International Law, Climate Change and National Security

The Hon Mark Dreyfus QC became Australia’s Attorney in February 2013. He is the Member for Isaacs in Victoria. Mark Dreyfus entered parliament in 2007 and was appointed Cabinet Secretary and Parliamentary Secretary for Climate Change and Energy Efficiency in 2010. In 2013, as Attorney-General Mark Dreyfus appeared before the International Court of Justice in The Hague as Counsel and Advocate for Australia in the case of Whaling in the Antarctic. Taking international law as his theme, on Tuesday 16 July, Mark Dreyfus addressed The Sydney Institute.

INTERNATIONAL LAW, CLIMATE CHANGE AND NATIONAL SECURITY

                                                                        MARK DREYFUS

I acknowledge the traditional owners of the lands on which we meet, and pay my respects to their elders, past and present.

It is a pleasure to be here at The Sydney Institute tonight, and to have the opportunity to talk to you about some of the challenges that we now face as a nation, and the imperative of constructive multilateral engagement to meet those challenges.

Yesterday, I returned from a series of national security meetings in Washington. I also met with the US Special Envoy for Climate Change, Todd Stern. Earlier last week I was at The Hague, where I had the honour of representing Australia in our case against Japan’s so – called ”scientific” whaling program before the International Court of Justice.

So, in making my arguments this evening, I will be drawing in particular on the need for constructive multilateralism in responding to Japan’s unlawful whaling programs, and to the threat of climate change. When I took on the role of Attorney General in February this year, I relinquished my position as Parliamentary Secretary for Climate Change and Energy Efficiency, and with it the role I had played representing Australia at international climate change negotiations. I also relinquished my role as Cabinet Secretary, in which I had worked closely on national security matters for three years in the National Security Committee of the Cabinet.

However, as Attorney General, I now have responsibility for Australia’s security agencies such as ASIO and the AFP, and so my engagement with national security matters and the NSC has continued. It is in that capacity that I will also briefly address some of the national security dimensions of climate change policy.

In many respects, climate change is at a nexus between environmental and national security policy. For this reason, our national response to the threat of climate change vividly illustrates the arguments I will make tonight about the imperative for effective global engagement, and the value of constructive domestic policy debate in meeting the challenges that we face as a nation.

Australia’s case against Japan in the International Court of Justice

Since World War II, Australia has had a history of active and constructive engagement in the global community, especially those institutions that constitute the United Nations system. That system is not without its faults. The United Nations in particular is cumbersome and bureaucratic and expensive to operate. But we should never lose sight of the fact that the United Nations is also a marvellous achievement and manifestation of how far the world has come since it was torn asunder by horrifically brutal and prolonged war – not once, but twice – in the first half of the last century.

One of the areas in which international cooperation is increasingly essential is in the field of environmental protection. While there are environmental challenges of a domestic kind that are entirely within our power as a nation to respond to, our growing understanding of the interconnected nature of the biosphere makes clear that only with global cooperation will we be able to meet the most pressing environmental challenges that we face.

Australia’s case against Japan’s so called “scientific” whaling program in the Antarctic is a case founded in our nation’s respect for international law and international institutions. Australia is seeking to enforce the law in the International Court of Justice, which forms the legal keystone of the United Nations system. It is the highest court in the world, created to resolve differences between nations. There can be no appeal from its rulings.

Australia’s case is significant for a number of reasons, not the least of which is that the only other time Australia has taken a case to the International Court of Justice was in 1974, when Labor Attorney General Lionel Murphy led a successful action to stop French atmospheric nuclear testing in the Pacific. I should note that Australia was named as a respondent in two subsequent cases in the International Court. However, the case against Australia brought by Nauru in 1989 was settled prior to substantive hearings, and the East Timor case, brought by Portugal against Australia in 1991, did not proceed because Indonesia, an indispensable third party to the case, did not appear.

The essence of our current case is that Japan has been subverting the international moratorium on commercial whaling by claiming that its annual whaling program in the Southern Ocean is being carried out for “scientific purposes”, and is therefore lawful under an exception to the moratorium on commercial whaling that came into force in 1987.

Since the moratorium on commercial whaling came into force, Japan has killed over 10,000 whales pursuant to special permits it has issued to itself, allegedly for scientific research. Our case includes a number of elements and a huge quantity of evidence that there is no time to discuss tonight. (For anyone who is interested, that material and the transcript of court proceedings is available on the International Court of Justice website.) But the crux of our argument is that Japan has effectively dressed its unlawful continuation of commercial whaling in the lab coat of science, and that this ongoing slaughter, in breach of legal obligations to which Japan agreed to be bound, must come to an end.

It is important to emphasise that last point. Japan agreed, as a sovereign nation, to be bound by the moratorium on commercial whaling. It could have objected to that moratorium, as some other nations did, and not been bound by it. However, Japan decided that it was in its national interest to agree to the moratorium. It is for this reason that allegations that our case is founded in cultural imperialism, and arguments about the moral equivalence of our kangaroo and beef industries, are unfounded and entirely irrelevant to the legal action. The animals that Australians eat are not protected by international environmental treaties, and Australia has certainly not agreed to be bound by international agreements not to kill them.

In responding to allegations of cultural imperialism raised by Japan’s counsel, I said last week, in court, that: This case is not about civilising missions or whether the Australian government or the Australian public like or dislike the consumption of whale meat. Nor is this case about Australia’s strongly held policy position of opposing commercial whaling. This case is about the failure of one country to comply with its international legal obligations not to conduct commercial whaling, an obligation which that country accepted voluntarily but then immediately began to subvert.

Specifically, this case is about Japan’s failure to abide by its clear obligations under the Convention not to conduct any form of commercial whaling and, I will repeat, the unlawful misuse of the scientific exception under Article VIII of the Convention as a means of continuing its commercial whaling activities.

Some within Australia have raised concerns that this case may seriously damage our relationship with Japan. This is a legitimate concern, but I am confident that it is not well founded. In discussing our case publicly I have always emphasised that Australia and Japan have a deep and lasting friendship, and cooperate on a wide range of important issues.

It is as friends that we have come to the International Court to resolve a longstanding difference that we have been unable to resolve through over 20 years of diplomacy. That being said, I must tell you that I was just a little surprised at the robust nature of the advocacy before the International Court. I have attended numerous diplomatic conferences and events, and this was certainly not one of them. But of course, we took on this case with the intention of winning it, and I must say that it was not only an honour, but a pleasure to briefly step back into my previous profession as an advocate, and to prosecute Australia’s case.

However, in closing Australia’s arguments last week, I was also explicit in noting to the Court that the vigorousness of our legal exchanges with Japan are an inevitable – and indeed a desirable – aspect of litigation. Robust advocacy serves the important purpose of rigorously testing the evidence and the arguments that are presented to the Court. I made it clear again to the Court that Japan is, notwithstanding our dispute over whaling, a good friend of Australia, and that I hoped that the heat of our sometimes sharp exchanges would also produce some light, by which the Court would have clearer view of the facts and legal issues before it for determination.

In closing our final arguments last week, I also said: Developing proper and more detailed models for Antarctic ecosystems that will allow us to better understand whales and the environment in which they live is a huge task that is beyond the reach of any one nation’s research program. On behalf of the Australian government and the Australian people, I would welcome partnership with other countries, including Japan, in a new era of collaborative non-lethal whale science.

The Court has an opportunity to assist in creating the conditions in which that collective action can occur. This will strengthen the Convention and also strengthen respect for the scientific process and for international law. Japan will conclude its arguments at 11.30 am in the Hague today, which is in about an hour from now. I do hope that Japan will respond positively to the overtures I made. It will then be in the hands of the sixteen judges of the International Court to consider the arguments that both nations have put to them. I think that virtually all Australians hope that the Court will accept our arguments, and issue a judgment that brings Japan’s so-called scientific whaling to an end.

Some of our political opponents have asked what provision the Australian government has made to enforce the judgment of the International Court, should Australia be successful. This question is premised on a misunderstanding of the international system, and of the nature of our dispute with Japan. Our dispute with Japan is over the proper interpretation and application of obligations under the International Convention on the Regulation of Whaling.

Disagreements about the proper meaning and application of laws is an aspect of all legal systems, and a primary function of courts is to authoritatively resolve such disagreements. I have no doubt that Japan will abide by the decision of the International Court, just as Australia will.

Over two million whales were killed during the long period of commercial whaling last century, and in the century before. Fortunately, in 1946 the community of nations recognised the need for a binding legal convention to protect and manage the world’s whale stocks. In the decades since, our collective efforts have given us a second chance to conserve whale species that humanity once hunted to the brink of extinction.

In our legal action, Australia is seeking to hold Japan to international legal obligations for whale conservation that took decades of international negotiation to craft. If we are successful in our action, Australia’s case will also have the benefit of upholding the integrity of the Convention, which in turn will strengthen the international rule of law and the foundations of collective action by and among nation states. I have no doubt that, beyond the immediate outcome of the case, the strengthening of the international rule of law is very much in our national interest.

Apart from its immediacy and significance to Australians, I have discussed our case against Japan this evening because I feel that the case validates Australia’s long tradition of multilateral engagement and support for international law and institutions. There is one final point that I want to make about this case, and it relates to our domestic politics. I think that the efforts of Australia to promote whale conservation, of which our case against Japan is a part, provides an example of what Australia can achieve when our nation works constructively to resolve difficult issues.

This does not mean that there have not been strong differences of opinion and robust debate within Australia about how best to pursue the objective of whale conservation, and more recently, how to bring Japan’s so-called scientific whaling to an end. For example, the Greens Party have at times called for the Australian Navy to intervene in the Southern Ocean, while the Opposition have argued that an Australian Customs vessel should be sent there each summer to observe.

Some academics suggested that we should seek an interlocutory injunction from the International Court of Justice. All reasonable suggestions were considered and debated through our democratic processes, and from the crucible of that contest of ideas a considered policy has been shaped, the efficacy of which is now being tested.

Climate change, national security and policy debate in Australia

While stopping the unlawful slaughter of whales in the Southern Ocean is an important environmental matter that many Australians feel strongly about, it pales before the complexity, scale and challenge of the threat posed by climate change. As a member of our parliament and an Australian who believes deeply in the value of the contest of ideas as a foundation of our nation’s strength, I am truly disappointed that in the context of the debate about climate change, the approach to opposition embraced by the Liberal Party under Tony Abbott has been almost unremittingly destructive of the genuine and productive policy debate that Australia needs to engage in. Mr Abbott’s inane comments yesterday, seeking to disparage emissions trading as a “so-called market” that “deals in an invisible substance” provides a graphic, but sadly typical, example of the Opposition’s often absurd approach to this critically important policy challenge.

In playing a destructive, dishonest and opportunistic kind of politics with a policy challenge of critical importance to our nation, Mr Abbott and the Opposition have worked against our national interest for their political self-interest. I know that is a serious allegation to make, and in making it I am conscious of not wanting to become a part of the very problem of destructive politics that I am describing. So I will now discuss in a little more detail the nature of the debate that we are having about climate change in Australia, the intersection between climate change and national security, and the way in which I truly hope that political debate on this critical issue will be carried out in our nation in the future.

Notwithstanding the ebb and flow of the language in the debate on climate change in recent years, it is my view that climate change remains the most critical long-term environmental, economic and national security challenge that we face as a nation, and as a global community. For decades, scientists have been warning that rising concentrations of carbon dioxide and other greenhouse gases in the atmosphere are contributing to climate change.

I will not detail now the terrifying predictions of a clear consensus of the world’s scientists regarding what will happen to our nation and our planet in the coming decades if we do not act decisively – and urgently – to reduce global carbon dioxide emissions. It is sufficient to say that global temperatures will continue to increase, sea levels will rise further, ocean acidity will increase, rainfall patterns will change and extreme weather like cyclones, storms and floods will become more severe.

We are already seeing the impacts of climate change in Australia. The 2003 Canberra bushfires and the 2009 bushfires in Victoria, were of almost unprecedented intensity, and behaved in ways that our emergency services had very little experience of. The Black Saturday fires in particular resulted in the devastation of many communities and the loss of 173 lives. Catastrophic floods have devastated parts of Queensland twice in just the last three years, once again with a shocking loss of life. Writing about the last summer, the Climate Commission concluded that: the Australian summer over 2012 and 2013 has been defined by extreme weather events across much of the continent, including record-breaking heat, severe bushfires, extreme rainfall and damaging flooding.

Extreme heat waves and catastrophic bushfire conditions during the Angry Summer [as the Commission called it] were made worse by climate change. The Commission also stated that: All weather, including extreme weather events is influenced by climate change. All extreme weather events are now occurring in a climate system that is warmer and moister than it was 50 years ago. This influences the nature, impact and intensity of extreme weather events. I could go on. But the point I am making is that climate change is not, as some denialists claim, a misplaced concern about the weather in a hundred years. It is already affecting us now. It is already costing Australian lives. And if we do not work to address this challenge as a matter or urgency, the impacts we are already experiencing are very likely to intensify, and will exact an increasingly horrendous, economic, social, environmental and human cost.

The increasing prevalence of extreme weather events is one of the reasons why responding to climate change is critical to our long term national security. But climate change has national security implications that go well beyond extreme weather impacts on Australia. While in Washington last week I discussed a range of national security matters with my counterparts, US Attorney General Eric Holder and the Secretary of the Department of Homeland Security, Janet Napolitano. I also met with FBI Director Robert Mueller, CIA Deputy Director Michael Morell, with deputy directors of the Office of the Director of National Intelligence and the National Security Agency, and received detailed security briefings from senior intelligence analysts from these agencies.

Needless to say, it was a very busy two days. As I mentioned, I also met with Climate Change Envoy, Todd Stern. Of course, I cannot go into the details of all that was discussed at those meetings. But you will be unsurprised to hear that in general terms, some of the key national security questions that we focussed on were the very immediate threats of terrorism, both home-grown and international, cybercrime, and cyber espionage.

There is no greater responsibility for a government than the protection of national security, and the issues which I discussed with my American counterparts were recently identified as emerging priorities in our government’s National Security Strategy. However, in addition to the need to respond to these very real and immediate threats, our national security also requires that we look ahead, and work proactively and strategically to respond to – and if possible, to mitigate – threats that are on our horizon.

The fact that climate change is a critical national and global security matter is not in doubt, and it was also a matter discussed at my meetings in Washington. The threat to national and international security posed by climate change is not an argument that originates in environmental groups or green political parties. For over a decade now a mounting volume of reports from eminent, independent and pragmatic organisations such as the Council on Foreign Relations, the US National Research Council, the Australian Strategic Policy Institute and the Lowy Institute for International Policy have highlighted the significant potential for climate change to disrupt the geostrategic balance in way that will significantly threaten global security.

No one would describe the staff of these organisations as environmental activists, hippies or tree-huggers. More significantly, in it its January 2010 edition of Global Strategic Trends, the United Kingdom’s Ministry of Defence warned that climate change will amplify existing social, political and resource stresses, shifting the tipping point at which conflict ignites, rather than directly causing it.

A similar warning was sounded by the US Department of Defence its February 2010 Quadrennial Defence Review, in which it stated that climate change “will play a significant role in shaping the future security environment”. The Pentagon analysts went on to argue that, while climate change alone does not cause conflict, it may act as an accelerant of instability or conflict, placing a burden to respond on civilian institutions and militaries around the world.

Along similar lines, President Obama’s National Security Advisor, Tom Donilon, spoke earlier this year about the intersection between energy, climate change and national security policy, stating that the fact that the environmental impacts of climate change present a national security challenge has been clear to this Administration from the outset. The President’s National Security Strategy recognises in no uncertain terms that,

The danger from climate change is real, urgent, and severe. The change wrought by a warming planet will lead to new conflicts over refugees and resources; new suffering from drought and famine; catastrophic natural disasters; and the degradation of land across the globe.

It will come as no surprise that Australian intelligence and security agencies have come to similar conclusions to those of our closest strategic allies. In an indication of how fast thinking is changing in this space, the current Defence White Paper takes a very different approach to that of the 2009 White Paper, which acknowledged for the first time climate change was a potential security risk, but argued that the large-scale strategic consequences of climate change were unlikely to be felt before 2030.

In contrast, in its discussion of the potential impact on Australia of global food, water and other natural resource insecurity, the 2013 Defence White Paper states that the risks associated with resource insecurity may be exacerbated by changes in the global climate system. The inundation of low-lying regions, more frequent and severe natural disasters and shifts in rainfall patterns would lead to loss of agricultural production in some areas and potentially large-scale human migration.

The combination of the effects of climate change and resource pressures will increase the risk of insecurity and conflict, particularly internal instability in fragile states, many of which have increasingly large populations in areas that will be affected by climate change. These factors, taken together, point to an increasing demand for humanitarian assistance, disaster relief and stabilisation operations over coming decades.

I know that there will be some in this audience who continue to doubt the science of climate change, whether it is accepting the fact our climate is changing at all, or the more recent fall-back position in the face of unequivocal proof that it is, that the changes to our climate have nothing to do with anthropogenic carbon emissions. In his speech last month announcing his new policy on climate change, President Obama said that we don’t have time for a meeting of the Flat Earth Society. Sticking your head in the sand might make you feel safer, but it’s not going to protect you from the coming storm. And ultimately, we will be judged as a people, and as a society, and as a country on where we go from here.

I have often felt the frustration expressed by the President, and I agree that in many respects it is a waste of valuable time debating whether we in fact face a problem, when our energies should be devoted to solving that problem in the most efficient and effective way possible. Others have argued that while they accept the reality of climate change and the dangers it poses, Australia should just wait and see what the rest of the world does before taking action. But as the 12th largest economy and the 15th largest polluter of more than 190 nations, as well as the largest polluter per capita amongst the advanced economies, Australia has a duty to do more than just sit back and do nothing while the rest of the world takes action.

Not only that, but if the global economy decarbonises as it must this century, it is very much in our economic interest to engage proactively in the transformation required. More the point, much of the world is already acting to transition their economies through carbon pricing. Carbon markets are now established in the EU, South Korea, California and Quebec, and in May this year the World Bank estimated that with these current and emerging schemes, carbon pricing could be expected to apply in countries with almost half of global emissions.

Last month China launched its first carbon emissions trading scheme in Shenzhen, a business hub with a population of around 10 million and economic output of over A$150 billion. And this year China will commence another six emissions trading schemes in four cities and two provinces, including Beijing, Tianjin and Shanghai, with the aim of moving to a national emissions trading scheme after 2015.

China’s pilot schemes are expected to represent the equivalent of the second largest emissions trading market in the world – larger than those in California, Australia and New Zealand combined. The Opposition’s claims – repeated more than 50 times – that China would never introduce a carbon pricing or emissions trading scheme, are once again shown to be either falsehoods, or errors founded on an inept misunderstanding about the threat that climate change poses and the reality that responsible governments around the world are already responding to it.

And last month, with a Republican controlled Congress continuing to block a national emissions trading scheme, President Obama used his executive power to commence a new Climate Action Plan. Like Australia’s Clean Energy Future plan, the Climate Action Plan includes measures to support renewables, energy efficiency and long-term investment in clean energy innovation.

So what has our government done to meet the challenge of climate change? I doubt there is anyone in this country unaware that we placed a price on carbon. However, the Clean Energy Future plan, introduced by our government two years ago, does much more than this, and it is already working reducing Australia’s greenhouse gas emissions while ensuring that our economy continues to grow. Since 1 July 2012, when carbon pricing came into effect:

• Emissions in the National Electricity Market have been reduced by 7.4 per cent;

• Renewable energy generation has increased by almost 30 per cent;

• The economy continues to grow;

• More than 150,000 new jobs have been created.

And today, the government announced that we will now be moving from a fixed price to a floating price one year ahead of schedule. This is a responsible measure that responds to structural changes in the global economy, and continues with the core of our economically responsible and effective response to climate change – pricing carbon. It is deeply disappointing to me that rather than responding to the threat of climate change with a robust debate founded on credible alternative policies, our political opponents have responded with a dishonest scare campaign, founded in political opportunism. And while the Opposition do claim to have a policy response to climate change, it is a farce of a policy that no reputable scientist or economist in our country will endorse.

Pricing carbon harnesses the power, flexibility and creativity of market mechanisms to ensure that carbon pollution is reduced in the most effective and economically responsible way. In contrast, Mr Abbott’s policy is little more than hollow slogan, concocted on the back of a proverbial envelope.

In essence, the so-called “Direct Action” plan proposes a system for enormously expensive taxpayer subsidies to be handed to polluting companies in the hope they will reduce their carbon emissions. It is a policy that has been widely condemned by economists, scientists and policymakers as one of the poorest examples of public policy formulation in this country. It is a high cost, economically irresponsible, fundamentally inequitable and utterly ineffective response to the challenge of climate change.

I am concerned that Mr Abbott and Mr Hunt know, just as well as former Liberal leaders Malcolm Turnbull and John Hewson do, that the policy is a farce and should be abandoned. But the Opposition continue to argue for it. I will leave it to you to come to your own conclusions as to why that is, and whether it serves our national interest to be having a debate of the kind that we are having, rather than a genuine debate about the most effective and responsible path to emissions reduction.

An effective response to climate change requires a constructive and robust domestic debate, and effective global action. Australia should be working constructively with the international community, directly with our allies and though all of the relevant multilateral institutions with which we are engaged, to build the international consensus necessary to meet this truly global challenge.

And while there have been many setbacks in the vital work of meeting this challenge at a global level, I still carry a sense of optimism. Because having participated in a number of international meetings on climate change, I am greatly heartened by the fact that people from all around the world are working with passion and with determination to respond to this threat. I remain hopeful that as a global community, increasingly aware of our shared needs, values and responsibility for our collective security, we will find a way to meet this challenge.

Conclusion

Change is always more difficult than simply managing the status quo. But I do not accept the conservative view that catastrophe is the only legitimate impetus to change. I believe it is incumbent on those who serve the Australian people in public office to always look at how we can better realise the values we hold dear. This is the essence of the progressive ethos. We do not rest on our laurels, content to manage the status quo until intolerable pressure – or disaster – demands that we react.

I am proud to be a member of a government that has had the initiative, the courage and the capacity to change our nation, and to change it for the better. Over the last three years I have been concerned to see that Mr Abbott’s approach to opposition appears to be geared to achieve only one thing – to tear the government of Australia down. But the job of an Opposition is not, as Mr Abbott claims, simply to reactively oppose almost every major policy the government proposes. The job of the political opposition is to engage constructively in the debate about the future of our country.

And if the policies of the government are being opposed, to do so without fear-mongering demagoguery, but to instead engage in policy debate by offering the Australian people a better alternative. But much of Mr Abbott’s strategy is based on a destructive rejection of government policy for the sake of the political advantage he feels that gives him, even if that requires a calculated attacks on good policies with a barrage of slogans founded on deceit. This approach to the vitally important role of political Opposition does not further the national interest. It undermines it. And I believe that the Australian people are increasingly recognising that.

So let me be clear. I welcome political debate. A robust conversation between those with differing viewpoints creates the energy that drives a vibrant and creative democracy. Viewed through one eye the world has no depth, but with the parallax created by differing viewpoints, we perceive the world in three dimensions, and our nation is made richer – and wiser – for that.

The strength of our democracy rests in part in the space we create for different viewpoints, so that the best ideas for our nation can be rigorously tested – like arguments in a court room. And the best of those ideas survive to become the policies that will then be considered and decided on by the sovereign people of Australia. But we cannot have a productive contest of ideas if no alternatives are put forward, or if the contest of ideas is undermined by obfuscation and distortions that obscure, rather than promote informed debate.

We are in an election year, and I would urge the Opposition to enter the policy arena and to engage the Government in a genuine contest of ideas. The space for genuine debate on policy is one of the great strengths of democratic nations such as ours, and it gives the Australian people a genuine opportunity to choose the best path for our nation. I welcome such a debate in the months ahead.