Time to put on the 3-D glasses: is there a need to expand JSCOT's mandate to cover 'instruments of less than treaty status'?

• Author: Byrnes, Andrew
• Position: Australia Joint Standing Committee on Treaties

Abstract

Many significant agreements between Australia and other countries are contained in instruments which are neither designated as nor intended to be treaties binding as a matter of international law. While some of these agreements may in fact be treaties, most are arrangements that are binding only as a matter of political or moral obligation, and their efficacy results from the shared interests of the countries which have concluded them.

This article addresses the current state of Parliamentary and public access to the texts of formal arrangements between Australia and other countries that are of 'less than treaty status'. It argues that many of these arrangements are of considerable practical and political significance to the relations between Australia and the other countries which are parties to those agreements. At present the publication of such documents is sporadic and unsystematic, and the text of many such instruments is not available to the public on government websites. The article argues that some of the reasons that led to the systematic approach to the publication of treaties and related information and to enhanced Parliamentary consideration of treaties also apply in relation to many of these instruments.

The article recommends that a review of the practice of (non-)publication of instruments of less than treaty status be undertaken, with a view to the adoption of a more systematic approach to the collection and publication of such instruments, with a presumption in favour of publication. It also proposes that the conclusion of such instruments should be reported on a regular basis to JSCOT and that the Committee should have the mandate to consider those instruments as it thinks fit.

1. Background

   International cooperation in combatting international terrorism: the use of the memorandum of understanding

   In the years following the September 11 attacks, Australia entered into a number of arrangements with countries in its immediate region and beyond to enhance cooperation in efforts to combat international terrorism. Each agreement was embodied in a document entitled 'Memorandum of Understanding' (MOU) between Australia and the other government, and the conclusion of the MOUs was announced in a series of ministerial press releases. (1) By the end of 2005 Australia had entered into twelve counter-terrorism MOUs with countries in the region including Indonesia, Malaysia, Thailand, the Philippines, Fiji, Cambodia, East Timor, India, Papua New Guinea, Brunei, Pakistan, and Afghanistan. (2) MOUs have since been concluded with a further five countries: Turkey, Bangladesh, the United Arab Emirates, Saudi Arabia and France. (3)

   Based on the relevant press releases and the few MOUs that have become available, it appears that these agreements set out a framework for cooperation between Australia and the other government; (4) the designation of the agreements as MOUs indicated that they were not intended to create binding obligations and were thus not to be viewed as 'treaties' under international law.

   The MOUs were not published by the Australian government following their conclusion (nor, it appears, by the other governments). The Department of Foreign Affairs and Trade declined requests for copies of the documents, stating that to make copies available to the public would be inconsistent with the expectations of the other parties to the agreement. Nor did the government take up suggestions that it might approach the other governments concerned to see if they had any objections to release of the documents. (5)

   These MOUs do not appear ever to have been made public by the Australian government --or, if they have, they are not readily retrievable on any Australian government website. Yet it appears that all of these are still in force, as they are listed on the website of the Department of Foreign Affairs and Trade as among the 'key elements of Australia's international counter-terrorism effort.' (6) Some of them are also referred to on the relevant Country brief webpages on the DFAT website. (7)

   These MOUs are in fact fairly anodyne documents, containing general expressions of willingness to collaborate across a number of areas in relation to counter-terrorism efforts. There appears to be nothing in them which, if disclosed, would prejudice the national security of Australia or of other countries, or which would have an adverse impact on operational matters. Yet they were significant documents so far as Australia's cooperation with these other governments in the field of counter-terrorism was concerned, and deserved public scrutiny. At the time when the first tranche of these counter-terrorism MOUs was negotiated, one of the concerns of civil society and academic commentators was whether these agreements contained adequate safeguards to ensure that human rights would be observed as part of any activities undertaken under the MOUs. The refusal of government to make public the text of the MOUs made such an assessment extremely difficult, though specific references to the need to comply with human rights in responding to terrorism do not appear in those MOUs that have become available. (8)

   These counter-terrorism MOUs are but one example of the way in which the Australian government and its agencies enters into arrangements with foreign governments and agencies which, although not necessarily creating international legal obligations, nonetheless give rise to expectations on both sides and can significantly affect the way in which Australian government agencies work with their international counterparts and may have an impact on the rights of Australian citizens and residents. As these documents are not classified as 'treaties', they do not have to be tabled in Parliament and brought to the attention of the Parliament's Joint Standing Committee on Treaties, (9) nor is there any formal requirement of general application that they be made available to the public. If they require legislative implementation, they may come to the attention of the Parliament, but in many cases legislation is not required to give effect to them, so Parliament may not get to see them at all.

   The counter-terrorism MOUs involved the deliberate refusal by government to publish MOUs on matters of public interest and importance. However, such MOUs are only one subcategory of the large number of MOUs and similar agreements concluded by Australia across many fields of government activity. While the non-publication of MOUs relating to counter-terrorism cooperation gives rise to particular concerns, a related and equally important matter is the unsystematic approach adopted more generally to the publication of formal agreements of 'less than treaty status', some of which are designated as MOUs, others of which bear different titles.

   There appears to be no consistent policy or practice in relation to the publication of such documents--whether they are published at all, when they are published, where they are published, or whether all documents of a particular type are published or are published in the same place. (10) The consequence is that whether these documents are available for public scrutiny seems to be a matter of chance.

   This article is not based on a comprehensive survey of the myriad forms and subjects of MOUs entered into by the Commonwealth; the Commonwealth government does not itself appear to have a comprehensive list of such agreements and arrangements. This article argues that, given the increasing importance of non-treaty arrangements in regulating relations between Australia and other countries, the failure to have a systematic policy for the publication of non-treaty arrangements is cause for concern, in particular because this failure limits or makes impossible proper public and Parliamentary scrutiny of Australia's international actions in areas of importance

2. The importance of non-treaty arrangements in international relations

   While bilateral and multilateral treaties are an important method by which nation-States regulate their interactions with each other and other actors, they are by no means the only way in which States do this. For a variety of reasons, States have increasingly resorted to other formats: these include so-called 'soft law' instruments which are not themselves treaties but which may contain norms, guidelines or standards intended to influence behaviour; bilateral 'political' agreements to cooperate in particular areas; and political undertakings embodied in joint declarations or similar documents. In many cases these documents are intended to avoid the creation of international legal obligations, are non-binding in form, and therefore do not qualify as a 'treaty' for the purposes of international law and national law. (11) Accordingly, these instruments and arrangements may not be subject to legislative or other review processes at the national level that apply only to 'treaties'. Such non-treaty instruments thus bring with them the advantages of convenience and flexibility (and the possibility of confidentiality in appropriate cases), (12) but also the consequence (intended or unintended) that they may escape the level of public and Parliamentary scrutiny accorded to treaties.

   Scholars have pointed to the growth in 'informal international law making' in international relations, pointing to the increasing use being made by States of non-treaty instruments in recent decades in many areas of transnational or global governance. (13) Arrangements are entered into, and 'non-binding standards' adopted, sometimes on an agency to agency basis, that can significantly influence the way in which national agencies carry out their functions. Commentators have noted that the use of such informal techniques can give rise to issues of democratic legitimacy and accountability as the agreements and instruments involved, even if available to the public, may not be subject to scrutiny by a...