Speech

13 August 2004

"Harnessing the International System for Peace and Prosperity"

A Speech to the Sydney Centre for International and Global Law , Sydney

Introduction

Thank you [MC - Professor [Donald] Rothwell]

Ladies and gentlemen

It gives me great pleasure to be here today to discuss the very topical issue of the legal dimensions of Australian foreign policy.

I commend the Sydney Centre for International and Global Law for taking the initiative to hold a range of seminars on this topic.

By doing so it is making a welcome and worthy contribution to debate in Australia on an issue of importance to our national security and prosperity.

The Centre itself was established only last year within the Faculty of Law here at the University of Sydney.

In being so located, the Centre is able to draw on and build upon a long and prestigious contribution to the development of international law by the Law Faculty - a faculty which has counted among its number so many important thinkers and practitioners in the international arena.

I come to politics with a deep respect 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.

And I come to foreign policy with an abiding belief in the need for a rules-based international system.

But one which is flexible enough to find the correct balance between respect for sovereignty and the reinforcement of human rights, democracy and freedom.

These are issues I would like to address in my remarks today.

The Need for Living Law - Australia's Perspective

The Government recognises that a rules-based international system has delivered a great deal in the way of stability and security across Australia's foreign and trade policy interests.

In the current international environment, the Government takes an outcomes-focused approach to its international agenda.

Transnational terrorism, the risks of WMD proliferation involving rogue States or non-State actors and the threats posed by weak and failing States underline for us an important fact - that international security today is indivisible…

…that is, what happens in one corner of the globe impacts on others - whether the Asia-Pacific, Europe, Africa or the Americas.

It is crucial to take action to address these challenges…

…which means we must look to use and develop international law and international norms in a range of ways.

The international legal system - with the body of the UN at its core - retains a unique and important role in international efforts to address contemporary threats.

But it cannot remain static. International law must be dynamic in nature and develop to deal effectively with 21 st century political and geostrategic realities, and address contemporary threats and challenges.

For these reasons, practical action and cooperation, regionally and bilaterally, are more important than ever to enhancing security and prosperity and to bolstering the international system.

Our successes in East Timor, Solomon Islands and in building regional cooperation on counter-terrorism are a testament to this approach...

….and show that results can be achieved if States are prepared to harness the international system in a practical way.

But while we are able to find innovative ways to deal with issues, the international community is working within a system of international law that is yet to fully face the realities of modern statehood, abuses of sovereignty and a mature discussion of humanitarian intervention.

A New Concept of the State?

The world is changing rapidly, and so must the way we look at it.

Our notions of statehood have come a long way since the Peace of Westphalia in 1648 - where the absolute authority vested in the person of the monarch was the embodiment of the State.

The late eighteenth and nineteenth centuries brought a change to what Philip Bobbitt, in his book The Shield of Achilles, refers to as the "State-nation" of the post-Westphalian period.

In Bobbitt's view, the "State-nation" was an entity that was responsible for the nation rather than responsible to the nation.

With the emergence of democracy as the prominent basis for modern political systems, we now have the "Nation-State" of the twentieth century - an entity responsible to the nation.

But the evolution of the concept of the State does not stop there.

Over the 20 th century there have been many advances in technology, particularly in the fields of communication and transport.

Transnational movement of information, goods, capital and people has meant that the nature of geopolitical borders is increasingly elastic.

According to Bobbitt, with such changes emerges the Market State - a new form of state which, he writes, exists to maximize the opportunities of its citizens.

I personally find Bobbitt's concept of the market-State a very interesting one.

But regardless of whether one subscribes fully to Bobbitt's view, the changes Bobbitt describes and their effects on traditional concepts of the borders of the nation-State have also changed the nature of conflict.

Traditional wars between two sovereign States have been replaced by conflicts involving non-State actors, and at times intra-national conflicts between opposing forces.

Indeed, since the 1990's some of the worst threats to international peace and security have arisen from internal domestic conflicts, including civil war and genocide.

Externally, the greatest threat to global peace and stability has become transnational terrorism.

But while we are now living in a world of new threats, international law has not developed sufficiently to deal with these threats - to our ultimate peril, I would suggest.

To my mind, the political realities of the 21 st century demand we change the way we treat conflict if we are to effectively deal with new and emerging threats to peace and prosperity.

And part of this includes looking at the role of state sovereignty.

State Sovereignty

I am a strong believer in the central importance of sovereignty as a pillar in our current system of international relations.

As a modern democratic country in Australia we place a high value on our sovereignty…

…and have consistently come to the aid of others to protect their sovereignty.

That said, the principle of State sovereignty, crucial though it is, is not monolithic or immutable.

The notion that actions and events within a State's borders remain absolutely shielded from outside interference is, in today's world, problematic and unsustainable.

In a statement to the 54 th Session of UNGA in 1999 I said that ‘ In the face of acts of genocide, or of human rights abuses on an horrendous scale, the nations of the world must act'.

Put simply, the international community cannot stand by and allow perpetrators of genocide and other egregious human rights abuses free rein.

The break-up of Yugoslavia and the war in Bosnia and Serbia saw some of the worst atrocities Europe had witnessed since the Holocaust.

It saw questions about the inviolability of State sovereignty brought to a head.

Faced with a clear choice between preventing acts of genocide and other grave breaches of human rights, or respect for absolute sovereignty at any cost, a choice was made for the former.

Some years on, this is still a complex question for the international community…

…and it continues to confound it at times.

Some countries have been accused of picking and choosing when to forcibly intervene in a sovereign nation.

And it is true that actions taken by States interceding in world conflicts have been inconsistent.

But the political reality is that there are a number of factors at play including geopolitical factors, domestic pressures, national interests, and legal constraints.

Governments are placed in a dilemma. If they intervene in response to a humanitarian catastrophe, arguments can arise, as they did in the case of Kosovo, about the legal basis for intervention.

On the other hand if they do not intervene in such a case, they are accused of inaction.

The causes of hesitance in such matters are complex, but regrettably the effects can be disastrous…

…as was seen in the case of, say, Rwanda.

Where this leaves us is still searching for a better way to manage international interventions…

…which brings me to the very concept of humanitarian intervention.

Humanitarian Intervention

Humanitarian intervention is an evolving principle, mooted as a legal basis for intervening to achieve humanitarian goals and, as such, is but one of the legal bases for intervention for that purpose.

Other legal bases can include UN Security Council Resolutions or formal invitations by States.

The concept of humanitarian intervention is not a new one, nor has it solely arisen out of the experiences of Rwanda and Bosnia.

Early discussion of the concept of humanitarian intervention can be traced back to the seventeenth century, reflected in the work of Grotius and of later classic liberal thinkers such as John Stuart Mill.

Since 1945 the UN, through the Security Council, has had the capacity to authorise the use of force to maintain or restore international peace and security, which, as we now accept, can clearly be threatened by widespread human rights violations.

Yet throughout the entire Cold War period, the veto power put paid to most efforts to implement these aspects of the UN Charter.

The end of the Cold War has brought a substantial change in the concept of humanitarian intervention and its practice.

Multilateral intervention has, on occasions, successfully come to the aid of those in need. In this respect there has been a growing number of UN Security Council resolutions under Chapter VII.

However, the UN is at times unable to respond directly in an effective and timely way. And this is where some form of legal authority to intervene must be developed to fill the gap.

In this respect, while not yet an established norm in customary international law, the principle of humanitarian intervention has clearly emerged as an influential factor in determining the responses of members of the international community in situations where inaction would result in massive human rights violations.

Important work is being done on questions surrounding concepts of humanitarian intervention.

We should support international efforts to address these issues in a helpful and productive way…

…to ensure that we get a sensible result which is workable and flexible…

…but which also provides protection from self-interested interventions which cannot be justified by reference to humanitarian circumstances.

Australia welcomed the formation late last year of the UN Secretary General's High-Level Panel on Threats, Challenges and Change.

We are strongly supporting this process - providing $100,000 to fund its activities and contributing Australian expertise.

We hope the work of the panel can make an important contribution to the ongoing consideration of humanitarian intervention and related issues of international law.

Australia contributed to the panel on regional experiences in peace-keeping and peace-building in the Pacific, drawing on our experience of cooperative intervention in Solomon Islands.

Preceding the establishment of the High Level Panel, others have looked closely at key questions surrounding humanitarian intervention.

Today I would like to note in particular the work of the International Commission on Intervention and State Sovereignty - or ICISS…

…an initiative of the Canadian government headed by my predecessor Gareth Evans and Kofi Annan's Special Adviser Mohamed Sahnoun.

In December 2001, the ICISS issued a report titled "Responsibility to Protect", which proposed that the duality caused by rigid views of international law and the unavoidable reality of mass human suffering could be bridged via an emerging international obligation - "the responsibility to protect".

The Report proposed that States should have an implied international obligation to intervene in the affairs of other States to avert or stop humanitarian crises, where first-tier responsibility, namely the UN Security Council, is abdicated, or cannot be exercised.

The Report argues that the obligation to protect applies to individual States and the international community as a whole, but only as a last resort.

And while the UN is seen as the principle institution for building, consolidating and using the authority of the international community, the Report recognises that multilateral intervention, regional organisations - such as NATO in Kosovo - or coalitions may be the only means of protecting against human rights abuses in cases where the Security Council cannot act.

Questions of legitimacy and timeliness of action are addressed in the report, as are possible criteria for intervention in order to show just cause.

I think the Report provides a useful intellectual framework for developing further international dialogue on the issue of our response to humanitarian crises.

It also helpfully reflects the practical realities we face in addressing situations of concern.

Our own experience of intervening in the cases of Bougainville and Solomon Islands in a responsible and legal manner - but outside formal UN auspices - underlines this.

There were serious internal problems in Solomon Islands in 2003.

The country was at a cross roads - law and order had broken down, government institutions had ceased to function, corruption was rife, and the nation's finances in a parlous state. A humanitarian crisis loomed.

T he UN Security Council was never able to lead in responding to this threat to regional peace and security - Solomon Islands' diplomatic recognition of Taiwan precluded this.

Australia's leadership - in response to a request for assistance from the Solomon Islands government - had to be based on regional consensus and collective action - and so it was…

… with a formal request for intervention from the Solomon Islands Government, endorsement by Foreign Ministers of Pacific Islands Forum countries, a multilateral treaty between Solomon Islands and contributing nations, including Australia, and domestic enabling legislation in Solomon Islands.

The resulting Regional Assistance Mission to Solomon Islands - RAMSI - has helped reverse the decline since its arrival in June 2003.

The rule of law has been re-established, along with a functioning government and a degree of financial stability, though the task of implementing reforms will be a long-term one.

The action we are taking in Solomon Islands builds upon our experience in Bougainville, where Australia has worked closely with New Zealand in support of regional-level efforts for a peaceful end to a conflict among competing internal parties - again at the formal request of the government of Papua New Guinea.

Peace is now becoming self-sustaining in Bougainville as the parties look to theestablishment of autonomous government and to economic development.

Solomon Islands and Bougainville faced genuine and complex internal conflict - which in turn posed a threat to regional security.

These were problems which could be dealt with effectively through regional efforts.

But the success of these efforts has been because States were able to take timely action…

…and were unimpeded by limits otherwise existing in the international system in its current form - veto powers and all.

Having said this, it is important to note that what was done in the regional cases I have outlined above was done on the basis of recognised principles of international law.

Problematic Evolution

I have advocated that international law must evolve to meet the challenges of the new world we are living in.

But we must also be careful to avoid interpreting the rules of international law in a manner that may not lead to enhanced stability.

In this context, while not seeking to review it comprehensively, I would venture a few comments on the recent advisory opinion of the International Court of Justice in relation to Israel's security barrier.

The ICJ's Advisory Opinion recognised the inherit right of self-defence from armed attack, enshrined in Article 51 of the UN Charter.

But it also limited this right to self-defence in case of an armed attack "by one State against another State", even though this limitation does not expressly appear in Article 51.

In so doing, the ICJ's Opinion has gained a far greater significance than just the Israeli-Palestinian conflict.

While the Advisory Opinion mentions UN Security Council Resolution 1373, it really failed to take account of the fact that that Resolution did contemplate a right of self-defence in response to acts of terrorism.

This idea was recently articulated by Dr Leanne Piggott, who points out that the ICJ's Opinion failed to take into account that conflict is not limited to State actors…

…and that States in the real world currently are forced to protect themselves from armed attack by international terrorists.

Clearly a number on the ICJ bench did not fully agree with the Opinion - with separate opinions being issued by three Judges.

In my view - as a foreign minister who needs to be able to harness international law in pursuit of Australia's national interests - this aspect of the opinion does not enhance the potential for international law to advance peace and stability.

It simply does not make sense in this age of transnational terrorism to so narrowly define any State's capacity to deal with such a complex threat to its security…

…and indeed to ignore these complexities when making contributions to case law at the international level.

And in doing so, nothing has been gained in relation to the conflict under review…

…neither the ICJ's Opinion nor its adoption by the General Assembly - which Australia voted against - has contributed materially to progress towards peace between Israel and the Palestinians.

Of course, it is a matter for the public record that I have urged the government of Israel to move the security barrier closer to the green line - the 1949 armistice line - and not to allow it to become a de facto border.

But this does not take away from our strong belief that Israel, and all countries, have the right to defend themselves from terrorism, including where such acts are committed by non-State actors.

The Concluding Challenge

The Government has always taken a pragmatic approach to foreign and trade policy.

We see international law as a means to an end - not an end in itself.

International law, both treaty-based and customary, is not stagnant.

Over the last 400 years, international law has changed, and it must continue to change in a dynamic way to meet the new challenges of the modern era and great concerns of humanity.

The same can be said of international organisations - a sclerotic international system that does not address the world's problems risks being sidelined.

In light of the humanitarian crises of the 1990's, including civil war, famine and genocide, members of the international community have recognised their collective responsibility to step in and protect peoples' basic human rights.

But the international community still wants for a firmer collective legal view on humanitarian intervention, on the responsibility to protect…

…in support of action in situations of concern.

We look to international law to achieve outcomes and serve both national and global interests.

And this is also the challenge to you as practitioners and experts in international law - to help make international law relevant in the face of States under stress, terrorist groups acting outside any international norms, and the threat of proliferation of WMD among State and non-State actors.

Thank you once again for the opportunity to speak at the Centre.

I trust that the work of the Centre will continue to support evolution and change in international law - and by so doing help us all to meet the pressing needs of humanity.

Thank you.