Senate Foreign Affairs, Defence and Trade Legislation Committee [Part 2], , 59:13 to 1:09:56
Examination of dispute settlement mechanisms and the link to the Australia-EU Framework Agreement.
Topics: International law, Trade policy, Human rights
Speakers: Senator Matthew Canavan, Speaker 4, George Mina, Cathy Raper, Unknown Speaker, Interjection, Senator Raff Ciccone
>> You you did say earlier that that that a breach of this agreement would be any act or emission which materially defeats the object and purpose of the Paris agreement. It's a direct quote from the text. Is carbon neutrality a balance between uh uh uh emissions and offsets or net zero any of those concepts an object or purpose of the Paris
Well, this would be a matter for um a dispute panel should there ever be one taken to interpret the provisions of the agreement. >> Uh our assessment is that this language sets a very high bar um and does not include um what a country um uh commits to under its NDC it determined contribution but goes to a much higher standard um relating to the to the Paris agreement. But its precise terms would have to be determined by a uh dispute settlement panel should this occasion ever arise.
>> I'm just struggling that because earlier you you have I think claimed tell me if I'm wrong but I think you've claimed that that this agreement doesn't lock us into net zero. I dispute that but that's but you can't seem to tell me uh whether net zero or carbon neutrality or any concept like it is a object or purpose of the Paris agreement which you have also said must not be defeated by any actor or emission in this uh by parties to this agreement.
>> So the Paris agreement allows each party to set its own NDC. Um we've had several NDCs as the Australian government over the years. Our first NDC did not include net zero. >> by definition an NDC might be net zero, might not be net zero.
>> They're two different questions though. There's the Yes, there's and there's very few specific obligations under the Paris agreement, but yes, one of them is to set our parties must set a national determined contribution. I don't dispute that and that I agree with you that that NDC does not have to be net zero. But the agreement doesn't just this agreement doesn't just refer to the NDC's. It doesn't just refer to the measurements that are another obligation that must be done under the Paris agreement. This agreement refers to the objects and purposes of the Paris agreement. And so I ask again, is is net zero or any concept like it an object and per or purpose of the Paris
agreement? And I guess I was trying to explain, senator, that because the Paris agreement allows the flexibility for a party to set its own NDC and it may or may not include net zero. Um, it does not go to the purpose and object of the
>> I'm obviously not going to get an answer, but I if you can't answer that question, I don't understand how you could conclude definitively that this agreement does not lock us into net zero because you can't tell me whether net zero is an object or purpose of the Paris agreement.
>> With respect with respect, Senator, I think Mr. Robert did answer the question directly uh which is to say we have flexibility as to whether the NDC is or is not net zero under the Paris agreement
>> and I made clear the NDC is very different than the object or purpose of the Paris agreement
>> correct
>> right so >> which is precisely the point Senator >> I ask a question and then you go talk about an issue that's not related to my question so you're not answering the question is the what my question relates to the objects and purposes
>> let the witness Sarah, stop talking to each [sighs and gasps] other. Mr. Mayor, did you want to conclude your answer,
please? >> That is precisely why we've reaffirmed that we do have that flexibility, Senator, under Paris and therefore under this agreement
>> does,
>> as we've said before, this simply reaffirms and that test, as Miss Holmes and M. Rabber have already said of of of breaching the object and purpose is a very high bar indeed as our as our assessment. It is. So it does not relate to the level at which one sets the NDC
>> is an object of the Paris agreement uh a a collective goal to balance global emissions in the second half of this
Well, Senator again asking us a hypothetical and b as miss raper said something that would require litigation and we're not in a position to >> to start to go through all of these scenarios but we are >> we are making it clear this is a very high bar. We're [clears throat] also making clear that the counterfactual the counterfactual that is we don't uh uh either enter into this FTA or we uh we we we do meet this very high bar and and and breach it. The the enforcement consequences are very simple and contained to this FTA. Uh it would require it would it would do nothing to our position but deny us the economic
benefits of this deal. Yeah, but yeah, the key conclusion you mentioned earlier is you you can't tell us. We have to wait to see what the dispute settlement process would find and to that process uh there see I just wanted to understand exactly how this works. um the powers to take measures from any party um in the event of of a breach or contravention. going to article 25.5 and um the there article 25 52 says that a party can take appropriate measures uh as referred to in article 574 which I think might relate to disputes or some such. I'm uh just jumping around here. um uh if there's a special urgency as defined or there's one only one other thing listed an act or emission of the other party that materially defeats the object and purpose of the Paris agreement. Can you explain to me what measures a party can take in the event of um one of the parties acting in a way that materially defeats the object and purpose of the Paris agreement?
Well, this provision, Senator, then refers to a different agreement, the framework agreement between Australia and the European Union that came into force, I think around about 2018. Um, and this sets out its own procedures for um dealing with disagreements under that different agreement to the FTA.
>> Right. So, okay. So if if if the EU accuses us of doing something to defeat the object and purpose of the Paris agreement, what are the measures that they could take under
>> We'd have to refer to the article that's referenced of the framework agreement.
for that, too.
>> Um no, because it's not a trade agreement. Um but it does set out procedures for state-to-state um resolution of any um difference of opinion under that agreement.
>> Okay. uh who's responsible for this framework agreement in the government?
>> Well, Senator, that um agreement was uh negotiated several years ago. We can uh uh perhaps uh uh Mr. Mr. McInnes has some background, but uh this relates to uh uh an a political level agreement between the European Union and Australia on uh some some basic and foundational issues including on human rights and and so forth. I'm not sure if you senator.
So, as Mr. said the um article 25.5 um of the EU Australia FTA then refers to the Australia EU framework agreement which is a high level agreement um which uh broadly would be sits with our um our bilateral area um but specifically refers to um uh clarifying that for the purposes of that agreement Um the EUFTA is um considered uh one of the agreements that qualifies as a specific agreement under article 55.1. [clears throat] Then in those cases that are referred to in 25.52 uh the relevant provisions of article 57 of the framework agreement uh can be invoked. they relate to matters of special urgency um and simply then refer back to the agreements that may be relevant. So it's really a a mechanism to clearly link the two agreements uh the framework agreement and the specific references there back to the um FTA. The the mechanisms under the framework agreement for resolving disputes are not as um comprehensive as the mechanisms under the free trade And I might also just in
>> so this is a sorry
>> I was just going to say in that same um chapter that you were referring to it's also relevant article 25.7 around um no direct effect of the FTA. Um, nothing in this agreement shall be construed as conferring rights or imposing obligations on persons other than the rights or obligations created between the parties under public international law, nor as permitting this agreement to be directly invoked in a party's legal system. So, they're just elements to the mechanism by which uh obligations or commitments can be challenged and enforced. As I said earlier, it's a state-to-state only mechanism that would then be implemented in the free trade agreement. um and and that I think article 25.5 is simply linking that to the framework agreement and article 25.7 is making clear that it is um not creating a direct effect or giving any direct rights for uh any other body or group to um uh directly enforce the uh obligations in the free trade agreement. So only the mechanism under the dispute settlement chapter of the free trade agreement would be the mechanism that would be invoked if um there was considered to be a breach including in relation to materially defeat the object and purpose of the Paris agreement.