International Law in Australia under the Rudd Government: Some Initial Impressions; Address to the International Law Ass'n (Australian Branch), Annual General Meeting

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Australia has just been through an election campaign in which considerable prominence was given to the ratification of an international treaty, the implications of that treaty for Australia, and the position Australia would take into international negotiations for a successor to the treaty. The treaty was of course of kyoto Protocal and it is more than symbolic that the first official act of the new Rudd Government was to authorise the ratification of the Protocol. The act of finally adopting the kyoto Protocal has a number of immediate ramifications. It means that Australia can attend and participate in the current Bali Climate Change Summit and play its role in the first formal negotiations to the successor treaty to kyolo. It will however also carry with it certain legal obligations that Australia work towards meetings it kyoto emissions targets. These are no longer just aspirational targets but ones which are legally binding and which could carry international legal consequences if Australia fails to meet the mark. It is accordingly significant that the Rudd Government had dispensed with one of the essential conditions for ratification that had been followed for at least the past 15 years in Australia. The absence of domestic implementing legislation for the Kyoto Protocol may prove to be a thorn in the side of Government in future years. Traditionally the advice to the Government from agencies like the Department of Foreign Affairs and Trade or Attorneys-General has been to never ratify a treaty without having implementing legislation in place. This practice has not been followed in the Kyoto ratification due, no doubt, to the urgency associated with Australia being able to attend the Bali Summit as a Kyoto party. The legislative deficiency can be rectified an if, as is being suggested, the Government is keep to have an emissions trading regime in place by 2010, then it would seem essential that eventually there be some form of federal Kyoto law enacted in either 2008 or 2009.

While the Kyoto ratification has grabbed the limelight, there are many other significant international law issues already on the new Government's agenda, or those which may loom as issues during its first term. Labor took a strong stand against the legitimacy of Japan's 'scientific whaling' program when in Opposition and seems intent to meet its election commitments now that it is in office. While enforcement of Australian law prohibiting whaling offshore the Australian Antarctic Territory remains problematic because of Japan's refusal to recognise the legitimacy of Australia's territorial claim, there are options open to Australia to pursue Japan in international courts over whether its actions are consistent with international law. Attorney-General Robert McClelland had indicated that he is commissioning further legal advice to explore the international legal options open to Australia in challenging the continuing Japanese whale bunt.

A related issue is the governance of Antarctica. In recent years Australia has been sharply reminded that its sovereign claim over 42 per cent of the Antarctic continent has little widespread support. In addition to Japan's position on Australian law regulating whaling, Japan has also made clear within other international forums that it does not recognise Australia's Antarctic claim. This is the clearly articulated position of the United States "'US'), Russia, the Netherlands, Germany and India. Australia therefore needs to begin to strategically assess whether it will persist with an Antarctic therefore needs to begin to strategically assess whether it will persist with an Antarctic claim that lacks international recognition, or whether it will think about different management options for Antarctica as a whole. As the price of oil continues to rise as reserves diminish, there is a looming inevitability that Antarctic mineral resources, especially oil and gas, will most likely begin to figure in global calculations. …