audio/2009/CIPL09Seminar_TStephens.mp3.

The book is based on my doctorate and seeks to offer a comprehensive examination of international environmental litigation from the very first cases through to the most recent. At the heart of the book lies the question: what benefits, if any, are brought by litigating environmental disputes on the international plane? The answer I give is a mixed one. Some international courts and tribunals (such as the International Tribunal for the Law of the Sea) have been at the vanguard of developments, while others (such as the International Court of Justice) have been towards the back of the caravan. Interestingly it is some adjudicative bodies without an environmental specialisation, such as WTO Panels and the Appellate Body, that have been surprisingly 'activist' when it comes to addressing the great global environmental issues of our time.

More details on the book can be found here and the book is available from various sellers, including Amazon.

We met in November in Canberra to work through the issues, and earlier this week IFAW publicly released our report.

From IFAW's Press Release of 20 January:

An independent group of Antarctic law and policy experts, convened in Canberra by IFAW (International Fund for Animal Welfare), has released a report detailing options available to the Australian Government to challenge Japan’s whaling program through the Antarctic Treaty System (ATS).
“The report creates a new diplomatic and legal front for the Australian Government to challenge Japan’s Southern Ocean whaling program as being inconsistent with the Antarctic legal regime,” Canberra Panel Chair and Australian National University Professor of International Law, Don Rothwell, said.

Under the ATS any activities in the extremely sensitive Antarctic and Southern Ocean are subject to rigorous environmental impact assessments before they are permitted to proceed. Activities include the construction of new scientific bases, tourism, and scientific research.

Despite their whaling program being one of the biggest maritime operations in the Antarctic every year, the Government of Japan has not met this obligation. Currently the whalers operate with sub-Antarctic standard vessels and undertake extremely dangerous operations such as refueling at sea. The environmental risks associated with Antarctic whaling were clearly highlighted in 2007 by the explosion and subsequent fire onboard the whale factory vessel, the Nisshin Maru, which could have resulted in the spillage of chemicals and hundreds of tonnes of fuel oil.

“Antarctica and the Southern Ocean are governed by one of the most comprehensive environmental legal regimes. Why is Japanese whaling exempt from that regime?” Professor Rothwell said.

“Antarctica has been designated as a natural reserve to protect its unique environment for future generations. Japanese whaling is already a stain on this environment,” IFAW Programs Manager Darren Kindleysides said.

“It is inexplicable and inexcusable that Japan’s whalers be allowed to operate without any accountability. IFAW urges the Australian Government to lodge a strong protest at the next Antarctic Treaty Consultative Mechanism meeting in America in April,” Mr Kindleysides said.

The Canberra Panel report endorses previous Legal Opinions, sought by IFAW, that concluded the Australian government can take Japan to the International Court of Justice or the International Tribunal for the Law of the Sea to challenge the legitimacy of Japan’s ‘scientific’ whaling program.

“The Australian Government has been provided with yet another legal and diplomatic avenue for stopping Japan’s illegal, inhumane and unnecessary whaling program. The Government must take responsibility for upholding international laws, fulfill its election promises and stop Japan’s whaling program once and for all” Mr Kindleysides said.

You can also check out a story on the Canberra Panel Report on the ABC's 7.30 Report.

In both the electronic and print media Duffy has repeatedly questioned anthropogenic global warming. Last Saturday in the Sydney Morning Herald he claimed that

For most of the past seven years... temperatures have actually been on a plateau. For the past year, there's been a sharp cooling. These are facts, not opinion: the major sources of these figures, such as the Hadley Centre in Britain, agree on what has happened, and you can check for yourself by going to their websites.

I took up his invitation, and it confirmed that Duffy is pulling our legs. The Hadley Centre data shows that there has been some levelling-off of temperatures, but at a high level. Temperatures have not fallen in absolute terms; they have remained high. The best estimate temperature anomaly for 2008, so far, is +0.296°C which is lower that the record years of 1998, 2005 and 2007, but higher than most years going back several decades (see the data here).

Duffy's claim is akin to saying on a hot day that is slightly cooler than a record hot day before it that this heralds the end of global warming. He has fixed on a trend at an insignificantly short time scale, and neglected to mention that there is no absolute cooling. Quite to the contrary the 2008 records indicate an enduring warming on the back of a succession of broken records. In this light Duffy's opinion piece is highly misleading and disingenuous.

Another authoritative source for temperature observations is NASA's Goddard Institute for Space Studies. The GISS Global Temperature Trends 2007 Summation notes that 2007 tied with 1998 for second warmest in the period of instrumental data, behind 2005 as the record warmest year. The Summation points out that the 2007 warmth was particularly significant because it took place without the heating effect of the El Niño-La Niña cycle and when solar forcing is at a minimum.

This is precisely the wrong thing to do, as you can't press the pause button on climate change. The economic crisis is likely to be relatively short lived, and then global greenhouse gas emissions will resume their upwards trajectory.

The fact that so many people (including the Federal Opposition Leader, Malcolm Turnbull) think that we can postpone mitigation measures suggests that there is a fundamental lack of awareness about the nature and scale of the climate crisis.

In a recent article in Science John D Sterman from MIT examined this disjuncture. He explains that when it comes to policy measures to deal with climate change common sense is not a very good guide:

Wait-and-see works well in simple systems with short lags. We can wait until the teakettle whistles before removing it from the flame because there is little lag between the boil, the whistle, and our response. Similarly, wait-and-see would be a prudent response to climate change if there were short delays in the response of the climate system to intervention. However, there are substantial delays in every link of a long causal chain stretching from the implementation of emissions abatement policies to emissions reductions to changes in atmospheric GHG concentrations to surface warming to changes in ice sheets, sea level, agricultural productivity, extinction rates, and other impacts (4-6). Mitigating the risks therefore requires emissions reductions long before additional harm is evident. Wait-and-see policies implicitly presume the climate is roughly a first-order linear system with a short time constant, rather than a complex dynamical system with long delays, multiple positive feedbacks, and nonlinearities that may cause abrupt, costly, and irreversible regime changes (7, 8).

Sterman and Booth Sweeney gave MIT grad students a survey that explained how climate change worked and then asked them to draw a rough graph showing the emissions reductions necessary to stabilise atmospheric concentrations of carbon dioxide. They found that the vast majority (84%), many of whom were trained in science, got it wrong and thought that by stopping the rise in emissions that this would stop the accumulation of greenhouse gases in the atmosphere.

Using the analogy of the bathtub Sterman says that respondents seemed to think that filling a tub faster than it could be emptied would not lead to it overflowing.

Sterman concludes that we need better public understanding of the basics of climate science. A grand Manhattan project won't solve the crisis, he argues, but rather there will need to be a step change in public attitudes akin to that achieved by the civil rights movement:

The civil rights movement provides a better analogy for the climate challenge. Then, as now, entrenched interests vigorously opposed change. Political leadership and legislation often lagged public opinion and grass-roots action. Success required dramatic changes in people's beliefs and behavior, changes both causing and caused by the courageous actions of those who spoke out, registered voters, and marched in Washington and Selma (18).

Building public support for action on climate change is in many ways more challenging than the struggle for civil rights. Science is not needed to recognize the immorality of racism but is critical in understanding how GHG emissions can harm future generations. The damage caused by segregation was apparent to anyone who looked, but the damage caused by GHG emissions manifests only after long delays.

Around a dozen cases involving environmental issues have been brought to the ICJ since it was established in 1945. The most well known include the Nuclear Test Cases (1974 and 1995), Nauru Case (1993), the Nuclear Weapons Advisory Opinion (1996) and the Danube Dam Case (1997).

Despite the importance of some of these decisions, overall environmental cases have never dominated the ICJ's docket. Indeed the 1993 Chamber for Environmental Disputes established within the Court has never been used, and in 2006 the Court decided to cease the usual practice of holding annual elections for the Chamber’s membership.

Although the Environmental Chamber remains empty of litigants (and judges), the Court in plenary has recently been called upon to decide two significant and controversial environmental cases. In 2006 Argentina commenced proceedings against Uruguay in relation to the construction of paper pulp mills on the River Uruguay. The Court turned down Argentina's request for provisional measures in 2007, in a brief judgment that paid limited regard to the apparent environmental effects of Uruguay's pulp mills. We now await a decision on the merits, which could be the most significant international decision on the protection of freshwater ecosystems since the Danube Dam Case.

And now the ICJ also has Ecuador's case, the first transboundary pollution dispute ever to be brought before the ICJ. It concerns aerial spraying by Colombia of toxic herbicides near the border with Ecuador as part of efforts to control illicit coca and poppy plantations in frontier areas. Ecuador alleges that the spraying is having a range of negative health and environmental effects in its territory, and is also damaging economically important crops and affecting local indigenous peoples.

Ecuador's application to the ICJ is the perfect model of a pleading, as it sticks to the facts and does not stray into an account of the legal basis for Ecuador's complaint. However we can make some educated guesses as to Ecuador's argument as the law is well settled, as a result of the Trail Smelter Arbitration (1938 and 1941) - which is the only other example of an international adjudication of a transboundary pollution case - and subsequent efforts to codify and develop the celebrated dictum from that case:

[N]o state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein when the case is of serious consequence and the injury is established by clear and convincing evidence.

Ecuador's application is interesting for the weight it places on ecological concerns. It is noted that Ecuador is an undisputed global biodiversity hotspot - containing a disproportionate share of the world's biodiversity. Much of Ecuador has been identified as one of 34 global biodiversity hotspots by Conservation International.

Last year the Intergovernmental Panel on Climate Change released its Fourth Assessment Report, the most comprehensive assessment to date of global warming, which confirmed the need for immediate action to be taken to reduce greenhouse gas emissions.

The heat is literally on to find the quickest, easiest and cheapest ways to cut emissions - to pick low-hanging fruit - before we confront the more difficult task of weaning the global economy from its dependence on fossil fuels. The most obvious opportunity to reduce emissions is to halt tropical deforestation, which accounts for 20 per cent of global carbon emissions, around 6 billon tonnes of carbon dioxide annually.

The single largest contributor to emissions from deforestation is Australia's neighbour Indonesia, due in large part to rampant illegal logging and forest fires that destroy two million hectares of tropical forest every year. Deforestation and other land use changes account for around 85 per cent of Indonesia's greenhouse gas emissions and make the country the world's third largest emitter, behind the United States and China.

The world has an obvious incentive to keep carbon safely stored in Indonesia's magnificent forests and peatlands. Indonesia is also acutely aware of the need to address global warming given that its archipelago is highly vulnerable to climate change impacts, especially sea level rises. Protecting Indonesia's forests and wetlands is important for many other reasons too, as it can safeguard the livelihoods of forest dependent communities and preserve countless plant and animal species in this global biodiversity hotspot.

However, tackling deforestation in Indonesia is no easy task and carries economic costs for this developing country. There are intense financial pressures to convert forests and peatlands to palm oil plantations to supply global appetites for cooking oil and, in a terrible irony, developed country demands for climate friendly biofuels.

At the UN Climate Change Conference in Bali last December, negotiators canvassed ways by which the international community could provide incentives to developing countries to reduce deforestation. In a highly significant development, the Bali Action Plan recognised that the reduction of emissions from deforestation in developing countries must be included in the next international climate change framework. This would be a major development, as current Kyoto Protocol rules do not allow the trading of carbon credits for avoided deforestation.

The challenge is now to find the right international formula to help Indonesia and other developing countries protect their forests. Two main options are on the table. The first is a fund-based approach, by which countries would make voluntary financial commitments to finance forest protection. The second is a market-based mechanism, which would allow credits to be generated from protecting forests and then traded on global carbon markets. Whichever approach or combination of approaches is selected there remains a host of complex technical issues to be hammered out. For instance, how can we be sure that a certain forest would have been razed had it not been for the avoided deforestation scheme? Or that by protecting one forest we won't simply encourage illegal loggers to move to another less well protected landscape?

At the Australian Centre for Environmental Law we are researching the challenges being faced within Indonesia in taking advantage of an international avoided deforestation scheme. It is clear that there will need to be a comprehensive regime of laws, regulations, guidelines and policies for sustainable forest management and accreditation. And these will need to be backed up by effective and transparent structures of administration and governance which can stamp out corruption and cronyism. Above all the legal and institutional arrangements must ensure that international payments for avoided deforestation are distributed equitably, and reach and reward those who are responsible for protecting forests and peatlands.

Judging by the many pilot projects proposed or underway, Indonesia is becoming a critical real-life laboratory for testing the effectiveness of avoided deforestation schemes in reducing carbon emissions. It is critical that these experiments deliver real results, for Indonesia and its people, and for a planet facing a climate catastrophe.

CITES is a veritable treaty. Concluded back in 1973, it is one of the first comprehensive multilateral environmental agreements to come into existence.

CITES is there to stop commercial trade in threatened species of plants and animals. It applies to species also covered by other international agreements, such as whales which have their own regime in the form of the International Convention for the Regulation of Whaling which established the International Whaling Commission.

Basically, all of the great whale species are inscribed in Appendix I to CITES, which means that strict limitations on trade apply. Commercial trade is completely out of the question, but moving specimens about for research is okay. The only exceptions will be if governments have entered reservations, which a number of states have done.

Japan has made reservations in relation to a range of whale species but, very significantly, not humpbacks. This means that CITES applies with full force to this species and Japan will be in breach of its CITES obligations if it goes ahead and harvests humpbacks this summer. This is because the convention applies to introduction of species from the high seas in the same way as it applies to cross border trade in animal specimens, and it expressly prohibits taking species from the high seas for commercial purposes.

There has been speculation in the press over the last few days that Japan may back down on its plans to kill humpbacks. It was even reported last night that Japan may never have intended to hunt the whale because the Nisshin Maru factory ship it has sent to the Southern Ocean does not have sufficient refrigeration capacity to take the extra hundres of tonnes of whale meat. It may well be that Japan has been using the proposed humpback hunt as a negotiating tactic to retain its much larger minke hunt.

At the Bali climate change summit the Rudd government demonstrated that it is streets ahead of the previous government on the global environmental challenge of our time. This week presents another opportunity for leadership in environmental diplomacy, this time on the vexed issue of Japanese whaling in the Southern Ocean near Antarctica.

The government is moving swiftly to begin surveillance of the Japanese whaling fleet, which has been dispatched to kill an unprecedented number of whales this summer. Projected catches for Japan’s "scientific" whaling program are 935 minke whales and, for the first time, 50 fin whales (which are an endangered species) and 50 humpback whales (which are vulnerable).

This is a dramatic escalation of the Japanese whaling program, which is now reaching an intensity not seen since the days of full blown commercial whaling. Although justified by the Japanese as scientific research under a loophole provision of the Whaling Convention, in reality it is commercial whaling conducted against the express advice of the Scientific Committee of the International Whaling Commission. Consider here not only the scale of the program (Japan will kill in one summer more whales for research than it did between 1954 and 1986) but also the lethal "research" methods (despite the existence of proven non-lethal alternatives).

The government’s surveillance efforts will collate evidence that could be used in a international case against Japan. Apparently we will soon learn what Australia’s litigation strategy will be. In this respect it is very welcome news that Prime Minister Rudd and Environment Minister Garrett have dusted off the report of the Sydney Panel of Independent International Legal Experts, which had been hidden in a bottom draw by the former government.

The Sydney Panel Report outlines a suite of legal options for successfully challenging Japan’s whaling program. These include taking a case to the International Court of Justice in The Hague for breaching the Whaling Convention, which allows genuine scientific research but prohibits plainly commercial whaling. Both Australia and Japan have accepted the jurisdiction of the World Court, so there is no impediment to bringing a case immediately.

Japan could also be hauled before the International Tribunal for the Law of the Sea in Hamburg for breaches of the Law of the Sea Convention. One of the advantages of this option is that the Tribunal can issue immediate provisional measures requiring Japan to cease is unlawful whaling activities. Other equally strong options include initiating compliance procedures under the Convention on International Trade in Endangered Species which could lead to a collective trade embargo.

There are many good legal options available to the Rudd government to move things forward on this issue. Although international litigation ought to be a last resort, Japan has simply not responded in good faith to any diplomatic overtures made over many years. On fisheries and whaling matters it continues to make ambit claims for ever increasing catches, against scientific advice and the wishes of the international community. Although international litigation is unlikely to bring a quick fix, and does carry risks, it can lead to positive change as was seen most clearly in the case of French nuclear testing in the South Pacific.

Dr Tim Stephens was Rapporteur for the Sydney Panel of Independent International Legal Experts and co-author of the Sydney Panel’s Report.

Up to now most climate change litigation in Australia (and elsewhere) has been concerned with mitigation. For instance cases have been brought challenging approvals for coal mines or coal-fired power stations that are contributing to rapidly rising greenhouse gas emissions globally.

Walker v Minister concerned a concept plan approval by the Minister for a residential subdivision and retirement development at Sandon Point, a picturesque spot on the coast near Wollongong. The applicant argued that the approval was invalid because, among other things, the Minister failed to take into account an implied mandatory consideration namely whether the flooding impacts of the project would be compounded by climate change.

Following an exhaustive review of the concept of Ecologically Sustainable Development and its incorporation in Australian law by legislators and the courts, Biscoe J made the following findings:

Climate change presents a risk to the survival of the human race and other species. Consequently it is a deadly serious issue...Climate change flood risk is, prima facie, a risk that is potentially relevant to a flood constrained, coastal development such as the subject project.

... ... ... ... ... ... ... ...

In my opinion, having regard to the subject matter, scope and purpose of the [Environmental Planning and Assessment Act 1979 (NSW)] and the gravity of the well-known potential consequences of climate change...the Minister was under an implied obligation to consider whether it was relevant and, if so, to take it into consideration when deciding whether to approve the concept plan. The Minister did not discharge that function.

When Kevin Rudd heads to Bali next week for the UN climate conference he will want the wheels to be in motion on a key election promise – Australian ratification of the Kyoto Protocol. Regrettably, no matter how quickly the Rudd Government acts, there is no way we can join the Kyoto club until around March 2008. Under the terms of Kyoto, it will only take effect for Australia 90 days after the government deposits the "instrument of ratification" with the UN.

Professor Don Rothwell argued in Crikey yesterday that even getting to this stage would involve some headaches for the Rudd Government because of the Australian treaty-making process. However, there appears to be no real obstacle to getting the documentation in the diplomatic bag as soon as the new cabinet is sworn in.

The first step in hitching Australia to Kyoto was taken back in 1998 when the Howard Government signed the agreement. Kyoto was subsequently repudiated by John Howard so none of the ordinary procedures for treaty making were activated. What normally follows treaty signature is preparation of a National Interest Analysis, the tabling of the treaty in Parliament, review of the treaty by the Joint Standing Committee on Treaties, the passage of legislation implementing the treaty and, finally, ratification by the Executive.

These steps are there so that there is Parliamentary review of proposed treaty action. However, the Kyoto Protocol is now a special case. It has been debated endlessly in the Parliament over the last decade, Kyoto ratification was one of Labor’s main election promises and it now appears to enjoy bipartisan support. These are compelling reasons for sidelining procedural niceties and there is a mechanism for doing so.

The Constitution gives the Executive, not the Parliament, formal authority to enter into treaties. And under the treaty-making procedures reformed by the Howard Government, the Executive reserved the right to ratify a treaty immediately if it is particularly urgent or sensitive and involves significant commercial, strategic or foreign policy interests. The Kyoto Protocol is just such a treaty.

The custom that ratification should not proceed until legislation is in place is a more substantial objection to immediate ratification of Kyoto. This penultimate step in the treaty-making process is there to safeguard Australia from breaching its international obligations by not giving domestic effect to a ratified treaty. Thankfully, in the case of Kyoto, this is not a problem as Australia can comply with the agreement for the time being without any new law.

Australia is roughly on track to meet its absurdly generous Kyoto emissions limitation target and there are already arrangements in place for collecting and reporting Australia’s emissions to the UN. Kyoto imposes few other requirements needing legislation. The only possible downside to not having a Kyoto law is Australian companies may not be able to take immediate advantage of some of the carbon trading opportunities offered by Kyoto.

It will be necessary to embark on a program of climate law reform if the Rudd Government is to discharge Australia’s international obligations fully and cut our greenhouse gas emissions. While work on this could conceivably be delayed until the complexion of the Senate changes in July 2008, there is no reason to wait for a climate law to be drafted and hit the books before Australia restores its international reputation by ratifying Kyoto and getting behind international efforts to address climate change.

However, it is clear that a more robust regime is needed to bring emissions down by the 50 to 80 per cent that is required by 2050 if we are to avoid dangerous climate change. The debate over the future of the international climate change regime is essentially between a top-down, Kyoto-style approach, on the one hand, and a bottom-up and fragmented approach on the other. Some Governments (notably Australia and the United States) have advocated a bottom-up approach largely as an excuse for inaction. They are not committed to implementing the serious response that is required. Other states such as the United Kingdom have been willing to demonstrate leadership through unilateral action to cut emissions. The United Kingdom's Climate Change Bill, would make emissions reductions of 60 per cent on 1990 levels by 2050 legally binding. The European Union as a region is also a recognised international leader, and is taking action in advance of any global pact.

Given the diversity of sub-national, national and regional regimes I may have been too hard on bottom-up approaches as a way of driving innovation in climate change mitigation efforts. I see the force of the argument that binding treaties such as Kyoto are very conservative, and can step no further than the willingness of the least committed member (Underdal's 'law of least ambitious program'). I perhaps should have qualified my criticism by saying that it depends how stringent sectoral approaches are. If they are of the nature of the EU ETS or the UK's Climate Change Bill then it's great. If they are of the nature of the United States and Australian supported Asia Pacific Partnership on Clean Development and Climate that sets no goal of reducing aggregate emissions, then it's not so good at all.

For a ventilation of some of these issues, check out this exchange in Science.