Speech to the Law Institute of Victoria

Melbourne, 23 November 2005

International Law: Developments and Challenges

Introduction

Members of the Law Institute of Victoria, distinguished guests, ladies and gentlemen.

I wish to thank Victoria Strong for the opportunity to address the Institute today.

The Law Institute of Victoria was established in 1859 - the same year that Darwin published his theory on evolution through natural selection.

I mention this only because it reminds us that international law is itself evolutionary - always a work in progress. But rather than the blind forces of natural selection, in international law it is people like us - governments, academics, practitioners, opinion-makers - that are the agents of change.

The organic nature of international law means that it can be notoriously difficult to tie down or settle definitively. But it also gives rise to its greatest strength - an ability to adapt to the needs of the international community at the time.

And adapt it must. International law must meet the global challenges of the day - if it fails to do so, it risks sliding into irrelevance.

International law provides an essential framework for the pursuit of our foreign policy interests. Treaties record the understandings and commitments of states, set out the minimum standards of behaviour expected of states and the rules for their interaction, and underpin stability.

I say this not as a starry eyed idealist, but as a pragmatist.

Respect for the rule of law - both domestically and internationally - is not only an important principle in its own right, but essential for the peaceful co-existence of individuals and states.

When respect for the rule of law is lost, anarchy and the triumph of political thuggery quickly follow.

States, as both the authors and the subjects of international law, have a responsibility to guide its formation and interpret its rules carefully.

States also have a responsibility to ensure the central tenets of international law are upheld by the international community.

If some of the darkest episodes of the twentieth century have taught us anything, it is that international laws that lack the political will required to enforce them soon become nothing more than empty slogans and hollow principles.

Today I would like to touch briefly upon some of the major challenges facing the international community today - notably terrorism, proliferation of weapons of mass destruction, and the problems posed by failed or failing states - and how the government is seeking to harness international law to address these challenges.

As the bombings of this month in Jordan and last month in Bali show us, terrorist atrocities continue to afflict and outrage the international community - regardless of nationality, faith or colour.

Where international law has responded to terrorism, Australia has welcomed it.

The adoption by the Security Council, just two weeks after the 11 September attacks, of Resolution 1373, compelling State action against the financing of terrorism, was a high point. Since then there have been numerous Security Council resolutions ensuring that States impose and maintain specific financial controls on entities and individuals associated with Al Qaeda and its fellow travellers.

Thirteen specific global instruments on terrorism have now been put in place. The most recent convention - the International Convention for the Suppression of Nuclear Terrorism - was signed by our Prime Minister at the UN leaders' summit in September. This Convention addresses one of the most serious threats faced by the world today - the combination of terrorism and weapons of mass destruction.

But there is one glaring omission - and that is a Comprehensive Convention Against Terrorism. The General Assembly has been considering this Convention since 1999.

Over six long years, and culminating in the largest-ever gathering of world leaders in New York in September of this year, the international community has proven itself unable to agree on a political definition of terrorism.

This is no mere theoretical debate. Such a Convention would require all state parties to criminalise terrorist acts and introduce 'prosecute or extradite' legislation - closing some important legal loopholes in the fight against terrorism.

Nor is it an argument about the merits of a particular cause. It is about the moral imperative to outlaw behaviour that offends the deepest principles of all civilisations.

The UN Leaders' summit was notable for another disappointment. Despite months of negotiations beforehand, there was absolutely nothing agreed in the Leaders Declaration on one of the most pressing international security problems of today - arms control and non-proliferation.

Multilateral non-proliferation regimes are being tested now by a small minority of governments that flout the standards observed by the rest of the international community - and who in doing so imperil the security of us all.

Earlier this year I saw first-hand in New York progress on the Non-Proliferation Treaty Review Conference be thwarted by a few countries determined to prevent consensus.

Despite Australia's best efforts - including chairing the conference intended to accelerate its entry into force - I hold out no great hopes that the Comprehensive Test Ban Treaty will come into force any time soon.

And it is unacceptable that in the current global climate we have not commenced negotiations on a Fissile Material Cut-off Treaty.

Australia will continue to do what it can to strengthen non-proliferation regimes - including through innovative measures like the Proliferation Security Initiative, and taking a leading role in universalising the IAEA's Additional Protocol on strengthened safeguards.

But the UN Summit's failure to address disarmament and non-proliferation is a dangerous portent. We must hope the international community musters some resolve before shocking events force it to do so.

The UN Summit was not all bad news however.

Leaders agreed to enshrine the 'Responsibility to Protect' principle in international law, and agreed to establish a Peacebuilding Commission and create a Human Rights Council. Taken together, these initiatives have the potential to vastly improve how the world deals with humanitarian crises and failing states.

For years, a dichotomy between state sovereignty and international intervention remained a Gordian knot in international law. Finally in 2001, the International Commission on Intervention and State Sovereignty devised the concept of “Responsibility to Protect”. Australia was proud to have supported that report and has been a strong supporter of “Responsibility to Protect” ever since.

Like “responsibility to protect”, the International Criminal Court is an historic development in international law. The creation of the ICC was a long-term policy objective of the Government, and a strong personal ambition of mine.

Ensuring there is no impunity for the perpetrators of the most grievous crimes is not only a moral imperative. It is also essential as a deterrent to the worst sorts of international behaviour. For this reason, Australia was one of the first states to call for the situation in Darfur to be referred to the ICC, and we welcomed the decision of the Security Council to refer the matter to the Court in March this year.

Australia believes the ICC can act as an additional guarantor of stability, especially for fragile states. We have been strongly encouraging our Pacific neighbours to become parties to the ICC Statute, and we will be providing them assistance to do so.

Prosecution of perpetrators is not the only action required to build lasting peace. Fragile states need assistance to make the transition from conflict to normalcy. A new Peacebuilding Commission - which was agreed in principle at the UN Summit, though much of the detail is still to be worked out - should assist.

Given Australia's own experiences in the region - notably in Bougainville and Solomon Islands - this initiative has been of particular interest to us.

The UN's existing human rights machinery faces a credibility crisis. Human rights discussions are hijacked for the purposes of political point-scoring. Human rights crises are ignored whilst the debates of years past and fought over and over again. And a perverse system of representation sees some of the most egregious human rights violators elevated to positions of leadership.

This credibility crisis must be overcome if the UN is to regain its moral authority on the topic. Australia is hopeful that a new Human Rights Council will do just this, and we are playing an active role in negotiations to ensure this outcome.

Conclusion

I am a strong believer in a rules-based international system. But this does not and should not mean States have no room to move when interpreting international law.

I made the point earlier that international law - if it is to be observed and respected - must have the ability to adapt to the needs of the international community at the time.

The UN Charter - and particularly those elements relating to enforcement and the use of force - has remained unchanged since 1946. But the same document in the circumstances of today is interpreted in a vastly different way.

When delegates from around the world drafted the Charter, they envisaged a very different United Nations, and indeed a very different world, from the one that eventually emerged in the post-war years.

States intended the UN to play a robust and interventionist role in response to “threats to the peace”, as set out in Chapter VII of the Charter. They envisaged standing military forces, drawn largely from the Permanent Members of the Security Council, a UN Military Staff Committee and interventions which in modern parlance we would term “peacemaking”, not simply peacekeeping.

The reality was vastly different. Cold War politics intervened. In fact the only 'true' Chapter VII operation - one run as the UN founders envisaged, by UN-badged forces rather than a coalition of national forces - was the Korean War. And of course this only received Security Council authorisation because of a unique set of circumstances.

The thawing of the Cold War saw US-lead forces oust Iraq from Kuwait under Chapter VII authority during the first Gulf War, but this was a coalition of national forces, led by the US, rather than a 'UN force' as the framers of the Charter had envisaged.

Since that time we've had numerous 'coalitions of the willing' acting to restore stability and address threats to international security, under a variety of different mandates.

NATO's intervention in Kosovo had no United Nations Security Council mandate - it was instead based upon a then loosely-framed principle of 'humanitarian intervention'.

East Timor was an Australian-led coalition of national forces operating under a Chapter VII mandate.

In Solomon Islands the Australian-led, multinational RAMSI was an initiative sought by the Solomon Islands Government and agreed to unanimously by Pacific Islands Forum countries. RAMSI - or the Regional Assistance Mission to Solomon Islands - operates under no Security Council mandate.

And in Iraq Australia participated in a US-led coalition of nations to force compliance with a series - seventeen in fact - of mandatory United Nations Security Council resolutions, including UNSCR 1441 of November 2002.

I make these points to illustrate a fact that would be well-known to you: international law is not written on tablets of stone, and state practice forms an inseparable part of its development and interpretation.

And the value of international law - to the publics of the world - will always be judged not by its intrinsic righteousness, however great that may be, but by its effectiveness in promoting international stability and dealing with international crises.

Thank you.

ENDS