THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
13th Attorney-General's Department Office of International Law Colloquium
Old Parliament House
15 November 2024
ACKNOWLEDGEMENT OF COUNTRY
I acknowledge the traditional owners of the land on which we meet, the Ngunnawal people, and pay my respects to their Elders, past and present. I also extend that respect to all Aboriginal and Torres Strait Islander people here today.
INTRODUCTION AND ACKNOWLEDGEMENTS
It is a pleasure to be invited to deliver the special address at the 13th Attorney-General's Department Office of International Law Colloquium.
The Attorney-General’s Department Office of International Law, or ‘OIL’, is part of the Australian community of international law practitioners, which, despite being physically distant from the traditional centres of international law and practice, is respected internationally for consistently influencing the practice and development of international law.
Each year, the OIL Colloquium provides a valuable opportunity for this community to come together to examine key issues in international law and to learn from each other. This year’s theme is ‘Macro-Trends in the International Legal System’, and I know you will shortly be addressed by Dr Stefan Hajkowicz Chief Research Consultant at CSIRO, on the topic of global mega trends.
WHY FOCUS ON MACRO-TRENDS?
The headlines over the last 12 months are replete with events of international significance, and would in many cases be as familiar to the person on the street as to counsel in chambers.
These include: the escalation of violence in the Middle East; the ongoing illegal invasion of Ukraine by Russia in violation of the UN Charter; the rise of populist and nationalist political movements; an increase in climate related disasters; agreement by States parties to the UN Framework Convention on Climate Change to transition away from fossil fuels; the largest prisoner exchange between Russia and the West since the end of the Cold War; expansion of activities by States in Antarctica and the Australian Antarctic Territory; and the resolution, through dialogue, of trade disputes between Australia and China over barley and wine.
Any one of these developments could easily provide enough material for a whole day of discussion between passionate international lawyers, government officials and policy makers.
Instead, the OIL Colloquium is an opportunity to more thoroughly inquire into trends which underlie these events, and which might otherwise pass us by in the relentless turn of the news cycle.
Judge Hilary Charlesworth, who epitomises Australia’s influence in the practice of international law, wisely observed in her defining 2002 article ‘International Law: A Discipline of Crisis’ that international law is often preoccupied with great crises. She cautions that in focusing too much on the inevitable crisis, international law misses the politics and structural problems of everyday life, and fails to engage with longer-term trends.
Judge Charlesworth colourfully, but sympathetically, quotes David Kennedy who describes international law practitioners and experts as ‘hamsters on the disciplinary hamster wheel’. She implores a more generous consideration of ‘the politics of everyday life’ and ‘issues of structural justice that underpin everyday life’.
Legal practitioners, as creatures of a client-driven profession, are accustomed to responding to the crisis of the moment. But international lawyers, especially those engaged in government service, must engage in resolving the greater problems of our time – what we might refer to as the ‘mega-trends’. This is precisely the purpose for which the Colloquium was established: to discuss the questions which international law is raising, to engage in dialogue, frankly and fearlessly, and, critically, to inform, challenge and catalyse the problem-solving mandate of Australian government lawyers and policy makers.
MEGA-TRENDS, STRUCTURAL ISSUES AND THE POLITICS OF EVERYDAY LIFE
This morning, panel one will discuss the topic of ‘Geostrategic repositioning and the International System’.
The flow-on impacts of the ‘mega-trend’ that is the current shift in the geostrategic balance, for international law and the international system, are manifest to many of us in this room.
But it may not necessarily be neatly understood to ‘underpin everyday life’ for many others.
However, the very operation of the international system is a critical frame which shapes how individuals interact within the world every day.
By way of example: a woman in Townsville taking a flight to visit her sister living abroad, the Newcastle Port harbour master surveying incoming ships, an Adelaide-based start-up launching a new satellite system.
Every single one of these actions directly relates to, and relies upon, technical bodies straight from the international law textbooks: The International Civil Aviation Organization, the International Maritime Organization, and the International Telecommunications Union.
How these organisations operate and how States engage – or don’t engage – with them, has the potential to affect millions of individuals’ lives.
Just as international law shapes global citizens day to day, global citizens are also affected by international circumstances they cannot avoid.
MH17
A shocking example of this, with tragic consequences for 38 Australians, was the downing of Flight MH17. In July this year, I travelled to the Netherlands to represent Australia at a commemoration event marking 10 years since this senseless act of violence. In the decade since that terrible day, Australia has been united in pursuing truth, justice and accountability on behalf of the victims of the downing and their next of kin.
The downing of Flight MH17 may be categorised as an event that sits among those ‘incidents’ or ‘crises’ I have mentioned above. But, that would ignore what this terrible tragedy has revealed to us about trends in the international system, including the impacts of seemingly remote conflicts on communities on the other side of the globe and the ongoing role of international organisations in dispute resolution and the interactions between States.
MH17 was an ordinary, scheduled passenger flight from Amsterdam to Kuala Lumpur that was shot out of the skies above the east of Ukraine killing the 283 passengers and 15 crew on board. Innocent people travelling to see loved-ones and family, for business, or just to see the world. Flight crew doing their jobs, working to get their passengers safely to their destinations.
In this globalised world, a violent attack on an international passenger aircraft is, ultimately, an attack on our ability to connect, to maintain and build relationships and to do business with one another in peace and safety.
We resolved to fully investigate the downing of Flight MH17, to identify those responsible, and to make all efforts to hold them to account, thereby seeking to ensure that such a horrific act would never happen again.
At the 10-year commemoration, I listened as families and friends read out the names of the 298 victims.
These families and friends put their faith in the capacity of both domestic and international law to seek truth, justice and accountability for their loved ones. They have remained resolute in their commitment to seeking justice for those on-board Flight MH17, with many of them telling and retelling their stories.
With the Dutch MH17 Air Disaster Foundation and Dutch Safety Board I visited the reconstruction of MH17.
Seeing the plane was a shocking reminder of how terrible this tragedy was. Its reconstruction is also a testament to the commitment to holding those responsible.
While in the Netherlands, I also met with the Australian Federal Police and law enforcement officers from the Joint Investigation Team – comprised of investigative agencies from Australia, Belgium, Malaysia, the
Netherlands and Ukraine – who conducted the criminal investigation into the downing of Flight MH17.
Based on the Joint Investigation Team’s findings, the District Court of the Hague found three individuals guilty for their roles in the downing and the murder of all persons on board. I was struck by the enduring cooperation between all those involved. Within the Australian Government, the Australian Defence Force, the
Australian Federal Police, and officials of the Department of Foreign Affairs and Trade, and my own Department, have worked tirelessly on investigations and accountability efforts. In doing so, we have collaborated closely with the Netherlands, other members of the Joint Investigation Team, and other grieving nations.
Our work is not done. In 2022, Australia and the Netherlands initiated legal proceedings against Russia before the International Civil Aviation Organization Council for Russia’s role in the downing of Flight MH17. Our key submission is that the Russian Federation is responsible for the downing of Flight MH17 and has breached
Article 3bis of the International Convention on Civil Aviation (known as the Chicago Convention), which prohibits the use of weapons against civil aircraft in flight.
Regrettably, Russia withdrew from these proceedings in June this year. Nonetheless, the case continues in
Russia’s absence, as provided for by the ICAO rules. At the most recent hearing in October this year, Australia and the Netherlands delivered submissions on the legal aspects of our case, following earlier submissions on the compelling facts and evidence that form the basis of our case. We are continuing to make progress. Our case not only represents a significant step in the pursuit of truth, justice and accountability for the downing of
Flight MH17, but is also a significant milestone for the ICAO Council itself, being the first time that a dispute brought before the Council has proceeded to the merits stage.
International organisations can, and do, play a crucial part in ensuring accountability for breaches of international law by States and safeguarding the integrity of the international rules-based order. Bodies such as the ICAO Council provide States like Australia with a critical mechanism by which to hold other States accountable for their actions. By exercising their dispute settlement functions and upholding the rule of law, these bodies can play a crucial role in protecting the rules-based order upon which the entire international system is founded.
The Australian Government’s efforts to hold those responsible to account for the downing of Flight MH17, which began over 10 years ago, demonstrate our commitment to the rules-based order. And – just as importantly – our commitment to securing justice for those innocent Australians who paid such a terrible price of this violation of international law.
TRANSITION TO NET ZERO
While we cannot always plan for unexpected events which change peoples’ lives, sometimes, those moments in history which change our lives and societies are clear to us as they unfold. The transition to net zero and the challenges of decarbonising the Australian economy is one such issue that affects everyday life. It affects local jobs and economies, household budgets, quality of life, and financial and educational opportunities. It deserves the continued attention of international lawyers, and will be considered today by panel two.
The Government is delivering its policy agenda to reduce Australia’s greenhouse gas emissions by 43 per cent on 2005 levels by 2030, and achieve net zero by 2050, meeting Australia’s target under the Paris Agreement.
This transition will create jobs, revitalise regions, spur investment, and reduce energy costs.
The deeply worrying trend of increasing global emissions, coupled with demand for limited resources, can be met with innovation and transformed through new trends toward low carbon and sustainable energy economies.
The meeting point requires skilled international lawyers who can implement strong environmental commitments while ensuring we act in accordance with our international trade obligations, and skilled diplomats who can craft international agreements – such as the recent High Seas Biodiversity Treaty under the framework of the UN Convention on the Law of the Sea – while promoting Australian industry.
These pursuits are not mutually exclusive. International law is a tool that can – and should – be used to both realise innovation and transformation, and to preserve our natural environment.
WHALING CASE
In 2013, I appeared before the International Court of Justice as Attorney-General alongside a formidable legal team comprised of:
- Our Agent, Bill Campbell KC, then General Counsel of the Office of International Law
- Justin Gleeson SC, then Solicitor-General of the Commonwealth
- Henry Burmester KC, then Special Counsel at the Australian Government Solicitor
- the late James Crawford SC, at the time the Whewell Professor of International Law at Cambridge
- Philippe Sands KC, and
- Professor Laurence Boisson de Chazournes
The cause for our appearance was not a sudden crisis. It was Japan’s violation of its obligations under the International Convention for the Regulation of Whaling arising from its JARPA II whaling program.
The Whaling Case is, I think, an apt example of what we can achieve when we examine structural issues and trends, and make a deliberate choice to challenge and transform the status quo.
The trend Australia was concerned by was the level of commercial exploitation and depletion of whale stocks – at odds with both international obligations relating to the taking, treatment and trade of whales, and with the environmental concerns of Australians.
The Court decided by twelve votes to four that the special permits granted by Japan for killing, taking and treating whales were not ‘for the purposes of scientific research’. Thus, all whaling by Japan in the Southern Ocean Sanctuary was subject to the obligations in the Convention for the Regulation of Whaling.
While the Court’s decision illuminated the obligations of the Convention for the Regulation of Whaling, it also set an important precedent for assessing States’ claims that certain measures are justified as part of a ‘scientific program’– an exemption contained in a number of international environmental agreements, with flow on effects for other protection efforts.
THE TECHNOLOGY REVOLUTION
Of course, climate change and the transition to net zero is not the only mega-trend that will impact the everyday lives of Australians. A quick skim of the newspapers and social media commentary reveals that new and evolving technology, and particularly artificial intelligence, is a further and inescapable structural issue with wide-ranging ramifications.
Like the internet, search engines, “smart technology” and “cloud computing”, AI has been, at first, distant, foreign and far from perfect. But AI is increasingly part of every Australian’s everyday life.
AI is in our back pocket, ready at a single touch to provide us with the answer to a question, a prompted image, and assistance with complex tasks.
AI has the potential to unlock new possibilities for industry, science, medicine, education and data analytics. I am sure many of you are optimistic about AI’s potential to assist with laborious tasks such as document review.
At the same time, AI can and will be used for malicious purposes and in ethically questionable ways, raising implications for copyright, autonomous weapons and the regulation of cybercrime.
In these circumstances, the global community looks to international law, not just to weather changes, but to adapt, innovate and regulate.
In May, the European Union adopted the first international Treaty on AI, Human Rights, Democracy and the Rule of Law. And in March, the UN General Assembly adopted its first resolution on ‘Seizing the opportunities of safe, secure and trustworthy AI systems for sustainable development’.
International law is continuing to respond to, adapt to and shape existing and emerging technological platforms, concepts and conduct, including e-commerce, and cyber operations.
The interpretation and application of international trade law, international humanitarian law, and international human rights law to the digital realm is not straightforward. The application of international law to these complex structures and emerging trends requires careful, ongoing consideration and adaptation.
ENLARGING THE INQUIRY TO CAPTURE INTERCONNECTEDNESS
Judge Charlesworth also encourages international lawyers to enlarge their inquiries to capture interconnectedness, the relationship between trends and structures.
For example, with respect to the realm of geopolitics, the question becomes not one of the crises or incidents themselves, but rather ‘how can we think about global security more broadly?’
Perhaps, as we think about artificial intelligence and other emerging challenges in technology, the question should be ‘how can we think about the accessibility and the effects of the technology revolution more broadly?’
With respect to climate change – arguably the defining crisis of our lifetime – ‘how can we capture and address multiple environmental and social challenges and opportunities when transitioning to a sustainable economy and conserving our environment?’
Enlarging our inquiry enables us to see the relationship between trends.
As Dr Stefan Hajkowicz notes in the CSIRO report on mega trends, increased spending on security and defence capabilities impacts on developments in technology and AI. Some technologies reduce, while others increase, our ability to live leaner, cleaner and greener. Predictions of increased demand for resources cannot be separated from the risk of increased international insecurity.
The Colloquium is an opportunity to closely consider the context in which we apply international law, and the promise and influence inherent in that application. Enlarging the inquiry can help us do more with our efforts.
CONCLUSION
As Judge Charlesworth wrote, it may be that there is ‘a pleasurable sense of internationalist virtue that comes with being an international lawyer’, particularly in times of crisis. However, it remains critical that we use international law to counter the injustices of everyday life and to influence those trends which, obscured and challenging as they may be, underpin the good of all.
On that note, I wish you all fruitful discussions here today at the 13th Attorney-General's Department Office of International Law Colloquium. Thank you very much for inviting me to speak this morning.
[ENDS]
