As the world descends into power politics, less powerful nations must place their faith, and potentially their security, in the retention and development of a credible international legal system. That credibility turns on the respect and observance given to it by smaller powers.
Australia is one but is it capable of pulling its weight in the ebb and flow of the challenges to the system or will it display a degree of opportunism, as at times in the past, which could undermine it?
In its international relations Australia has oftentimes characterised itself as a good international citizen and generally as law abiding. The former is more conventional and transactional in nature while the latter prescribes strict rules of observance and accountability. The post-WW2 rules-based system remains current, within a framework of functional arrangements underpinned by classical notions of legal obligation evolved from the 17th century and embodied now the Charter of the United Nations and treaty law. Inevitably as the range and diversity of participants have widened, the pressure for structural and substantive modification has become inexorable as the levels of trust within the system have weakened, notions of common ‘values’ have dissipated, and the willingness of participants to be legally accountable for their actions has declined.
As put by the then Foreign Minister, Julie Bishop, in 2017: The international rules-based order, the web of treaties and alliances and institutions that has been built up since World War II is under strain, even fraying, as some nations seek to bend or break rules in pursuit of short-term gain.
The issue now is whether the system remains fit for purpose. If not how should the notion of mutual obligation be restored from top to bottom, both for us and for all recognised members of the global community. Indeed can we assume there always will be a global community or might it fragment into separate camps with little in the way of comity between them. During the Cold War the Soviets recognised only treaty law, to which they were a party. That also governed their handling of diplomatic relations. They rejected much of what the West accepted as customary law.
Any system of law must stand on a bedrock accepted by all members, derived originally from consent. That bedrock, described by the Austrian jurist Hans Kelsen (1881-1973) as the grundnorm, is the rule that agreements (treaties) must be kept (pacta sunt servanda). It is not a discretionary principle as some governments, including Australia’s from time to time, would have it. If seen as largely discretionary, trust and good faith are eroded, leaving all members less secure. That mandatory rule and the treaty system built on it, including customary law as accepted over time, provides that bedrock.
Moving on, post-coronavirus Covid-19, the existing system must evolve further, retaining proven parts and modifying others, reflecting changing world-wide balances in ethnicity, culture, religions, and secular values. One must assume that much will be retained from the existing order and that its authors will not be building de novo.
Of value would be a reformed United Nations system and its associated agencies (similarly reformed); the International Court of Justice, again as may be modified; and those multilateral treaty systems considered by their parties as still in force and functional, together with others of a global or regional purpose that serve their members’ interests.
The issue for Australia will be the extent to which it can be relied upon to demonstrate the requisite trust and good faith within itself and shared with others in the system. This does not necessitate the acceptance of values per se; rather it implies the acceptance on the part of all of mutual respect and mutual obligation. We take our neighbours on that basis as we find them as they would take us.
Does our recent track record support the contention that we have that degree of respect for law and legal obligation, even when it may not suit us?
Let’s examine the recent track record in that regard:
- The assault by Australian Special Forces on Iraqi territory on 19th March 2003 before the ultimation to the Iraqi Government had expired was unlawful as was subsequent military action there, and in relation to Syria, Libya and Yemen, in concert with US forces, contrary to the UN Charter and Security Council resolutions.
- Australia’s involvement in Afghanistan, from 2001, while initially authorised by UNSC resolutions, out-stayed its purpose once Osama bin Laden was removed. It degenerated into an endless pursuit with the US to democratise the Afghans, continuing without authorisation for some 17 years, the longest military engagement in Australia’s history. In the course of this war there have been a number of allegations of illegal killings by Australian forces which are the subject of intensive ongoing quasi-judicial investigations.
- Australia’s performance regarding the negotiations over the seabed resources of the Timor Sea (Timor Gap) left a lot to be desired, including espionage and the obstruction of Timor-Leste’s preparation and presentation of its case before the International Court of Justice. Australia has asserted that there was nothing illegal about the bugging of Timor’s Cabinet Office under cover of a phoney aid project, or the detention of Timor’s court documents and its legal adviser. Some time prior Australia had concerted with Indonesia, the then illegally occupying power, to divide up the seabed boundary and together consecrate the ensuing (but short lived) Treaty with champagne while airborne over the Timor Sea. Other operations of the secret service overseas would also seem at times to go very close to the wind, creating insoluble (for affected personnel) extra-judicial issues.
- Acting contrary to UNSC resolutions and decisions in relation to the West Bank of Palestine, an area illegally occupied by Israel following the 1967 Egyptian War, and agreeing in 2019 to moving the Australian Embassy from Tel Aviv to Jerusalem. An in your face act towards the Palestinians whose rights are in abeyance.
- Condoning the ongoing illegal occupation and establishment of a military base by the US and the UK on Diego Garcia, an island territory in the Indian Ocean. Together with other parts of the Chagos Archipelago the territory formally belongs to Mauritius, as confirmed by both the International Court of Justice and the UN General Assembly in 2019. The inhabitants of Diego Garcia had been forcefully removed to other islands to accomodate the base. The purchase of Christmas Island from the colonial administration in Singapore without consultation with the inhabitants has similar unsavoury features.
- Treating in bad faith the all-important 1951 UN Refugee Convention. By deeming persons with genuine refugee claims and asylum rights, Australian governments have deemed such persons to be ‘illegals’ or economic refugees – and has held many in offshore locations excluded from Australian jurisdiction, thus denying due process in Australian courts for their refugee claims. Some of these actions are clearly illegal, and inhumane, while other aspects offend the spirit and intent of the Convention.
As commented by Benjamin Reilly in the The Conversation on August 5: “It is difficult to square the focus on values with our treatment of asylum seekers, selective application of international law and ongoing engagement with autocratic regimes in Asia. (A good example of all three is the now-lapsed refugee resettlement deal with Cambodia’s brutal Hun Sen regime, signed with a champagne toast, which Scot Morrison presided over when he was immigration minister.) If values are now the coin of our foreign policy realm, we will have to start walking the talk”.
It is noteworthy however that Australia is referring less to values these days, given the company it keeps, which does warrant a certain acknowledgement to principled pragmatism.
Having regard to the above, and other aspects not detailed, can Australia be trusted to act in good faith when awkward legal issues arise that we may prefer to avoid, by hook or by crook? That will require more careful deliberation of wider aspects affecting its international standing before making commitments it may not be able or wish to live up to. It won’t be alone in that regard. A new world order may form by itself. Whether or not it does, our participation in the mainstream will require diplomatic and political finesse of the order demonstrated by the post-WW2 generation.