Ukraine challenges Australia's cigarette plain packaging laws

While those who detest the loss of national power to international bodies usually blame the UN, it is a World Trade Organisation decision this week that is posing the most serious threat yet to Australian government policy. The high-stakes decision is about cigarettes smoking, a global pandemic that kills six million people a year. Accounting for one in every 10 adult deaths, smoking is the most widespread public health threat in the world and the single biggest preventable cause of cancer.  At least 15,000 people die a year in Australia from smoking related causes.

Australia is now in the vanguard of public health initiatives against this pandemic.  Last year the Government passed ground-breaking legislation for cigarette plain packaging through a hostile parliament and then a high court challenge in August this year. The legislation requires tobacco products to feature standard olive-coloured plain packaging with large health warnings.

Within hours of that court decision a challenge came from tobacco-producing country Ukraine in the WTO. Ukraine is not the first country that comes to mind when dealing with Australia trade. According to the Australian Department of Foreign Affairs and Trade, trade is “modest” and it favours Australia. In 2009 Australia exported $70m of goods and services to Ukraine while just half that amount went the other way mainly to pay for Ukrainian fertilisers and electrical circuits equipment. Ukraine exports a lot of cigarettes but little or none to Australia.

Nevertheless Ukraine requested a WTO Dispute Settlement Body (DSB) panel to look at the cigarette trademark restriction. After being deferred last month, the DSB agreed to form a panel last week. Now the DSB will determine if the measures “erode the protection of intellectual property rights” and “impose severe restrictions on the use of validly registered trademarks”. Ukraine explained why IP and trademarks trump public health policy. “Governments should pursue legitimate health policies through effective measures without unnecessarily restricting international trade and without nullifying intellectual property rights as guaranteed by international trade and investment rules," they said. In arguing international trade and property rights should be a factor in health policy, Ukraine said the measures were “clearly more restrictive than necessary to achieve the stated objectives” and  an “unnecessary obstacle to trade”.

With so little trade at stake, it seems an absurd argument but as ABC Lateline discovered, Ukraine's tobacco industry is especially powerful. After the collapse of the Soviet Union, production soared through conglomerates like Japan Tobacco International (JTI) and Philip Morris peaking at more than 130 billion cigarettes four years ago. Unsurprisingly JTI supports the challenge to Australia. “Put simply, if this measure is passed, Australia will be saying to the rest of the world, ‘we're not open for business’,” JTI said. Ukraine challenges two key Australian measures, the Tobacco Plain Packaging Act 2011 and its implementing Tobacco Plain Packaging Regulations 2011. Its case is that these Acts are inconsistent with several articles of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, some of the Technical Barriers to Trade (TBT) agreement and one of the 1994 GATT agreement.

Australia was furious with the interference. It said Ukraine had high death rates from tobacco and its actions were at odds with its own policies to comply with the WHO Framework Convention on Tobacco Control. Australia defended the tobacco plain packaging as a “sound, well-considered measure designed to achieve a legitimate objective — the protection of public health”. Australia said the WTO recognised public heath as a fundamental right of its members and the measure was non-discriminatory and not unnecessarily restrictive.

Unlike Ukraine, Uruguay understood Australian aims. Its WTO reps said Uruguay “could not remain silent in this fight against the most serious pandemic confronting humanity”. Uruguay said the Multilateral Trading System should not force members to allow a product that kills its citizens in large numbers “to be sold wrapped as candy to attract new victims.” New Zealand said that it is also considering plain packaging measures and Norway said that countries are under obligation to adopt measures to protect public health.

But other countries such as Zimbabwe, Honduras, Dominican Republic, Nicaragua and Indonesia have backed Ukraine. Zimbabwe relies on tobacco taxes and has not forgiven Australia for its anti-Mugabe stance. It said 200,000 farmers and their families in the country depend on tobacco. How many Australian lives should die for these farmers, they did not say. Central American nations Honduras and Nicaragua supported the Ukraine too. Honduras said that the WHO Framework Convention is” indicative and non-binding” while Nicaragua said tobacco was one of their most important exports.

Big Tobacco has been careful to cover their tracks but no-one is in any doubt who is behind the charade. Fairfax economic correspondent Peter Martin said a Philip Morris International briefing note for the US trade representative in the Trans-Pacific Partnership wants an investor-state dispute settlement mechanism, “including the right for investors to submit disputes to independent international tribunals.” Martin said the Howard Government FTA with the US resisted this notion but an Abbott Government might be more pliable.

Yanukovich and Tymoshenko to run-off for Ukraine president

Ukraine’s pro-western president Viktor Yushchenko has been defeated in the presidential election leaving opposition leader Viktor Yanukovich and Prime Minister Yulia Tymoshenko to compete in a run-off ballot. Yanukovich led in first round of voting with 36.6 percent of the vote, while Tymoshenko picked up 25.8 percent, according to an exit poll conducted by local television channel Inter. The incumbent got only 5.2 percent leaving him in fifth place behind Sergei Tigipko, a former economy minister, who gained 13.5 percent. About two thirds of Ukraine’s voters turned out to vote. It will be ten days before the Central Election Commission releases official results but there is no doubt who will be in the run-off on 7 February.

Viktor Yushchenko’s crushing defeat was not unexpected after period of legislative deadlock, lagging reforms and economic doldrums. But it represents an end to the Orange Revolution which began in the last presidential election in 2004 when he was poisoned with dioxin. Both Yanukovich and Tymoshenko have signaled a return to pro-Russian politics. Both run-off candidates have also said they will abandon efforts for Ukraine to join NATO.

Russia remains the truculent big brother to which any winner will need to answer to. They curbed natural-gas deliveries to Ukraine three times in the last five years, withheld a new ambassador to Kiev and accused Yushchenko of supplying arms to Georgia during the war with Russia in August 2008. Fyodor Lukyanov, editor of Russia in Global Affairs magazine, called the first round result a “win-win situation” for his country. “Whoever becomes the next president will be much less ideological and more businesslike,” he claimed.

At first glance Yulia Tymoshenko does not seem like a natural Russian ally as a close confederate of Yushchenko during the Orange Revolution. Like Yushchenko her power base is in the west of the country. Her election priorities were a fairer society and more government efficiency, and she also pledged innovation-driven economic reform and better welfare provisions. But she has forged a close relationship with Vladimir Putin who personally negotiated an end to last year’s gas cut with her.

Apparently believing herself to be the reincarnation of Eva Peron, Tymoshenko claimed her biggest success during her two year tenure as Prime Minister was leading Ukraine out of financial crisis. She told Ukrainian TV last week the country has come out of the GFC “stronger, not shattered, not in pieces, not devoid of blood, or lost," She said her government had renewed the aviation industry, built a new hydroelectric station, and led the way with agriculture production. “[We] managed to reach leading positions in the agrarian sector in the world...[and] did not let the agrarian sector to drop its production even half a percent,” she said. “We are building what is needed for the Euro 2012.We modernized factories. Yes, it was difficult, but during a crisis, things are difficult."

But despite Tymoshenko’s rhetoric, Viktor Yanukovich remains the favourite to become the next president. He is a two time prime minister taking the role first from 2002-2004. This was the springboard to the presidential campaign of 2004 in which he was backed by Russia and early results gave him a victory. His win was then thrown out by the courts after street protests and he was condemned for fraud and abuse of power. But Yanukovich wasn’t finished as a political force. He bounced back two years later to regain the Prime Ministership in 2006 and is now is benefiting from disappointment with Yushchenko's failure to stop bickering with his supposed allies including Tymoshenko.

Yanukovich draws most of his support from the Russian-speaking areas of the industrial east and the south. He has promised an economic revival, new jobs, pay raises, judicial reforms and tax-free policies for small enterprises for five years. Yanukovich is a Russian speaker with only halting ability in Ukrainian. But he is no longer the Russian lapdog he was five years ago. Since 2004 Ukraine has effectively created a distinct new national consciousness by banning Russian on national television and in university entrance exams.

The runoff election will be tight and the role of third placed Sergei Tigipko will be vital. As well as being an economic minister, Tigipko was a central banker and a former adviser to both Yanukovych and Tymoshenko. Though officially staying neutral for now, he has in the past expressed interest in working as prime minister under either. He will probably be able to name his price to guarantee either candidate victory.

Chernobyl's new ring of steel

Ukrainian authorities have approved a new $1.4 billion steel cover for the Chernobyl nuclear disaster site. Ukraine has hired a French company to build the casing over the crumbling concrete sarcophagus that was put over the reactor in the wake of the 1986 explosion. The original casing was a hastily built interim measure designed to last 20 to 30 years. The new cover will take five years to complete after which authorities will then be able to dismantle the reactor inside the casing.

The 105 m high cover is urgently required to replace the old casing which has been leaking radiation for more than decade. The reactor still contains 95 per cent of the original nuclear fuel from the plant. Ukraine is concerned that if the sarcophagus collapses another cloud of lethal radioactive dust could escape. A French construction firm, Novarka, will build the structure and the European Bank for Reconstruction and Development has provided the bulk of the funding for the project.

Prior to the explosion Chernobyl (Chornobyl in Ukrainian) was an obscure city on the Pripyat River in north-central Ukraine. 25kms upstream of the city lay the V.I. Lenin Nuclear Power Plant. On 26 April 1986 the city’s name became known across the world. At 1.21am that morning, inexperienced plant nightshift workers turned off the safety switches while doing a test prior to a routine shutdown. A dramatic power surge caused the fuel elements to rupture. The resultant explosion lifted the cover from the No. 4 reactor. Several explosions followed which released thirty to forty times the radioactivity of the atomic bombs dropped on Hiroshima and Nagasaki.

The graphite in the reactor blazed for ten days. Helicopters dropped 5000 tonnes of boron, dolomite, sand, clay and lead onto the burning core to extinguish the fire and limit the release of radioactive particles. Most of the released material was deposited close by as dust and debris, but the lighter material was carried by wind over the Ukraine, Belarus, Russia and to a lesser degree over Scandinavia and Western Europe.

While Soviet authorities sent in several hundred thousand “liquidators” (most of who received near lethal doses of radiation) to attend to the fire, they released no news to the outside world. The first evidence emerged on 28 April, two days after the explosion. Workers at the Forsmark Nuclear Power Plant in Sweden were found to have radioactive particles on their clothes. Forsmark is approximately 1,100 km from Chernobyl. Sweden’s investigation into the source of the radioactivity showed it was coming from the East. Although the Soviets initially denied anything had happened, finally the official Tass news agency reported briefly that an accident occurred at Chernobyl with “some casualties”.

On 2 May, authorities evacuated everyone within 10km of the plant, including the plant workers village of Pripyat. Two days later, all those living within a 30 kilometre radius including the city of Chernobyl itself - a further 116 000 people from the more contaminated area - were evacuated and later relocated. About 1,000 of these have since returned unofficially to live within the contaminated zone.

Four months after the disaster, the Russians finally came clean at an IAEA conference in Vienna. The Soviet Union's chief delegate Valery Legasov stunned his audience with a detailed and frank expose of what went wrong. British government representative Professor John Gittus (document link) received a thick package of carefully prepared documents containing details such as copies of chart recorders at Chernobyl's stricken reactor at the time of the blast. "For me this was the beginning of perestroika," he said. "We didn't realize that at the time, of course, but Chernobyl was a turning point -- a punctuation mark in Russian history."

However information was slow in getting to those nearest the disaster site. It wasn’t until 1989, that the local public gradually became more aware of the extent of the catastrophe. The number of newspaper articles about Chernobyl tripled and pressure on the Soviet leadership grew to co-ordinate a second wave of resettlement began. In 1991, the third phase of Chernobyl policy was determined by the successor states of the Soviet Union in the contaminated area: Belarus, Russia and Ukraine. Official Chernobyl committees were set up in Belarus and Ukraine to compensate and resettlement victims.

There is no consensus over the death toll. After the initial explosion 28 people died, mostly fire-fighters, from radiation or thermal burns, another 60 or so died in the years that followed. A 2005 UN health agency report estimated that about 9,300 people will die from cancers caused by Chernobyl's radiation. Some groups, such as Greenpeace, say the toll has been grossly underestimated. Their report, based on Belarus national cancer statistics, predicts 270,000 cancers and 93,000 fatal cancer cases directly attributable to the nuclear explosion. Radiation has had a devastating effect on survivors; damaging immune and endocrine systems, leading to accelerated ageing, cardiovascular and blood illnesses. With the temporary sarcophagus likely to leak for its remaining five years of existence, the total death toll could reach over 200,000.

Two Viktors in Ukraine

Ukraine’s parliament appointed pro-Russian Viktor Yanukovych (pictured left) as Prime Minister last week. The appointment was a compromise after a four month political crisis. The stand-off ended after arch rival and pro-Western President Viktor Yushchenko (pictured right) finally agreed to share power after Yanukovych signed a pact aimed at preserving key areas of the president's policies.

Ukraine has been in political turmoil since a parliamentary ballot in March in which no party won a majority, although Mr Yanukovych's Party of Regions polled the most votes. The country is split geographical with Yanukovych drawing his support from the mainly Russian-speaking industrial south-east of Ukraine. In this part of the country, many voters are suspicious of the pro-Western agenda. Although the Party of Regions won the election, they did not win enough seats to form an outright government. With the help of the smaller Socialist Party, they were the leading party in the new parliament. President Yushchenko then had to decide whether he would nominate Yanukovych as prime minister, or call for fresh elections.

It represents a stunning comeback for the 56 year old Yanukovych whose fraud-tainted 2004 presidential victory was turned back by the Orange Revolution. Yushchenko eventually won the second round of that election after a Supreme Court-ordered revote. But now the pro-Western reformer must now work closely with with his former rival. Many Orange Revolution supporters see Yushchenko's move as a betrayal, and they have accused the president of weakness. Yanukovych however has promised to continue Ukraine's pro-Western course, uphold democratic freedoms and ensure the opposition has equal rights in elections.

This represents a full circle turn from the heady days of the Orange Revolution. The 2004 election was held in a highly charged atmosphere, with allegations of media bias, intimidation and even a poisoning of Yushchenko that was later confirmed to be the result of the poison dioxin. After Yanukovych was announced the winner, Yushchenko supporters and many international observers denounced the election as rigged. This led to a serious political crisis and wide scale acts of civil disobedience. Protesters adopted the orange as the official colour of the movement because it was Yushchenko campaign colour. Millions demonstrated daily in Kiev wearing orange ribbons and a large tent city was set up. The protests spread nationwide and sit-ins, and general strikes organized by the opposition helped eventually to annul the election result. The second run-off in December was agreed by domestic and international observers to be virtually problem-free and the result showed a clear victory for Yushchenko with 52 percent of the vote compared to Yanukovych's 44 percent.

Ukraine has struggled to find its feet since becoming independent in 1991. Although it has a population of 46 million people in one of the largest countries in Europe, its fate remains inextricably link with its slavic Big Brother in Moscow. Ukraine depends on Russia for most of its energy needs and the Russians also maintain their Black Sea Fleet in the Ukrainian Crimean city of Sevastopol. President Vladimir Putin visited Ukraine twice before the 2004 election to show his support for Yanukovych and congratulated him on his victory even before official election results were announced.

The country is also split in two along language lines. The west of the country speaks Ukrainian where as the east mostly speaks either Russian or Surzhyk which is a hybrid language of Russian vocabulary and Ukrainian grammar and pronunciation. Currently Ukrainian is the only official language although many media cater for Russian or even both languages. Russian is the mother tongue of 30% of the population. Yanukovych’s promise to make Russian a state language accounts for much of his support in the East. His balancing act will be to satisfy his own supporter base without alienating the pro-European Western half of the country.