This article examines the consequences of the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) (‘Foreign Relations Act’) for international law. It argues that the arrangements entered into by state, territory and local governments to which the Foreign Relations Act applies can be relevant to international law in three ways. First, they may relate indirectly to Australia’s international legal obligations. Second, they may be a means by which Australian subnational governments claim a role for themselves in governance on global issues. Third, as an exercise of diplomacy, they influence the relations Australia maintains with other nations and the way in which it participates in the international system. As the states and territories in particular become more assertive, including on international issues such as climate change, giving the Commonwealth complete control over such arrangements may impact Australia’s relationship with international law.
The negotiation of the free trade agreement (FTA) between Australia and the United Kingdom promised to integrate trade and climate policies. As a leader of the United Nations Framework Convention on Climate Change (UNFCCC) conference in Glasgow, the UK seemed well-placed to exert pressure on Australia, a country that was yet to embrace a target of net zero emissions by 2050. This article asks whether the FTA achieves this aim. It explains the link between trade liberalisation and climate change, referring to the scale and composition of economic activity and drawing upon examples from energy, agriculture, building and transportation sectors, as well as strategic factors. It provides an original analytical framework to assess the FTA's contributions to climate change goals, pointing to: (1) provisions to strengthen climate commitments, including net zero targets; (2) provisions to facilitate trade and investment in climate-related areas; and (3) provisions relating to enforcement and cooperation. It compares selected initiatives of other FTAs, including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the European Union–Canada Comprehensive Economic and Trade Agreement (CETA), the UK–New Zealand FTA and the Singapore–Australia Green Economy Agreement. It reviews the FTA's negotiating process and its aftermath, including complaints about public participation. The article's conclusion that the FTA makes minimal contribution to climate change mitigation has implications for the broader quest for mutually supportive trade and climate policies, and, now that a net zero target has been legislated by the newly elected Australian Parliament, for the FTA's future implementation.
This article considers the significance of Australia’s federal constitutional structure to its relationship with international law. It focuses specifically on how Australia’s federal system continues to influence Australia’s ability to assume, implement and comply with international obligations, by considering a series of examples in which states and territories have acted inconsistently with those obligations. It argues that understanding the domestic legal framework that governs how a state interacts with international law, as well as the political and historical contexts that inform how that framework actually operates, allows for greater insight into how that state relates to the international legal system.
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