The Abbott government cares little for our sovereignty

Image source: www.dfat.gov.au

Sovereignty is the quality of having power over a geographical area. Traditionally, this has referred to governments being able to exercise political power and control over their jurisdictions.

In the recent election campaign, Tony Abbott made much of the supposed threat to our sovereignty from people seeking asylum in Australia. The Abbott government even went as far as to name its refugee policy "operation sovereign borders" and militarise the operation by appointing a 3-star general to oversee it.

However, while desperate people seeking asylum on leaky fishing boats are characterised as a threat to our sovereignty worthy of a military response, a true threat to Australia's sovereignty has quietly become government policy.

On the eve of the last election the Coalition quietly released its trade policy [PDF] which significantly changed the previous government's approach to investor state dispute settlements (ISDS) in trade treaties. ISDS' are clauses which allow multinational corporations to sue national governments that are signatories to a treaty for passing laws that are harmful to the interests of these corporations. These cases are not heard in national courts but in tribunals that are often presided over by representatives of multinational corporations - hardly independent arbiters.

This effectively allows multinational corporations to over-ride government's powers effect legislation without the threat of significant legal action. Already, Australia is being sued in Hong Kong by tobacco companies for passing a law to enforce  plain packaging of cigarettes. This law was passed by both houses of the Australian parliament and confirmed by the High Court, however, the ISDS in a bilateral treaty now has the potential to penalise the Australian Government for performing its democratic function.

The previous government rejected the use of ISDS' as not being in the national interest, however, the Abbott Government's trade policy remains open to the use of ISDS'. The Abbott Government has stated that it is keen to conclude free-trade agreements, including the Trans-Pacific Partnership (TPP) - a treaty negotiated in secret that contains ISDS'.

Leaked sections of the TPP indicate it will potentially undermine fair access to copyright material and limit environmental protection laws, public health measures and the Pharmaceutical Benefits Scheme. Governments will be limited to legislate in these areas by the threat of serious financial penalties - even if it is in the national interest to legislate.

At the recent APEC conference Malaysian Prime Minister Razak characterised the TPP as:

"impinge[ing] fundamentally the sovereign right of the country [Malaysia] to make regulation and policy''.

This curtailment of a government's sovereign power represents not only a threat to democracy, but a fundamental shift in political power from the citizenry to multinational organisations.

When the Coalition said that 'Australia was open for business' what they really meant was that 'Australian sovereignty was for sale'.

The rule of force undermines justice

The mythologising of the recent killing of Osama bin Laden has already begun with the Right (particularly in America) already claiming that the Bush-era policies (unfortunately carried over into the Obama administration) of torture, extra-judicial killings and using the rule of force over that of law have been vindicated. However, the actions by the US to assassinate bin Laden are likely to be more counterproductive to the War on Terror as they undermine the rule of law and give succor to those who would prefer an anarchic international system ruled by force and supported by perpetual conflict. This is precisely the sort of world in which the poisonous ideas of Osama bin Laden and his ilk gain credence and following.

Although there are many valid criticisms that can be leveled at the United Nations (and in particular the archaic United Nations Security Council system), it at least provides the legal framework for the operation of international security. Unfortunately the US-led war on terror has done much to undermine this system - particularly with the invasions of Iraq and Afghanistan.

It has been argued by critics of the invasion of Afghanistan, that the United Nations Security Council (UNSC) never authorised the use of force in Afghanistan. The two instruments that are widely thought to have authorised the use of force are:

1. UNSC Resolution 1368 which firstly re-affirms the right to self-defence in Article 51 of the UN charter and states in clause 3:

"[The UNSC] Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable;"

2. UNSC Resolution 1373 imposed a duty of Member States to:

"Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;"

Proponents of the invasion argue that, although the resolutions do not specifically authorise the use of military force, the harbouring of Osama bin Laden by the Taliban constituted an illegal act for which they should be held accountable. Furthermore, the right to self-defence from terrorist act would include bringing to justice the perpetrators of terrorist acts and those who provide material support to those perpetrators. However, while proponents of this argument are happy to apply it to the situation in Afghanistan, they are loathe to apply it universally.

The view that sovereign nations habouring terrorists provides a blank cheque to use military force is also held out as the reason for the ability of US forces to raid the compound in which Osama bin Laden was hiding. This action has even further damaged strained relations between Pakistan and the US which ultimately undermines the ostensible aims of the War on Terror to make the world safer. An unstable Pakistan would be disastrous, which is probably why the US has made little noise about the fact that bin Laden had been hiding in relative plain sight in Pakistan for anything up to ten years.

The problem of the raid is that its aim was not to arrest bin Laden, but to assassinate him. An arrest operation would likely have garnered less criticism - particularly if that arrest had led to a trial, either in the US or preferably before the International Criminal Court (although the US is not a signatory to the ICC). This would have sent the message that there are international crimes for which a person may be arrested and tried, rather than the message that the US can go into any country and assassinate whomsoever it pleases. One could imagine that if other countries pursued the same policies there would be uproar - and an ultimately unworkable and unstable international system.

This is why the rule of law must be applied universally. The trial before a competent court with access to a defense counsel gives authority to the decision to arrest and supports a workable international framework for dealing with international criminals. Although the ICC would be preferable, an American court would have sufficed in this instance and the potential breach of international law (although it could be argued that UNSC Resolution 1368 authorised the action) could be remedied. There has been precedent for this in the past.

The bringing to trial of international war criminals sends a message to people who would commit these types of crimes that they will be arrested and bought before the court as a common criminal, and not assassinated and martyred by a State which holds as little regard for the law as they do.

TPP turning ISPs into copyright police

The 6th round of negotiations for the so-called Trans-Pacific Partnership (TPP) are set to occur from 28th March 2011 - and if we were to rely on DFAT's website the TPP treaty is merely to:

"develop a high-quality, comprehensive 21st century Free Trade Agreement (FTA) that increases economic integration in the Asia-Pacific region, particularly as membership expands over time."

This all sounds very reasonable but what it doesn't mention is that, amongst other things, the TPP has a significant section devoted to copyright.

The US Trade Representative to the treaty negotiations has put forward a number of proposals which would "harmonise IPR provisions strictly upwards", these include:

• Banning parallel imports
• Increasing the term of copyright
• Criminalising Digital Rights Managment (DRM) circumvention - even when there is no copyright infringement
• Imposing ISP liability for the infringement of their users, including providing incentives for ISPs to become copyright cops for the content industry
• Requiring ISPs to identify users at the behest of the content industry
• Expanding the scope of what is patentable and limit objections to patents

This, of course, reads like a wish-list of the content industry and it would probably not surprise anyone to know that there is an extremely close relationship between the content industry and the US government.

Furthermore, the TPP contains provisions for "dispute resolutions" which means that countries that are not compliant with the increased scope of the IP provisions can be fined.

So what does this mean for Australia?

Firstly, the TPP IP provisions exceed those in the AUSFTA and even further than the completed-but-not-in-force ACTA treaty, especially the "exceptions" provisions for DRM and the expanded scope for patentable material.

Secondly, it will impose a regime of ISP copyright enforcement that goes much further than the suggested model put forward by Emmet, J in the AFACT v iiNet case. The Internet Industry Association (IIA) has already stated that it is prepared to draft a code to address the uncertainty regarding the steps that ISPs should take in responding to allegations of copyright infringement by their users. However, the imposition of the TPP will make this attempt at industry self-regulation redundant by substituting an industry negotiated code, which will likely contain at least some consumer protections, to a legislative regime which does not. Furthermore, a country is prevented from implementing more consumer friendly provisions by the "dispute resolution" clauses that may result in the country being fined.

So there is a real danger that the TPP will further tip the balance in favour of big content and away from consumers, but then this seems to be the modus operandi  of these FTAs and is hardly surprising. The irony is that the more big content punishes consumers and refuses to provide content in a way that their customers want, the more their customers will pirate their content using the ever-more sophisticated tools available to find and download content and to hide their tracks while doing so - making a legislative regime ineffective.

As IIA president Peter Coroneous said recently:

"Market failure remains a core contributor to the infringement problem. If users have access to more and better content, when, where and in the form they choose to consume it, and at a realistic price, we're quite confident the motivation for infringement will decline. We certainly don't condone the infringement of copyright - but internet users need attractive, lawful alternatives if we are to see positive behavioural change. There's no reason why Australia shouldn't be leading the way here."

And maybe that is the area in which Australia can lead the way, rather than continuing to implement an ever-more draconian legislative regime under the guise of "free trade".

The end of history comes when it's revised: Neo-cons claim credit for democracy in the Middle East

Its been interesting to see the scrambling of the neo-cons as they try to make sense of the current situations in the Middle East and what this means for their ideological project. In a op-ed for the Washington Post, Elliot Abrams starts the neo-con revisionism of the revolutions in Egypt and Tunisia.

All ideologies engage in this sort of historical revisionism - but the neo-con ideology is virtually built on it, you only have to read Fukoyama's "End of History" tripe to see it in full action. So with this in mind, its unsurprising to see Abrams touting the uprisings in Egypt and Tunisia as a vindication for the Bush "freedom project" and a condemnation of the Obama administration's move towards a more realist foreign policy.

In his response to Abrams' selective sampling of history, Frank Kaplan, completely debunks the thesis that the Bush "freedom project" is in any way responsible for the current events in the Middle East. One of the points that is made by Kaplan (and the one that's the focus of this post) is that its not just a matter of supporting a vague notion of "freedom" that encourages transition to a democratic State, but having the institutions of democracy.

"...the annals of history show that democracy is hard to achieve and even harder to sustain; that it requires not just the expression of a human desires, but also the creation of political entities and social institutions—courts, legislatures, organized interest groups, and a free press—that can mediate conflicting desires with an aura of legitimacy and thus with minimal violence."

And it is this point that the neo-cons consistently fail to understand. I think that this policy blindness actually comes from the neo-con ideology itself - that to the neo-conservative these institutions are not necessary and are even a hinderance to their view of a liberal democracy. Their obsession with devolving social institutions into mere functional elements of the free market economy - such as the privatisation of education, medicine, removal of any sort of social safety net and deregulation of the economy belies the neo-con view that social/political institutions are merely economic ones.

The privatisation of Iraq is a case in point¹. The Coalition Provisional Authority dismantled any social/political institutions under the guise of removing Ba'athist elements and reoriented the entire Iraqi economy to a neo-con view of economic liberalism - privatise everything and remove any regulation of foreign investment (including allowing foreign entities to remove all profits from the country). These sets of orders have virtually made the Iraqi government and people completely subservient to foreign transnationals - hardly democratic institutions. It is interesting to note that one of the only laws to survive Saddam's regime is the one banning trade unions - organised labour is obviously bad for neo-con "freedom" as it may lead to people forming a social institution that could challenge their economic orthodoxy.

So it's not surprising  to see the neo-cons back to their old tricks of historic revisionism to suit their own ideological views. One would imagine that the rise of any new autocratic regimes from the current turmoil in the Middle East with any veneer of democracy would suffice for Bush's "freedom project" to be vindicated - so long as they're open for business.