ILA and Baker & McKenzie Event – ‘Sea Level Rise and International Law’ – 10 August 2015

The Editors would like to draw readers’ attention to an upcoming seminar in Sydney, hosted by the International Law Association and Baker & McKenzie.  The seminar is on ‘Sea Level Rise and International Law’.  A flyer about the seminar is available here — it is on Monday 10 August 2015, 12:00 pm to 2:00 pm at Baker & McKenzie’s Sydney office.

The speakers are all members of the ILA’s Committee on International Law and Sea Level Rise:

  • Professor David Freestone (Executive Secretary of the Sargasso Sea Commission) — Committee Co-Rapporteur;
  • Professor Rosemary Rayfuse (University of New South Wales) — Committee Member; and
  • Professor Clive Schofield (University of Wollongong) — Committee Member.

The speakers will discuss the Committee’s work regarding the ‘consequences of sea-level rise on entitlements to maritime areas and on the natural environment’. They will also discuss the Committee’s draft interim report and future programs.  Professor Rayfuse recently published a report on the Committee’s work on the ILA Reporter.

ILA Committee Update: Committee on International Law and Sea Level Rise — Rosemary Rayfuse

Australian members of the Committee:

  • Professor Jane McAdam, UNSW Australia – CoRapporteur
  • Professor Rosemary Rayfuse, UNSW Australia – Chair’s Nominee
  • Professor Clive Schofield, University of Wollongong – Ordinary Member
  • Derek Wong – Ordinary Member (Alternate)

The International Law Association (ILA) Committee on International Law and Sea Level Rise (Committee) held its first inter-sessional meeting on 12–13 June 2015 in Oslo. Hosted by Professor Davor Vidas (Committee Chair) and the Fridtjof Nansen Institute, the meeting was attended by 16 Committee members and 7 observers. After two intensive days of discussions, the participants wrapped up their deliberations with a dinner cruise on the Oslo fjord. Not only was the meeting productive, but it was highly enjoyable as well.

The foundation and mandate of the Committee

The Committee has its origins in the 2012 final report Baselines under the International Law of the Sea, which recognised that the loss of a state’s territory due to sea-level rise is not only a baseline or law of the sea issue, but encompasses other wider areas of international law. This was acknowledged in Resolution No 1/2012: Baselines under the International Law of the Sea, adopted at the 75th ILA Conference in Sofia, which led to the establishment, in the same year, of this new Committee.

The mandate of the Committee, approved by the ILA Executive Council and recalled in its first session, is ‘to study the possible impacts of sea-level rise and the implications under international law of the partial and complete inundation of state territory, or depopulation thereof, in particular small island and low-lying states;’ and to ‘develop proposals for the progressive development of international law in relation to the possible loss or all or parts of state territory and maritime zones due to sea-level rise, including the impacts on statehood, nationality, and human rights.’

As outlined in the proposal for the establishment of the Committee, three main avenues of enquiry were initially considered as relevant:

  • The consequences of sea-level rise on entitlements to maritime areas;
  • The consequences of sea-level rise on statehood; and
  • The consequences of sea-level rise on human rights and mobility (displacement, migration and planned relocation).

The research areas were reflected in the appointment of Professor David Freestone and Professor Jane McAdam as Co-Rapporteurs.

Work of the Committee in 2014–2015

In April 2014, the Committee held its first meetings in Washington DC, two closed sessions (see here and here) and an open session (here), during which participants discussed the working methods of the Committee and its mandate, as well as a background paper relating to the theme of mobility. It was decided to approach the issues initially in two distinct streams; one relating to maritime zones and the other to mobility and human rights, and, at a later stage, to concentrate on joining the streams in the consideration of the statehood issue. In this latter regard, it was suggested that representation and active participation in the work of the Committee by members from the Pacific and other regions likely to be most affected should be sought and encouraged. In addition, it was noted that the Committee’s mandate also invited broader considerations relating to the consequences of sea-level rise on other areas of international law including, but not limited to, international environmental law and the law relating to climate change adaptation and mitigation. The desire for the inclusion of additional expertise on the Committee to enable a fuller consideration of these broader issues was expressed.

At the inter-sessional meeting on 12–13 June 2015, discussion papers were presented on the two main areas of the Committee’s mandate. Of the Australian members, Professor Clive Schofield spoke on options to address the instability of baselines and maritime limits as a result of sea level rise and outlined recent trends in state practice towards the fixing of maritime boundaries and outer limit lines. In addition, in response to the wishes of the membership expressed during the Washington meetings, Professor Rosemary Rayfuse presented a paper on the broader issue of the impacts of sea-level rise on regimes relating to the protection, conservation and management of natural (as opposed to human) systems, including the Convention on Biological Diversity, the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Ramsar Convention on Wetlands of International Importance. Co-Rapporteur Professor Jane McAdam presented an extensive draft interim report on human rights and mobility prepared by a working group comprised of herself, Committee members Bruce Burson (New Zealand) and Walter Kälin (Switzerland), and Sanjula Weerasinghe.

Robust discussions were held on both the law of the sea and the human rights/mobility issues. There was a significant amount of agreement among the Committee members on both the issues for consideration and the possible recommendations that might be made as work progresses, which will be reflected in a draft interim report. This will be circulated to Committee members for comment and input prior to its submission for consideration at the 2016 ILA Conference in Johannesburg.

ILA members interested in the work of the Committee are invited to attend a seminar to be held at UNSW Law on Monday 10 August 2015 (details forthcoming) at which Co-Rapporteur Professor David Freestone will speak on the law of the sea and statehood issues.

Tribunal holds hearing on jurisdictional questions in Philippines v China arbitration — Lea Christopher

Introduction

From 7 to 13 July 2015, the Arbitral Tribunal held the first hearing in the arbitration between the Republic of Philippines and the People’s Republic of China in connection with their dispute in the South China Sea.  The arbitration was submitted by the Philippines on 22 January 2013, pursuant to the compulsory dispute settlement provisions under part XV of the United Nations Convention on the Law of the Sea (UNCLOS).  A five member ad hoc tribunal was constituted under annex VII of UNCLOS and sat in the Peace Palace, the headquarters of the Permanent Court of Arbitration, in the Hague. While the hearing was not open to the public, the Tribunal permitted the governments of certain states (Indonesia, Vietnam, Japan, Thailand and Malaysia) to send small delegations as observers.

The arbitration concerns disputes between the Philippines and China in relation to their maritime entitlements in the South China Sea. China has continued to reiterate its position of non-acceptance of (and non-participation in) the arbitration, maintaining that it believes in resolving disputes in the South China Sea via bilateral negotiations and that the arbitration violates previous agreements between the two states. The Philippines has sought to challenge this position at the hearing, submitting that they have pursued a course of bilateral and regional diplomatic efforts to resolve its disputes with China for almost two decades without success. The Philippines says that this has left no recourse other than arbitration.

In its Statement of Claim, the Philippines relies on UNCLOS which, it submits, defines and limits the entitlements of coastal states to a territorial sea, exclusive economic zone (EEZ) and continental shelf (and sets out states’ rights and obligations within those areas).  In particular, the Philippines relies on provisions that provide that a state’s EEZ cannot extend beyond 200 nautical miles from its mainland coast (or any island over which the state has sovereignty) (article 57), and that its continental shelf extends to the same distance (unless it can be established that the state’s continental margin extends beyond that distance) (article 76).

According to the Philippines, China contravenes these provisions by claiming, on the basis of its nine-dash line, ‘historic rights’ to areas that are beyond its 200M limit, including some areas that fall within 200M of the coasts of the Philippines’ main islands.  While China is a signatory to UNCLOS (which enabled the Philippines to commence the compulsory arbitral proceedings), it claims that it does not subscribe to some of its tenets.

However, the purpose of the first hearing was not to decide the Philippines’ substantive claims, but to decide whether the Tribunal has jurisdiction over these claims and whether they are admissible.

The Philippines’ substantive claims

At the hearing, the Philippines outlined the principal substantive claims that it intends to pursue if the Tribunal decides the question of jurisdiction in its favour. They can be summarised as follows:

  1. China is not entitled to exercise its alleged ‘historic rights’ over the waters, seabed and subsoil beyond the limits of its entitlements under UNCLOS.  Its nine-dash line, insofar as it purports to define the limits of China’s ‘historic rights’, is not supported by international law;
  2. The various maritime features relied upon by China to assert its maritime claims in the South China Sea are not islands (as China claims) but are either ‘rocks’ (within the meaning of article 121, paragraph 3 of UNCLOS), ‘low tide elevations’ or are permanently submerged.  While rocks generate an entitlement to a territorial sea of 12M (allowing China to exercise sovereignty over that area), they cannot generate an entitlement to an EEZ or continental shelf beyond that limit (and low tide elevations generate no entitlements).  China’s significant construction activities on various maritime features cannot change their nature in law;
  3. China has breached UNCLOS by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction; and
  4. China’s fishing practices have damaged the marine environment in the South China Sea, including within the Philippines’ EEZ, in breach of UNCLOS. UNCLOS requires states parties to adopt measures to protect the marine environment.

The jurisdictional question

China’s position

In a position paper published in December 2014 (see also a summary of the paper here), China contended that the Philippines’ claims are beyond the scope of the Tribunal’s jurisdiction because they require the Tribunal to make determinations on territorial sovereignty and the delimitation of sea boundaries.

China made three interrelated claims in support of this contention. First, it claimed that UNCLOS does not give the Tribunal jurisdiction to address territorial sovereignty-related questions. According to China, in order to decide any of the Philippines’ claims, the Tribunal would be required to determine, directly or indirectly, the territorial sovereignty over various maritime features in the South China Sea, which is beyond the scope of UNCLOS.

Secondly, it claimed that in 2006, pursuant to article 298 of UNCLOS, China opted out of compulsory arbitration on particular categories of disputes, including those relating to sea boundary delimitations. Article 298(1) provides that, when signing or ratifying UNCLOS (or any time thereafter), a state may opt out of compulsory arbitration with respect to particular categories of disputes, one of which relates to sea boundary delimitations.  Article 298(a)(i) then provides that, when such a dispute arises and no agreement within a reasonable period of time is reached in negotiations, the opted out party must accept, at the request of the other party, submission of the matter to conciliation.

The Philippines has not requested that the parties participate in conciliation pursuant to article 298(a)(a) presumably because, as discussed below, its position is that the dispute does not concern sea boundary delimitations and therefore has not been ‘opted out of’ by China.

The Philippines’ position

At the hearing, the Philippines submitted that its claims do not require the Tribunal to make determinations on the question of territorial sovereignty or the delimitation of sea boundaries (its statement is available here). It emphasised that the Tribunal is really being asked to do the following:

  1. To clarify the nature of the disputed features in the South China Sea (ie, whether they are rocks, islands or low-tide elevations) that are relied upon by China to assert its claims, because the features’ characterisations determine whether they can be appropriated by China or can generate their own 200M EEZ; and
  2. To examine the validity of China’s nine-dash line based on its ‘historical rights’.

According to the Philippines, the question to be determined by the Tribunal on this issue, therefore, is whether UNCLOS allows a state to claim maritime entitlements based on ‘historic’ rights beyond those provided for in UNCLOS.

Accordingly, a key issue in the dispute is whether it is possible for the Tribunal to make determinations about the nature of particular maritime features and their entitlements, without addressing who actually exercises sovereignty over those features. The Tribunal will also need to consider whether it can determine the validity of the nine-dash line without addressing sovereignty over any of the maritime features within the area delimited by the line.

On a higher level, the Philippines painted the case as being a test of the utility and feasibility of UNCLOS compulsory dispute resolution mechanisms. Emphasising China’s ‘aggressive and disconcerting’ activities in the South China Sea, the Philippines contended that the dispute resolution mechanisms give weaker states the opportunity to ‘challenge the powerful on an equal footing’ on the belief that ‘law triumphs over force’. On this basis, according to the Philippines, a finding that the Tribunal lacks jurisdiction to hear its claims would render the UNCLOS dispute resolution mechanisms almost valueless for small states parties vis a vis their more powerful neighbours.

Conclusion

Notwithstanding the Philippines’ contentions concerning the case’s significance to the international community, the jurisdictional questions facing the Tribunal turn on the characterisation of the Philippines’ substantive claims and, in particular, whether they involve the determination of questions of territorial sovereignty.

The Philippines now has until 23 July 2015 to provide supplementary written submissions in response to questions posed by the Tribunal at the hearing. The Tribunal expects to determine the issue of jurisdiction by the end of the year. If it decides that it does have jurisdiction over the Philippines’ claims (and they are admissible), the matter will proceed to a substantive hearing. However, China has reiterated that it will not alter its position in the South China Sea and, therefore, is unlikely to comply with any unfavourable ruling ultimately made by the Tribunal.

Lea Christopher is a lawyer at Clayton Utz in Canberra. The views expressed in this article are solely her own.

Book Launch – The Silent Victim: Crimes Against the Environment

This event hosts the Australian launch of Professor Steven Freeland’s new book, which considers the inclusion of a new crime in the Rome Statute of the International Criminal Court, to be called ‘Crimes Against the Environment’.

Professor Freeland and Professor Don Henry will discuss the environmental challenges that warfare poses, the legal recourse available under the current legal framework, and the potential for prosecution and remedies under the proposed crime of ‘Crimes Against the Environment’.

The event will be held at 6 pm (for a 6.30 pm start) on 17 August 2015 at King and Wood Mallesons, Level 61, Governor Phillip Tower, 1 Farrer Place, Sydney.

The event flyer can be accessed here.

 

Menzies Foundation scholarships in law

The Menzies Foundation is offering two scholarships for studying commencing in 2016.

  • The Sir Robert Menzies Memorial Scholarship in Law is for courses of study at UK universities.
  • The Sir Ninian Stephen Menzies Scholarship in International Law is for courses of study in international law at a prestigious overseas university.

Both scholarships are valued at up to $75,000.

Applications are now open and close on 31 August 2015

The Menzies Foundation is looking for outstanding law graduates who are shaping up to be the next generation of leaders and looking to do further postgraduate study overseas.

To be eligible, applicants must be Australian citizens and hold a 1st class honours degree or equivalent and be planning to continue their career in Australia on completion of their study.

Candidates should not only display academic excellence but also demonstrate outstanding leadership qualities and a commitment to and interest in community service.

The funds are to meet compulsory university fees and contribute towards the cost of books, equipment, living and travel.

You can see last year’s winners, Patrick Wall and Andrew Currie, online at: http://menziesfoundation.org.au/scholars/scholars-current

For the full prospectus and to apply:

Sir Robert Menzies Memorial Scholarship in Law: http://menziesfoundation.org.au/scholarships/law

Sir Ninian Stephen Menzies Scholarship in International Law: http://menziesfoundation.org.au/scholarships/international-law

International Economic Law Round-Up — Kyle Dickson-Smith

Political Hurdles for International Trade Deals Promote Transparency; Proliferation of Plain Packaging Laws and Associated Disputes

In the last few months there have been several key developments in international economic law:

  • The passage of both the Trans-Pacific Partnership (TTP) and Transatlantic Trade and Investment Partnership (TTIP) has been delayed due to political hurdles between the EU and the US. Local debate in the EU and US as to the benefits and costs of investor-state dispute settlement procedures (ISDS) has also arisen. While the US Congress has passed legislation to assist their adoption of the TPP, the current European political climate has made the future direction of ISDS in the EU unclear; and
  • Norway has announced it will implement standardised cigarette packaging while major tobacco companies have challenged UK plain packaging laws.

Political hurdles for the TTP lifted

After hitting repeated stumbling blocks in US Congress, the Trade Promotion Authority legislation (TPA legislation) eventually made headway. On 25 June 2015, the US Senate approved the TPA legislation and on 29 June the US President signed it into law.

The TPA legislation grants President Obama the power to submit completed trade agreements to Congress for a straight up-or-down vote without the possibility of amendment. The legislation was approved in the Senate late last month, following a debate as to the merits of ISDS.

On the international front, there have been ongoing negotiations in areas of trade and investment, particularly with respect to market access and intellectual property.

The previous ministerial level meetings of TPP member countries were postponed, reportedly due to the TPA legislation not being in place. However, negotiators did meet in Guam to discuss issues of intellectual property, textiles, investment and labour. It is anticipated that the passage of the TPA legislation will facilitate the resolution of the remaining contentious issues in the TPP negotiations, which include tariffs and quota removal on agriculture, with non-tariff barrier reductions on other goods.

While major US labour unions have lobbied against both the TPA legislation and the TPP on the basis that American workers would be detrimentally affected (by, for example, displacing local manufacturing and service sector jobs), business organisations have identified the trade deal as important in ‘levelling the playing field‘ for American businesses.

Political hurdles for the TTIP and ISDS

The European Parliament’s international trade committee (INTA) has outlined a series of recommendations in support of the TTIP’s trade and investment agenda, but the EU’s preferred format of the ISDS mechanism that it will formally propose to the US is far from clear. This follows the EU’s suspension of TTIP trade talks in early 2014 for the purpose of holding public consultations that were prompted by the ‘unprecedented public interest‘ in the negotiations.

INTA has proposed an independent arbitration court with publicly appointed judges and an appellate mechanism. This model is based on proposals from the EU Commission that were released in early May 2015.

The Commission’s proposals addressed the relationship between ISDS and domestic courts, including:

  • the right to regulate in the public interest; and
  • improving the function of arbitral tribunals through, for example, a permanent multilateral court and appellate mechanism to arbitrate investment disputes.

These proposals were based on the ISDS mechanism contained in a trade agreement negotiated between the EU and Canada (CETA) last year. The EU Commission has stated that the CETA ISDS is both innovative in its substance and procedure.

INTA made further recommendations on investment protection provisions, which were reportedly the result of a compromise between the European Parliament’s two largest groups, the Socialists & Democrats and the European People’s Party.  INTA’s recommendations are not binding, but are indicative of whether any agreement would be approved before a full session of the European Parliament.

Tobacco plain packaging

Developments have arisen in the sphere of tobacco plain packaging disputes. In its WTO claim against Australia, Ukraine made a request to suspend proceedings. Australia has supported this request. Ukraine based its decision to suspend its action on limited resources as well as absent ‘economic logic’. Whilst it is not clear how long the suspension will last, under the Dispute Settlement Understanding, Ukraine is allowed up to 12 months before the WTO Panel’s authority will lapse.

Meanwhile, Norway issued a notification under the WTO Technical Barriers on Trade Agreement, that it is proposing a requirement for all tobacco products to be sold in standardised packaging. Norway explained that the proposal will involve ‘uniform layout and design on all tobacco packaging, as well as a ban on manufacturers’ logos, trademarks, images, colours or other forms of advertising’. It is not clear when the new requirements will enter into force.

In the UK, tobacco companies British American Tobacco and Philip Morris have challenged the legality, under both English and EU law, of the UK’s plain packaging laws before the High Court. It is argued that the laws deprive the tobacco companies of trademark rights without fair compensation as well as preventing the free movement of goods.

In a press release, British American noted that it ‘did not ultimately prevail’ in its challenge against Australia’s plain packaging laws in the High Court owing to a ‘unique requirement in the Australian constitution that meant it would only win the case if it could prove the Australian Government had received a benefit by removing its brands’. British American stated that no such requirement exists in the UK.

Kyle Dickson-Smith, FCIArb. is an international lawyer and arbitration counsel at Appleton & Associates International Lawyers, who specialises in trade law and investment treaty disputes, such as the NAFTA. The views expressed in this article are those of Kyle Dickson-Smith and are not attributable to Appleton & Associates.

 

Response to Department of Immigration discussion paper on Australian citizenship – Stephen Tully

The Department of Immigration and Border Protection issued a discussion paper entitled ‘Australian Citizenship – your right, your responsibility’ raising several questions, including whether Australia should deprive Australian mono and dual nationals of Australian citizenship.

This submission by Stephen Tully – a member of the ILA’s National Management Committee – reviews international legal material and the UK’s experience relevant to the questions raised, identifies the applicable prerequisites, standards and safeguards, and considers some possible domestic and international consequences for affected individuals and Australia.  It is available here.

Tully states in the executive summary of his submission that:

  1. Proposals to deprive Australians of citizenship which draw upon legislation taken from the United Kingdom (UK) must appreciate the particular international and national background to that legislation. The UK position cannot be transplanted into the local context without appropriate adaptation.
  2. An outcome which ensures that former Australian nationals are not rendered stateless would be consistent with international law on preventing statelessness. The deprivation of Australian nationality for dual nationals would be consistent with that objective.
  3. The international legal consequences of depriving dual national Australians of their Australian nationality must be understood. Other States may not be obliged to recognise and give effect to the deprivation of Australian nationality by Australia. With respect to both citizenship deprivation and the expulsion of aliens, Australia must also comply with existing international law (on statelessness, nationality and the protection of human rights) in addition to emergent international law concerning the expulsion of aliens.

Plain packaging of tobacco products in the WTO – Globalisation and the increase of tobacco usage – Pauline Wilson

This article is the second in a series that investigates and reports on the disputes over Australia’s tobacco plain packaging measure in the World Trade Organization (WTO).  Plain packaging for tobacco products has been debated intensively in the WTO for over three years and the panel is expected to continue until at least the first half of 2016 (see Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (WT/DS 435, WT/DS 434, WT/DS 441, WT/DS 458, WT/DS 467)) (28 April 2014).

The last article examined the introduction of plain packaging legislation in Australia, the efficacy of the measure and the challenges being brought against it at the WTO.  This article examines the relationship between trade liberalisation and tobacco usage.  In doing so, it highlights the important role of international courts and tribunals, including the WTO Panel and Appellate Body, in maintaining a  coherent international legal system.

Does trade liberalisation contribute to increased tobacco usage?

During the 1980s, the US threatened sanctions and retaliation under the General Agreement on Trade and Tariffs (GATT) against Japan, South Korea and Taiwan unless they opened their markets which were closed to foreign tobacco companies.  In response to this pressure, those countries opened their markets to foreign tobacco companies, increasing their populaces’ tobacco usage.  In 1989, the US challenged Thailand’s 1966 Tobacco Act for placing limitations on American tobacco companies.  A GATT panel found against Thailand in 1990, forcing it to open its market to tobacco multinationals.

These cases illustrate how international trade agreements and state pressure have indirectly facilitated the proliferation of western tobacco in developing countries, which increases rates of smoking.  A report by the World Health Organisation (WHO Report) has found that the link between trade liberalisation and increased tobacco consumption is strongest in low and middle-income countries. The WHO Report also found that foreign direct investment (FDI) leads to higher rates of tobacco consumption.  This is because FDI is an alternative pathway to accessing a foreign market with high barriers to trade.  The finding is in line with basic trade theory, which suggests that liberalising a market will increase competition and efficiency in the supply of a product to that market.  Other factors, including marketing, tobacco advertising, promotion and sponsorship, and the international movement of contraband and counterfeit cigarettes, have also contributed to the explosive increase in tobacco usage.

In order to combat the rise of tobacco consumption and disease globally, governments have employed increasingly strict tobacco control measures.  Australia was in fact not the first country to consider plain packaging for tobacco products.  New Zealand first recommended that cigarettes be sold only in white packs with black text and no colours or logos as early as 1989.  In 1995, the Canadian parliament passed a plain packaging law which was ultimately struck down by its Supreme Court.  Presaging the negative reaction of the tobacco industry to global plain packaging reform, Phillip Morris threatened to reduce future investment in Canada in response to its plain packaging laws.  Upon the release of Australia’s draft legislation, Imperial Tobacco stated it would ‘make every effort to protect its brands and associated intellectual property and … take legal action’.  The approaches of Phillip Morris and Imperial Tobacco reflect the tobacco industry’s general position, which is to pursue every avenue to challenge implementation of plain packaging.

Regional and bilateral free trade agreements provide one such avenue for tobacco control laws to be challenged.  For example, Philip Morris Norway made a challenge under the European Economic Area Agreement against Norwegian bans on the display of tobacco products at the point of sale.

The tobacco industry is also using its rights under international investment agreements to challenge tobacco control and regulation.  In addition to the challenges made under the Australia–Hong Kong bilateral investment treaty, Philip Morris Switzerland recently brought a similar claim against Uruguay, arguing that its tobacco packaging measures violate the Switzerland–Uruguay bilateral investment treaty.

The increase in bilateral and multilateral free trade and investment agreements provides tobacco companies with a resource with which to disrupt reform.

Supporting and internationally coherent legal system

Tobacco companies are seeking redress in domestic courts, international arbitral tribunals and the WTO. The use of multiple fora is contributing to the wider dilemma of ‘conflicting rules and clashing courts’.  This poses the threat of undermining international law generally because its diversification and expansion is leading to ‘the fragmentation of international law’.

Fragmentation is characterised by Pieter Jan Kuijper as a ‘deplorable development’ which is brought about by a decrease in the application of general principles of international law in specialised jurisdictions, including WTO proceedings.  The International Law Commission (ILC), on the other hand, characterised it as a natural consequence of the expansion and specialisation of different areas of international law. Either way, WTO panels and the Appellate Body should be ensure that they interpret opposing norms harmoniously given the dangers of further fragmentation.

The ILC identifies several approaches to establish an internationally coherent legal system.  These include:

  • relationships of interpretation, where one norm assists in the interpretation of another using the Vienna Convention on the Law of Treaties;
  • relationships of conflict, which refers to the case where two norms that are both valid and applicable point to incompatible decisions so that a choice must be made between them; and
  • the principle of harmonisation, which is a generally accepted principle that when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations.

As providing security and predictability to the multilateral trading system is an overarching goal of WTO dispute settlement, it is important that this forum is able to harmonise the conflict between international trade and domestic and global health policy.

The Framework Convention on Tobacco Control (FCTC) is important to the harmonisation process as it clarifies existing standards and key protections in relation to public health and tobacco control.

The entry into force of the FCTC in 2005 was a decisive moment for global tobacco control. It is an evidence-based treaty developed in response to the globalisation of tobacco consumption and related harm. Ratifying the FCTC places all parties under an obligation of good faith (pacta sunt servanda) to abide by the minimum legal standards outlined in the treaty and to not to undermine the objectives set out in it. In addition to minimum commitments, parties are ‘encouraged to implement measures beyond those required by this Convention and its protocols’. This is further supported by the object and purpose of the FCTC, which states that the parties are ‘determined to give priority to their right to protect public health’. As of 2015, there are 180 parties to the FCTC in contrast to the WTO with 161 members. In fact, there are just eight WTO members not party to the FCTC, two of which are challenging Australia’s measure.

Another solution may lie in mechanisms found in non-WTO treaties with trade related aspects, including multilateral environmental agreements (MEA). The Cartagena Biosafety Protocol to the Biodiversity Convention — which has seven more signatories than the WTO — not only has a provision relating directly to trade and environmental agreements, but also advances the principle of mutual supportiveness. This is a principle by which international legal rules are to be understood and applied as reinforcing each other with a view to fostering harmonisation and complementarity, as opposed to conflicting relationships.

So far, no action affecting trade and taken under an MEA has been challenged in the WTO system.  However, the WTO Trade and Environment Committee recognises that MEAs provide internationally agreed solutions for trade problems, which it says better than one country trying to change another countries’ environmental policies on its own.  It is possible that the principle of mutual supportiveness, and other trade facilitative measures, can assist the WTO Panel and Appellate Body to interpret WTO provisions in a fashion which supports international legal coherence.

The next article in the series will look at how the FCTC should be used to interpret Australia’s obligations under WTO law in a manner which is consistent with general international law.

Pauline Wilson recently graduated from an LLM at the University of Amsterdam with a focus on international trade and investment law. Prior to that she graduated from the ANU with a combined Bachelor’s of Arts and Law.

Timor-Leste withdraws ICJ proceedings against Australia in relation to seizure of legal documents

On 12 June 2015, the International Court of Justice (ICJ) confirmed that Timor-Leste had officially withdrawn its case against Australia in Questions relating to the Seizure and Detention of Certain Documents and Data (see this ICJ Press Release).  Timor-Leste commenced the proceedings against Australia in December 2013 in relation to the seizure by ASIO of Timorese legal documents relating to the dispute between the two states before a tribunal at the Permanent Court of Arbitration.  The arbitration concerns  the validity of the Treaty on Certain Maritime Arrangements in the Timor Sea following allegations that Australia spied on the Timorese Cabinet during the treaty negotiation process.  The resolution of the ICJ proceedings come only after Australia returned the seized documents.

The ICJ had previously indicated provisional measures (see the ICJ Summary) in March 2014.  The ICJ determined that the sovereign equality of states provided an inviolable right to confidential correspondence with their legal counsel.  Whilst undertakings given by Australia not to review the documents reduced the risk of disadvantage to Timor-Leste, orders were still given by the ICJ to fully protect Timor-Leste’s rights to their confidential legal documents.  The ICJ’s measures required that Australia:

(a)               ensure that the content of seized materials was not used to the disadvantage of Timor-Leste;

(b)              keep all documents, electronic data and copies of the data under seal; and

(c)               not interfere in communications between Timor-Leste and its lawyers in relation to the arbitration.

As the dispute between the two states has concluded at the ICJ, the central arbitration dispute will now resume.  Australia’s Department of Foreign Affairs and Trade, commenting on the withdrawal of the ICJ proceedings, stated that the Australia is ‘disappointed that Timor-Leste has decided to resume the arbitration against Australia’ and that ‘Australia will strongly defend the arbitration’ (see this DFAT Press Release).