ILA Conference 2018 – Day 4: The Highs and Lows of Brokering Peace in International law and a Montreal Protocol 2.0

Day four was like walking into IKEA – you wanted everything, even if it wasn’t relevant to you or you had no practical use for it, and it was anxiety inducing to walk past a room without going inside.  The sessions were topical, contentious, and the panelists colourful and compelling in their breadth and depth of experience.

The topics covered the general principles of law and the rules based order, UN Peacekeepers, international investment law, foreign judgements, non-state actors, business and human rights, elected members of the Security Council, balancing interests in the law of the sea, private international law in China, legitimacy and free trade and investment agreements, new weapons of warfare, environmental challenges in the Pacific, refugee law challenges, issues in private international law, and outer space.

The agony of choosing only four.

In the session on UN Peacekeepers, the use of force and collateral damage, Professor Siobhan Will showed a highly compelling snippet of her documentary film, It stays with you, investigating the alleged killing of civilians by peacekeepers in the MINUSTAH Haiti operation.  The excerpt was as devastating as it was powerful. The anguish of Haitian people was an important frame for the rest of the session. The panel enriched the discussion with field experience.  Insight into the realities and challenges on the ground provided a degree of nuance to the legal analysis of peacekeeping.  Both highly distinguished, former legal officers in the navy and the army, Professor David Letts AM CSM and Professor Bruce Oswald CSC, discussed the challenges associated with peacekeepers being accountable only to their respective domestic laws, the convoluted complaint process from on the ground and the transparency issues of the UN’s Board of Inquiry.

During the session on the Security Council, the panel challenged the sentiments of the audience that the Security Council is shackled by the politics of the big powers, and therefore a useless organ.  Sir Mark Woods, former legal advisor to the United Kingdom’s Foreign Office (1999-2006), was adamant on two fronts “Don’t demonise the Security Council”, and “The power of veto is essential.”Sir Wood argued that it is a mistake to separate out the Security Cocuncil into the P5 and the E10.  As a collegial body their relationship is more fluid, and both are permeable to diplomatic influence.  As for the power of veto, he argued “Without them it would turn into the General Assembly, passing resolutions that no-one listens to.”

The other panelists argued that the Security Council is playing an increasingly important role in other areas such as sustainable development via the millennium development goals, and by identifying climate change and resource stress as a root cause for insecurity and conflict.

Professor Anastasia Telesetsky from the University of Auckland delivered a fiery presentation on plastics and the ocean.  Professor Telesetsky asked us to imagine Henderson Island, a biodiverse island in the Pacific that has been untouched by humans.  Naturally, most of us imagined a tropical paradise, with pristine beaches and flourishing wildlife.  She swiftly slammed us into reality, with a picture of a beach covered in plastic.

How could this be?”she asked. “When no humans have touched this place? 3670 pieces of plastic wash up here every day, carried here by the ocean from the rest of the world.” At this point, those in the audience nursing disposable coffee cups, guiltily lowered them from view.

Taking the example of Kenya, where the government has banned the use of plastic bags and criminalised plastic bag production, she asked;

Why is Kenya only calling on East Africa to do the same?“ Why not the whole world?!…Why not a Montreal Protocol 2.0!?… Here’s a crazy idea: Why not a Henderson Island Single Use Plastics Protocol 2018?”    

Delegates flooded in to the much-anticipated, Timor-Leste – Australia Conciliation session, paneled by the representatives for Timor-Leste, Gitanjani Bajaj and Sir Michael Wood, and the representatives for Australia, Amelia Telec and Justin Whyatt.  Sandwiched in between Timor-Leste and Australian’s representatives was Professor Donald Rothwell from the Australian National University, who has been studying Australia’s borders in the Timor Sea since 1983.  Both sides were in agreeance of the benefits of conciliation to negotiate maritime boundaries. The advantages as they saw them was a negotiated result, where both sides have agreed to an outcome rather than having a result that neither side might be happy with being imposed by a judicial body. The other advantage was the conciliation’s facilitation of legal as well as non-legal considerations.  Although the Australian side disagreed with Professor Rothwell that Australia’s boundaries with Indonesia is likely to be affected, the panel was united in their positivity in the outcome, and the option of conciliation that may be paved for other nations seeking to negotiate their maritime boundaries.

This summary was prepared by Madeleine Miller.  Madeleine is a policy lawyer and freelance journalist based in Canberra.  Her endeavour into journalism is driven by an avid desire to promote international law in mainstream media.