Speech to the International Law Conference
Adelaide, 27 February 2004
The Challenge of Conflict, International Law Responds
(check against delivery)
Ladies and gentlemen
I am very pleased to have been invited to give the opening address to this conference.
The conference theme –“The Challenge of Conflict –International Law Responds”–should prompt a lively debate on the role and effectiveness of international law.
I come to politics with a deep reverence for the rule of law. If respect for the rule of law dissolves within a State –what quickly follows is the triumph of political thuggery. This has profound implications for the well being of the citizens of that State. And I come to foreign policy with an abiding belief in the need for a rules-based international system which is flexible enough to find that balance between respect for sovereignty and the reinforcement of human rights, democracy and freedom.
The cold war was a clash between two systems. The West and democracy emerged victorious, and no decent individual should mourn the end of the Soviet Union. But the bipolar system that existed throughout the cold war had a rigidity of structure that brought a level of international order. And the massive nuclear arsenals possessed by both sides meant that competition took place within accepted parameters.This was a relatively sedate time for international law. After the extraordinary burst of energy following World War 2, it settled into a phase of consolidation. Significant advances were made in areas such as the law of the sea, environmental law, air and space law and the codification of customary international law.But, essentially, international law was left to warm its hands before the fire of State sovereignty.
This is now a time for new dynamism and new thinking. The nature of the world we live in and the threats we face from terrorism, the proliferation of Weapons of Mass Destruction, and weak and failing states necessitate this.Volumes of resolutions not acted upon, international agreements without teeth and endless set piece debates about issues are no longer indulgences the international community can afford.
The Government’s approach to international law mirrors our pragmatic approach to foreign and trade policy. International law is a means to an end; not an end in itself. We look to international law to achieve outcomes and serve both national and global interests. And this is also the challenge to you –to make international law relevant in the face of collapsing states, terrorist groups that work outside any international norms, the proliferation of WMD and the threat posed by rogue nations.
Conflicts and Crises –Australia’s Regional Response
When we think of conflict and international law, our mind immediately turns to the UN. The UN was, after all, set up to ‘save succeeding generations from the scourge of war’and to ‘maintain international peace and security’.
Australia has been active in our region in addressing situations of conflict and humanitarian crisis. In doing so, we have had to be innovative and flexible in how we view and employ international law, tailoring our approach to the circumstances of the case. In some instances the UN system has functioned well to provide the international legal framework for responding to situations of conflict and crisis.
In East Timor in 1999, when the ballot on independence was followed by a wave of violence and destruction, the UN Security Council responded quickly. Resolution 1264 was adopted, authorising a multinational force for East Timor - INTERFET. Australia was at the forefront of the military effort required to quickly deploy INTERFET. We provided the largest contingent of personnel and the force Commander. INTERFET’s rapid deployment under a robust chapter VII mandate allowed a quick and effective response to the crisis in East Timor, giving the UN time to assemble a peacekeeping force for subsequent deployment. East Timor was a UN, and Australian, success story.
In other instances the UN system has shown itself unwilling or unable to address the challenges presented by regional conflicts. In Solomon Islands in 2003, despite our best efforts since the coup of 2000 to support the fledgling peace process, national decline had accelerated. Lawlessness was rife; government institutions had ceased to function; corruption was widespread; the treasury’s coffers were bare. A humanitarian crisis was imminent. The prospect of a failed state on Australia’s doorstep, and our obligations as a neighbour and friend, compelled us to act. We did so following a formal request from the Solomon Islands government, an endorsement by Foreign Ministers of Pacific Islands Forum countries, a multilateral treaty between Solomon Islands and contributing nations, including Australia, and domestic enabling legislation passed by the Solomon Islands parliament. The legal basis for our action was clear.
Given Solomon Islands’diplomatic recognition of Taiwan, however, a UN Security Council Resolution authorizing the operation was never in prospect. This is a situation where the UN was not going to take the lead in responding to a threat to regional peace and security. But rather than sitting by, ignoring the calls of distress from a neighbour, we instead employed other means to provide the legal authorization for our action.
Since its arrival in June 2003, the Regional Assistance Mission to Solomon Islands –RAMSI –has helped reverse the decline. The rule of law has been re-established, along with a functioning government. Over 3700 weapons have been surrendered, 16 police posts established and key ex-militants arrested. For the first time in three years, the people of Solomon Islands are able to live their lives free from the threat of violence.
The action we are taking in Solomon Islands builds upon our experience in Bougainville, where civil war in the late 1980s and early ‘90s resulted in the most serious and damaging conflict in the South Pacific since the Second World War. Australia worked closely with New Zealand in support of regional efforts that lead to agreements for a truce in late 1997, a ceasefire early in 1998, and the deployment of an Australian-led, unarmed peace monitoring group to Bougainville. The Burnham Truce, the Lincoln Agreement, and a multilateral treaty between PNG, Australia, New Zealand, Fiji and Vanuatu provided the legal underpinnings for these actions. Later, a UN Political Office was established in Bougainville to assist in the Bougainville peace process. Over a period of seven years, Australia provided more than 4,000 civilian and military personnel to the Peace Monitoring Group and its successor Bougainville Transition Team to help resolve the conflict. Peace is now becoming self-sustaining, and the parties are moving beyond immediate post-conflict issues to those centred on the establishment of autonomous government and economic development.
Our approach to resolving these three conflicts in the region has been unique in each instance, and our use of international legal frameworks has been flexible accordingly. Our own experience demonstrates that regional responses to regional problems, underpinned by appropriate legal arrangements, can often work best. It is clear that in responding to international conflict and humanitarian crisis, the UN legal framework can play an important role. But equally it is clear that the UN does not have all the answers and we can not always look to the UN to provide solutions to conflict. As a collective organization representing 191 nation states it is often unwilling or unable to do all that is asked of it.
International will
Ladies and gentlemen
The international legal system is only as strong as the will of states to uphold and enforce it. Rwanda and other tragedies of our time have demonstrated all too clearly that international law unmatched by sufficient political will is powerless to prevent a crisis. This was also seen in Kosovo, where the US and NATO in particular, were forced to sidestep the UN system to respond to a threat to international peace and security. And it was also seen in Iraq.
If you see value in the international legal system and its institutions, such as the Security Council –as all of us in this room do –then you ought to welcome the Coalition’s action in Iraq. Over more than a decade, Iraq persistently failed to comply with mandatory United Nations Security Council resolutions that it account for its WMD, the existence of which had been attested by UN inspectors, and its other clandestine WMD capabilities. Far from complying, Saddam Hussein’s regime maintained illegal WMD programs and related activities. And it supported terrorists, tortured and murdered its people and remained a threat, especially to its neighbours. The unanimous passage of UN Security Council resolution 1441 on 8 November 2002 gave Iraq one last chance to comply with the legitimate demands of the international community. That it failed to do so left the international community with little choice.
Robust enforcement of UN Security Council resolutions was the only course of action that would ensure Saddam’s compliance. In my view, granting more time for inspections would only have compounded the damage to the credibility of international law. Moreover, it would have failed to enforce the law as laid down in the UN Security Council’s resolutions. We know this because the interim Iraq Survey Group report of October last year revealed that Saddam’s intelligence services were actively concealing Iraq’s continuing pursuit of WMD from UN inspectors. And because the ISG has, in the words of its former chief, David Kay, ‘learned things that no UN inspector would ever have learned’. [Senate Armed Services Committee 28/1/04]
Even though the search for WMD is not complete, Kay has already established unequivocally that
‘ Iraq was in clear material violation of UN Security Council Resolution 1441’. [Senate Armed Services Committee 28/1/04]
There is no doubt that Saddam’s Iraq was in breach of the law and that we were right to make him comply. Until the Coalition action in Iraq, the lesson of Saddam’s defiance was that the international community would only go so far to uphold its laws. Now there is a new lesson and states of proliferation concern, such as Libya and Iran, are paying attention.
The Coalition’s actions in Iraq have done much to ensure greater compliance with the international system of disarmament and arms control treaties and regimes. In my view, more needs to be done to ensure compliance with this system of laws and regulations. Verification regimes in particular need to be strengthened –and in some cases, introduced –to give the treaties real impact on the activities of proliferators. But other practical measures, such as the Proliferation Security Initiative, are also needed to reinforce compliance with international counter-proliferation regimes.
Australia has worked to ensure the development of the PSI as a practical measure to impede and disrupt the trade in WMD and related materials. We have hosted a meeting of its core partnership and staged the first PSI exercise, involving Australian, US, Japanese and French military and law enforcement assets, last year. Significantly, the PSI is already hitting its mark. Last year, the US, UK, Germany and Italy –acting under PSI auspices –interdicted an illicit cargo of centrifuge parts for uranium enrichment en route to Libya. PSI actions such as this operation are not formalised under international law. But PSI partners are committed to acting consistently with national legal authorities and relevant international law and frameworks. So it isn’t surprising that already some sixty countries –but not the Opposition –have committed to PSI principles.
Australia for one, will work to build on this support, particularly in our region, beginning with the attendance of Singapore at a core group meeting in Lisbon next month.
Terrorism
A states-based system of international relations naturally finds it hard to constrain the actions of non-state actors and international networks that cross state boundaries and act outside international norms. Terrorism, more so than other new security threats, presents such a challenge to the international legal system.
The UN system has shown itself capable of responding. United Nations Security Council Resolution 1373 –adopted in the wake of September 11 - and the UN Counter-Terrorism Committee it created stand as important early milestones in the international community’s efforts to address the threat of terrorism. The UN Security Council’s swift agreement to military action in Afghanistan –in which Australia took part –further demonstrated the commitment of the international community to fight state-sponsors of terrorism.
UNSC resolutions since that time to list terrorist organisations and stem terrorist financing have also made an impact. Most recently, the adoption of UN Security Council 1526 late last month and, under it, strengthened compliance monitoring, represented a welcome step to ensure that all member states meet their international obligations to fight terrorism. But we recognise that UN Security Council resolutions exhorting or compelling states to do all they can in the fight against terrorists will not be enough to ensure we prevail. And the Bali and Marriott hotel bombings drove away any residual complacency there may have been in Australia or our region about the threat from international terrorism.
Today’s terrorists thrive in the badlands of the world where the law’s writ does not extend –places such as the Pakistan/Afghanistan border, the Sulu archipelago in the Philippines, and weak or failing states such as Somalia and the Sudan. To fight terrorism effectively in such an environment practical cooperation between states is essential.
Australia has been, and will remain, at the forefront of this effort. With Indonesia, we have co-hosted two important regional events in Bali: The Conference on Combating Money Laundering and Terrorist Financing attended by 31 Asia-Pacific states in December 2002. And the Regional Ministerial Meeting on Counter-Terrorism attended by 25 predominantly regional states earlier this month. Both meetings identified practical follow-up measures to help build regional cooperation and capabilities in the fight against terrorism.
Australia and Indonesia have also agreed to establish the Indonesian Centre for Law Enforcement Cooperation to improve law enforcement capabilities and act as an operational resource for counter-terrorism efforts.These efforts build on the work already undertaken in the past two years with regional partners and donors. Our cooperation with Indonesia after the Bali and Marriott bombings has produced excellent results –with 32 suspects in the Bali case alone now tried and convicted. We have signed nine bilateral MOUs on counter terrorism cooperation which provide a framework for practical, operational-level cooperation. And our program of counter-terrorism capacity building measures will continue to assist the Asia-Pacific region in contributing to the fight against global terrorism.
A More Effective International System - Australia’s UN Reform Agenda
Ladies and gentlemen
Australia’s own experiences demonstrate the inadequacies of the UN system in responding to situations of conflict, crisis or security threats. I am sure states will continue to be faced with the choice of whether to act in coalition rather than wait for the entire international system to move.
The international norms which might govern such coalitions of the willing are at an embryonic stage. Where the choice is between doing nothing or intervening with such a coalition, we will always be guided by careful judgements based on principle and pragmatism. This only serves to underline the continuing need to reform and build on the UN system.
Australia has a long and proud record of involvement in the work of the UN - and our commitment to the UN remains strong. We are the twelfth largest contributor to the UN budget …and among the top ten contributors to UN peacekeeping operations. As a long-standing advocate of a more focused and efficient UN system, Australia has long argued that reform is desperately required.
We are pleased at the growing recognition of this need and look forward to contributing to the Secretary General’s review process on reform. Gareth Evans, my predecessor as Foreign Minister, is a member of the high-level review group established by the Secretary-General.
The priority areas are clear to Australia. The General Assembly is in dire need of reform and revitalisation. It should be the thriving centre of the multilateral system. Instead is has become an outdated forum of marginal relevance to member states, overgrown with pointless resolutions.
Only fundamental changes to its work programme and methods will restore its authority and prestige. The Security Council also needs to reform. We are pleased with the modest changes to date of its operations, particularly to increase its transparency. And, notwithstanding our concerns about the Council in the context of the Iraq war, it remains one of the most effective and relevant UN bodies. But the Council’s composition is out of step with geopolitical realities –it still reflects the immediate post-war era. Its permanent membership needs to be expanded to include populous nations influential in their own regions and major industrial powers able to make substantial contributions to international peace and security.
While Australia will remain a strong advocate for reform of the UN, we are realistic about the prospects for success. Progress is dependent on international will, and there is little appetite amongst the beneficiaries of the current system for radical change.
Conclusion
Ladies and gentlemen
The prestige and effectiveness of international law depends in large part on its ability to resolve international problems and address international concerns. International law should be there to serve the interests of Australians and of humanity.
I am proud of what Australia has done in our own region and more widely to address situations of conflict and the security challenges facing our world. We recognize that international law can only maintain its credibility when there exists the international will to enforce it. We also recognize that international law must adapt to the changing world around it.
Responsible states cannot and should not shy away from today’s challenges –to do so leaves far too much at risk in the current international security environment.
Ladies and gentlemen
I wish you all the best for the next two days of your conference.
Thank you once again for the kind invitation to speak on such an engaging topic –certainly one of great relevance to Australia and of enormous interest to me.