The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments. These include the release of the Chilcot Report, the result of the arbitration in the South China Sea, the increasingly pressing question as to how international law can address the unprecedented refugee situation, and the potential collapse of the International Criminal Court just over a decade after it was formed.
The Trans-Pacific Partnership
On 4 February 2016, the historic Trans-Pacific Partnership (“TPP“) was signed by 12 countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam. The TPP was an ambitious multilateral trade and economic agreement that took seven years to negotiate and involved economies representing roughly 40 per cent of global GDP.
The agreement includes (inter alia) measures to lower both tariff and non-tariff barriers to trade and to improve labour and environmental standards. The TPP will enter into force once it is ratified by at least six States that together have more than 85% of the GDP of the TPP’s signatories.
Yet following the inauguration of President-elect of the United States, Donald Trump, the United States will now quit the TPP. Given Australia’s close ties with the US and the comparative size of the other economies bar Japan in the agreement, Australia may also end up backing out. However, since the TPP was the result of significant effort between the States and their representatives, there is also a likelihood that Australia will remain in the TPP.
South China Sea Arbitration
The South China Sea has continuously been embroiled in territorial disputes concerning island and maritime claims among several sovereign states in the region. This has most recently culminated in the Philippines bringing an arbitration against China pursuant to the United Nations Convention on the Law of the Sea (“UNCLOS“) (the so-called “South China Sea Arbitration“). UNCLOS is closely tied to the Permanent Court of Arbitration (“PCA“) in The Hague, with all but one arbitration having been conducted under the PCA’s auspices.
Given Australia’s significant interests in the South China Sea, both economically, in terms of freedom of trade and navigation, and geopolitically, due to Australia’s links with Washington, Australia was keenly interested in the outcome of this arbitration.
On 12 July 2016, the Tribunal ruled in favour of the Philippines, declaring that China has “no historical rights” based on the “nine-dash line” map. Ripples from this ruling continue, with China rejecting the ruling and the United Nations holding no position on the case.
Trump’s election may also have reverberations in this area of international law. If Trump chooses to abandon the Obama administration’s “pivot to Asia”, thus potentially minimising the presence of US naval bases in the South China Sea, there could be significant consequences such as escalating military activity by China and other States in the region, and potentially the US.
If such an outcome were to eventuate, Australia would be significantly affected, not only in terms of geopolitical issues; China’s response could potentially signal a shift in international dispute settlement options in South East Asia.
Migration and Refugees
During his election campaign, Donald Trump’s frequent calls to “build a wall” at the United States-Mexico border raised discussion around immigration, a topic also felt keenly in the rest of the world. 2017 has already seen him take steps to start construction.
Deaths of migrants in the Mediterranean Sea hit record numbers in 2016, prompting calls for Europe as a whole to make passage safer for those making the crossing. Legal reform in this area was recommended to the European Parliament in 2015. However, any significant change in the international legal sphere on the issue of migration and refugees is yet to be seen.
The issue of migration and refugees was also brought up in Australia, with the governments of Nauru and Australia criticised yet again by the United Nations for the breaches of the international refugee and human rights law caused by the practices at the offshore detention camp in Nauru and Manus Island.
The “Nauru files” as released by The Guardian last year detailed particularly horrific instances of abuse and behaviour that are most likely in violation of international laws on torture. Hopefully, the New Year will bring new policy that puts an end to such practices and honours Australia’s obligations under the United Nations’ Convention Relating to the Status of Refugees and the Convention Against Torture.
International Criminal and Humanitarian Law
A major contributor to the large numbers of displaced people in 2016 was the violence that remains ongoing in nations such as Syria and Yemen, with reports of breaches of international humanitarian law.
The nature of conflict has changed significantly since the law was first drafted. For example, although the US has not explicitly intervened in the civil war in Yemen, by supplying Saudi Arabia with weapons that are used to commit alleged war crimes, it may be complicit in any findings of breaches of international humanitarian law. However, because the US is also a P5 member of the Security Council, it can veto certain actions to investigate or prosecute its conduct, and as a non-signatory to the Rome Statute, is not subject to the International Criminal Court’s (“ICC“) jurisdiction. The same can be said for Russia’s involvement in the Syrian civil war, raising significant questions as to the enforceability of international humanitarian law and whether the people of Syria and Yemen will be able to see justice done.
Any international legal action is made even more difficult by the fact that the ICC is losing members. Importantly, following the Gambia’s announcement of its departure, former President Yahya Jammeh lost the election to Adama Barrow, but initially refused to hand over power. Jammeh has been accused of several breaches of human rights, and his rejection of such a major institution of international criminal law with seemingly no consequences is clearly an undesirable precedent. Although the ICC has opened a preliminary investigation into war crimes in Afghanistan, potentially capturing the involvement forces from multiple nations including Australia, if more countries decide to leave, the ICC in 2017 may not continue at all.
In a positive development, the Report of the Iraq Inquiry, also known as the Chilcot report, was published on 6 July 2016. The Inquiry sought to review the lead up to and decisions that resulted in the United Kingdom taking part in the 2003 invasion of Iraq and what lessons could be learnt. The report contained a chapter analysing whether the United Kingdom’s actions in taking part in the invasion were in accordance with international law.
The report cited a number of legal and procedural shortcomings in the process by which the United Kingdom came to participate in the invasion, including the legal interpretations of United Nations resolutions which were used as justification for the use of armed force against Iraq and the ministerial processes by which these interpretations were acted upon. The final conclusion was that “the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.”
Having participated in the invasion under similar circumstances and within the same set of international laws, the Australian government has resisted calls for a review of its own legal justifications for the invasion.
The Paris Agreement and Climate Change
Climate change is a constantly pressing issue, yet developments in international law to address it are constantly stymied by governments unwilling to make concessions. The Paris Agreement, brought in earlier than anticipated, will hopefully bring the required momentum to effect significant action to address environmental concerns around the world.
However, States are still pushing to minimise obligations, particularly nations like China and India. They argue that the needs of developing nations are quite different to those of developed nations, and as such, a higher burden of compliance should be placed on developed nations as compared to developing.
The election of Donald Trump has obvious ramifications for the Paris Agreement in 2017. As a climate change denier, Trump is likely to lead the US away from the agreement or not comply with the obligations. As the largest economy in the world, and, arguably, the “leader” of developed nations politically, such actions would not only hinder international progress on reducing emissions, but would also bolster the arguments made by India, China and other developing nations that they should have more leeway in meeting targets. This would undermine the Agreement itself, and would possibly also incentivise Australia not to honour its obligation under the Agreement. This is a serious concern as Australia is one of the largest emitters per capita, coming in at 12th in the world just behind the US. It would also threaten the viability of future international environmental treaties by setting yet another precedent for non-compliance.
More localised, but still incredibly significant, was Brexit. Britain’s vote to leave the European Union (“EU“) is uncharted territory, and has numerous unknown ramifications on issues ranging from trade and finance to migration.
Though negotiations between the UK and the EU are yet to begin, it has been plagued by issues such as the resignation of the UK’s ambassador to the EU, a lack of certainty as to what is required by EU law in this situation, and multiple legal challenges in the UK. The UK Supreme Court has since ruled on 24 January 2017 that Parliament must vote to trigger Article 50, and formally commence Brexit.
The UK government has stated that it would seek to strengthen trade ties with Australia, but given the uncertainty around the Brexit process and its ramifications, the effect of Brexit on Australia, and indeed, the international community, are yet to be seen.
A clear theme that emerges is one of unpredictability and uncertainty: where do we go from here? How did this happen? What does it mean? 2016 can be considered as almost a “reset” for issues such as international trade and the geopolitical environment. However, on issues such as refugees and displaced people, international humanitarian law, and climate change, it has only shown that these dilemmas have been ongoing for many years now and need urgent solutions before their harms become so enormous that they cannot be rectified. Hopefully, 2017 is able to offer those solutions and international law can be reformed to be more robust and to address the issues of today, not of the times in which it was originally written.