Category: Uncategorized

Australia and the United States should work more closely in Antarctica, argues Professor Tim Stephens in a new Policy Brief for the United States Studies Centre in the University of Sydney.

Continue reading “Australia and the United States in Antarctica: Warm Partners on the Coldest Continent”

The question of the language in which international legal activity is to be conducted has always been contentious.Why does the UN have only 6 official languages? How were those languages chosen? What does that mean for people who do not speak those languages? Is French still important as a diplomatic language, or is English increasingly the dominant international language?
For a discussion of how the use of Esperanto may avoid some of the unfairness and difficulties associated with the increasing dominance of English in the international sphere, see my contribution to the debate on this topic on Voelkerrechtsblog:

Towards a more radical deterritorialisation of language

[A version of this posting appears on Kluwer Arbitration Blog.]
Critics of the Trans-Pacific Partnership (TPP) free trade agreement, and ISDS protections more generally, have often argued that a particular concern is that the US is not only a large source of FDI, but that it is ‘the nation whose corporations use ISDS the most’ (referring to ANU’s Professor Thomas Faunce). A recent paper by ANU’s Dr Kyla Tienhaara for the ‘GetUp’ campaign in Australia, in the context of ongoing parliamentary inquiries into ratifying the TPP, contends that:

The biggest users of ISDS are US multinational corporations. This means that entering into a trade deal with the US that includes ISDS provisions – such as the TPP – places a country at high risk of ISDS suits.

The inference is that Americans are particularly ‘litigious’ in the field of investment treaty claims – perhaps like they are purported to be in civil litigation in their home courts. In fact, empirical research into comparative civil dispute resolution patterns had long pointed out that a representative state within the US (in terms of urban/rural population mix, such as Arizona) has fewer filings per capita than countries such as Israel and Germany [Nottage & Wollschlaeger ‘What Do Courts Do?’ [1996] NZLJ 369].
Table A and Figure A-1 in the attached version of this posting confirm that investors from the US had indeed lodged the most ISDS claims by end-2015 (138). Yet, on a per capita basis (per 100,000 people in the home state), US investors are historically less litigious compared to investors from eleven other countries whose investors have filed considerable numbers of ISDS claims. Those states are all in the EU (including Belgium and Luxembourg, which generally conclude investment treaties collectively and whose investors have filed the most claims per capita), except for Switzerland (whose investors become the fourth most litigious) and Canada (the fifth most litigious home state). As further indicated in Table A and Figure A-2, if we group together most of these EU states their investors’ per capita ISDS claim rate is also higher than that for US investors.

Continue reading “Are US Investors Exceptionally Litigious with ISDS Claims?”

Australia should assume a leadership role in protecting Antarctica once again, writes Professor Tim Stephens in The Sydney Morning Herald.

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, a specialist on Antarctica, is professor of international law at the Sydney Law School at the University of Sydney. He is the co-editor with Professor Ben Saul of Antarctica in International Law (Oxford, Hart, 2015). Twitter: @ProfTimStephens.

By: Prof Luke Nottage, Sydney Law School
The Trans-Pacific Partnership free trade agreement, signed on 4 February 2016 among 12 Asia-Pacific economies, faces a rocky road to ratification. In the run-up to the US presidential election in November, both Donald Trump and (for now) Hillary Clinton say they are opposed.
Yet Australian Prime Minister Turnbull urged President Obama to put the FTA to a vote in Congress during the ‘lame duck’ session before inauguration the new President is inaugurated, to counter the spectre of protectionism but also for broader geopolitical reasons. The Abe Government, fortified by its mid-year Upper House election victory, would surely then ensure ratification by Japan, thus bringing the TPP into force within the two-year window from its signature. (Beyond that, it can still come into force but only if all 12 countries complete ratification.)
However, back home in Australia, the Turnbull Coalition Government faces its own challenges in enacting tariff reduction legislation needed before it too can ratify. After the 7 July general election, although the Government was returned with a razor-thin majority in the lower House of Representatives, it has a reduced minority in the upper house (30 out of 76 Senators). It would therefore need votes from at least nine other Senators, yet the (nine) Greens Senators will never vote with the Government given their Party’s implacable opposition to FTAs. Of the 11 other cross-bench Senators, Pauline Hanson’s ‘One Nation’ (four) Senators are notoriously xenophobic, while the Nick Xenophon Team (three) Senators favour more support for local manufacturing.
Accordingly, the Government will more likely have to court votes from the Labor Opposition. Yet the latter has generally not been cooperative in Parliament, perhaps hoping something will happen in the lower House to trigger a new election. And in June, Labor had reiterated that if elected, it would not countenance ‘new’ FTAs that added the option of investor-state dispute settlement (ISDS) – in addition to inter-state arbitration provisions – to better enforce substantive commitments aimed at encouraging more foreign direct investment (FDI). The TPP provides for ISDS, like almost all FTAs nowadays, and this continues to generate broader public debate – as does FDI more generally. My recent co-authored econometric study outlined below examines more generally the links between ISDS-backed treaty commitments and FDI, which can inform ongoing policy debates in Australia and further afield.

Continue reading “TPP and Foreign Investment: Does ISDS Promote FDI?”

Professor Tim Stephens explains the key findings of the tribunal in the South China Sea arbitration between the Philippines and China in the latest issue of the Law Society Journal

Image credit: Permanent Court of Arbitration

Australia and East Timor start conciliation talks in The Hague this week in an effort to resolve their bitter legal dispute over maritime boundaries – and $40 billion of petroleum rights.
Professor Ben Saul writes about the international legal issues in today’s Guardian newspaper:
https://www.theguardian.com/commentisfree/2016/aug/29/on-timor-australia-looks-like-its-denying-an-impoverished-neighbour-its-birthright

My new book, Indigenous Peoples and Human Rights: International and Regional Jurisprudence (Bloomsbury, 2016), is now available:
http://www.bloomsbury.com/au/indigenous-peoples-and-human-rights-9781901362404/
A 20% discount is available on checkout by entering the code “CV7”.

Indigenous Peoples and Human Rights explores how general human rights standards have enabled, empowered and constrained indigenous peoples in claiming and defending their essential economic, social, cultural, civil and political interests. The book examines the jurisprudence of United Nations treaty committees and regional human rights bodies (in Africa, the Americas and Europe) that have interpreted and applied human rights standards to the special circumstances and experiences of indigenous peoples. It focuses particularly on how human rights laws since the 1960s have been drawn upon by indigenous activists and victims to protect their interests in ancestral lands, natural resources, culture and language.
It further explores the right to indigenous self-determination; civil and political rights; economic, social and cultural rights (including labour rights); family and children’s rights; violence and discrimination against indigenous peoples; and access to justice and remedies for violations. The book also discusses international and regional efforts to define who is ‘indigenous’ and who is a ‘minority’, and the legal relationship between indigenous individuals and their communities.
The jurisprudence considered in this book significantly shaped the UN Declaration on the Rights of Indigenous Peoples 2007, which particularises and adapts general human rights standards for indigenous peoples. The book concludes by exploring future normative and implementation challenges in the light of the standard setting and consolidation, and political momentum, surrounding the UN Declaration and associated UN human rights mechanisms.

News broke last week that the Australian Government would not nominate Kevin Rudd for the office of Secretary-General of the United Nations – a piece on the Conversation by Co-Director of SCIL, Dr Emily Crawford, looks at the process of being put forward for the top job: https://theconversation.com/no-kevin-17-turnbull-opts-not-to-back-rudd-for-the-uns-top-job-63252

A number of SCIL members, including Professor Ben Saul, Professor Chester Brown, Professor Mary Crock, Ms Irene Baghoomians, Dr Malcolm Jorgensen, and Dr Emily Crawford, as well as other Sydney Law School colleagues such as Associate Professor Ed Couzens, participated in the 24th Annual ANZSIL Conference. SCIL members Professor Tim Stephens and Professor Vivienne Bath were also involved, in their capacities as ANZSIL President and Conference Panel Chair respectively – the program can be found here: https://law.anu.edu.au/events/anu-college-law/24th-anzsil-conference-international-law-everyday-fieldwork-friction-and-fair