The legal issues surrounding AUKUS

30 September 2021 By Jerome Doraisamy
Donald Robertson

While Australia’s newest security and defence pact is “one of the most important in our lifetime”, there are numerous legal considerations to unpack, said one competition and economic regulation partner.

AUKUS – the trilateral security and defence pact for the Indo-Pacific region between Australia, the United Kingdom, and the United States, which was announced mid-September – signals, Dentons partner Donald Robertson said, “the most momentous shift in geo-politics in our lifetime”.

The text for the pact is yet to appear, but the outline of the agreement gives rise to what he said is “one of the most important of our lifetime”.

Significance

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Speaking to Lawyers Weekly, Mr Robertson (a competition and economic regulation partner in Denton’s IP and technology team) said that AUKUS will deepen the defence ties between the three historical allies.

“Security is best achieved in a broad commercial relationship, where all parties add value to the region (they are not just old-fashioned colonial powers), thereby demonstrating their commitment,” he noted.

There have been many steps along the way to this new relationship, Mr Robertson detailed, “broadly mapping the rise of China, and Asia more generally, as major regional and global powers, and the economic and security responses that have shadowed that rise”.

“India, for one, is now more engaged in the region. The UK has already signalled its interest by its application to accede to the CPTPP. Other ASEAN nations or zones (such as Taiwan) are more externally engaged. Even the French reaction to the cancellation of the submarine contract reflects their ambition to be more engaged in the Pacific region.”

The Indo-Pacific region, he surmised, is the place where the world goes to do politics.

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Australia stands in the middle of it all, Mr Robertson said.

“By seeking to integrate security responses across naval, cyber, artificial intelligence, quantum computing and other undersea domains, AUKUS focuses the world’s eyes on Australia and its allies. With that focus comes commercial and legal opportunities.”

Tackling looming challenges

The legal issues coming out of the pact, Mr Robertson reflected, go well beyond the matter of the cancelled submarine contracts with the French government.

Moreover, one cannot ignore, he added, that “there will be a reaction from China” about the operations of the alliance in the Indo-Pacific region.

“Beyond the initial reactions will be continued strategic issues in relation to Australia as an exporter of goods and services to China. But these are not new issues, and Australia’s signs show it is holding the line in relation to the national interest and belief in rules-based commerce,” he advised.

“Australia will, however, also need to show (as the US has started to show in recent days) that we can at the same time have peaceful commercial relationships.”

Pursuing both our national security interests and commercial interests, Mr Robertson continued, will require careful management.

“This might mean that dispute procedures are triggered (such as actions before the WTO) but that is part of being a community of rules-based trade partners. China’s (and Taiwan’s) applications to accede to the CPTPP will also need careful management and challenge our own commitment to rules-based trading,” he submitted.

“Lawyers for commercial clients need to continue to pursue the opportunities in the whole of the Pacific area, but be mindful that they are playing in a field where there are large ideological and political issues at stake.”

Emerging opportunities

This all said, the trilateral pact also paves the way for new and major commercial projects, Mr Robertson stressed.

“As many nations vie for influence, we are likely to see opportunities open up for significant projects in the whole Pacific or Indo-Pacific area. The newly minted free trade agreement that is coming into effect for the Pacific region (PACER Plus) shows that we should no longer think of the Pacific only as a tourist destination (it is a fabulous one) but also as an arena where significant commercial operations occur,” he listed.

“As the Pacific nations seize the opportunity open to them these include infrastructure, mining and exploration opportunities that are there, including those in their offshore territorial and Exclusive Economic Zones.”

Grasping such opportunities, Mr Robertson concluded, always comes back to the same strategy: “Keep close to the client and be proactive in opportunities that arise.”

The legal issues surrounding AUKUS
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