THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
Melbourne Journal of International Law 25th Volume Celebration
State Library of Victoria
28 August 2024
Acknowledgements
It is a pleasure to be invited to give the annual Melbourne Journal of International Law address and to do so this year – in celebration of the journal’s 25th volume, a silver anniversary.
I acknowledge the Wurundjeri Woi Wurrung and Bunurong People of the Kulin Nations on whose lands we are gathered tonight and pay my respects to their Elders, past and present. I extend that respect to all Aboriginal and Torres Strait Islander people here this evening.
As an alumnus of Melbourne Law School, I am particularly pleased to have the opportunity to speak with you this evening. I thank the MJIL student editors – Megan Stevens, Joseph Zivny and Felix Geake-Ransome – for extending the kind invitation.
I would also like to congratulate Professor Michelle Foster on her recent appointment as Dean of the Law School and acknowledge outgoing Dean, Professor Alison Duxbury.
I also acknowledge members of the Law Faculty, members of the journal’s Editorial and Advisory Boards, and, of course, journal contributors past, present and perhaps future here tonight.
Introduction
In 2000, in their preface to the inaugural edition of the Melbourne Journal of International Law, the founding editors set the new journal a challenge: that its ‘continuance would be determined by whether its contents continue to make meaningful contributions to the understanding and development of international law’.
Christopher Weeramantry, then Vice-President of the International Court of Justice, penned the foreword to that first edition. He expressed confidence that MJIL would rise to the challenge. It would provide, in particular, young Australian lawyers a new forum to shape the discipline.
Since that first issue, MJIL has cemented itself as one of the pre-eminent generalist international law journals in the South East Asian region. Importantly, it continues as a student-run organisation providing Australia’s next generation of public international lawyers the opportunity to, as Judge Weeramantry hoped, contribute to the field.
When one looks through MJIL’s 25 volume archive, it is striking how international law is as consistent as it is changing, even in the face of the last quarter century’s evolving challenges.
The first volume published articles which continue to be of great relevance today: underwater cultural heritage, human rights and the ever-increasing interaction between public and private international law.
Now, in its 25th volume, the journal continues to rise to the challenge set by its founders at the turn of the millennium. The new volume spans the ICJ’s Chagos Advisory Opinion, multilateral responses to forced human displacement, self-defence in response to cyber-attacks and deep-sea mining in the South China Sea. All contributions to critical and challenging conversations and ones I look forward to reading.
International law, Australia and the international rules-based order
Much like the recurring international law themes and questions that MJIL’s 25 volumes have consistently grappled with, international law itself has and continues to play a consistent and important role for Australia.
As Hilary Charlesworth, Madelaine Chiam [Shy-am], Devika Hovell and George Williams proposed in their 2006 book No Country is an Island: Australia and International Law: although at times international law does not seem immediately relevant to domestic Australian politics and law, let alone to our everyday lives, ‘no country is an island, set apart from the developing body of international law’.
This evening I want to reflect on the fundamental role international law has played in the development of Australia’s domestic law and in achieving justice and reform here at home, as well as how Australia engages constructively with international legal institutions and processes in support of the international rules-based order.
Mabo and the implementation of the Convention on the Elimination of all forms of Racial Discrimination (CERD)
In October 1966 Australia signed the International Convention on the Elimination of all forms of Racial Discrimination. However, it would not be until 1975 when Prime Minister Gough Whitlam and Attorney-General Lionel Murphy enacted the Racial Discrimination Act – Australia’s first substantial human rights legislation – that Australia would ratify the Convention.
In 1982 a High Court challenge to the legislation in Koowarta v Bjelke-Petersen failed. By a narrow majority of four to three, the Court found that the Racial Discrimination Act was within the Commonwealth’s external affairs power, though the precise scope of that power remained far from clear.
A decade after the Racial Discrimination Act passed, in a bid to pre-empt and purportedly extinguish the Meriam peoples’ claim to Native Title over the Murray Islands, Queensland passed the Queensland Coast Islands Declaratory Act 1985.
Nevertheless, in their High Court challenge in Mabo No. 1, the Meriam people successfully argued that the Coast Islands Act was invalid. It was inconsistent with the Commonwealth’s Racial Discrimination Act which the Court had already found to be constitutionally valid.
The path was then clear for the 1992 decision in Mabo No. 2. There, the Court famously rejected the legal doctrine that Australia was terra nullius and held that the common law recognised a form of native title.
Mabo No. 2 is, rightly, considered a leading example of the use of international law to influence the development of the common law in Australia. In his leading judgment, Justice Brennan quoted extensively from the ICJ’s decision:
The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.
Notwithstanding the importance of this and other critical conclusions reached by the High Court in Mabo No. 2, the preceding steps in Koowarta and Mabo No. 1 demonstrated the important role Australia’s international treaty obligations can have on the shape of Australia’s domestic law. Especially the domestic protection of human rights in Australia.
Just as it safeguarded equality before the law for the Meriam people in Mabo No. 1, paving the way for the momentous outcomes that followed, the ratification and implementation of CERD continues to play an important role for advancing the rights of Aboriginal and Torres Strait Islander peoples in Australian law.
Tasmanian dams case
Similarly, the High Court’s landmark decision in the 1983 Tasmanian Dams Case further clarified the external affairs power and again demonstrated how international law can be an impetus for domestic law reform.
In the late 1970s the Tasmanian Government proposed the construction of the Franklin Dam on the Gordon River. The dam would have flooded an area in South-West Tasmania which in 1982 – the same year the Tasmanian Parliament passed laws to allow construction to continue – was declared a World Heritage Site by UNESCO.
During the 1983 federal election, Bob Hawke promised to intervene and prevent the construction of the dam. After winning that election, he passed the World Heritage Properties Conservation Act, allowing the Government to stop clearing, excavation and other activities that would damage the heritage site. After the Tasmanian Government refused to halt construction, the Commonwealth commenced proceedings in the High Court.
The central question before the Court was essentially the same as in Koowarta: whether the Commonwealth had constitutional power to make laws to fulfil its obligations under an international convention – here, the World Heritage Convention.
Four to three, the High Court held that the World Heritage Act was indeed supported by the external affairs power. Whilst legal debate over the precise contours of the power would continue for another decade, it was now clear that that under section 51(xxix) of the Constitution, the Commonwealth could enact legislation to fulfil Australia's international treaty obligations regardless of whether the treaty reflected a matter of ‘international concern’.
The decision not only halted the construction of the Franklin Dam and protected a world heritage site it provided the critical constitutional precedent for several new laws being enacted to protect Australia’s environmental heritage and biodiversity.
Domestic implementation of Australia’s international treaty obligations continues to account for many Commonwealth’s statutes. As Attorney-General, I have a particular role to play in Australia’s treaty-making process by considering whether we have domestic legislation and other measures in place to enable Australia’s ratification of, and compliance with, our treaty obligations.
Australia’s involvement in international cases
As much as international law has had a fundamental impact on Australian domestic law, Australia has often played a leading role in the constructive use of peaceful dispute settlement to shape international law and to uphold the international rules-based order.
Nuclear Test Cases
The Nuclear Tests Cases was Australia’s first encounter with the ICJ.
Throughout the 1960s and 70s, France conducted 46 atmospheric tests at Mururoa and Fangataufa atolls – some 8,700 km from mainland Australia. In his iconic ‘It’s Time’ election speech in 1972, Prime Minister Whitlam pledged: ‘We will take the question of French nuclear tests to the International Court of Justice to get an injunction against further tests’.
And, in May 1973, Australia and New Zealand each instituted proceedings against France. As detailed in a 2021 MJIL Article by Richard Rowe, former Senior Legal Adviser in the Department of Foreign Affairs and Trade, the final decision by Prime Minister Whitlam to institute these proceedings was only taken after sustained Australian diplomatic efforts over a decade had been exhausted.
France, considering the Court lacked jurisdiction, refrained from appearing at the public hearings or filing any pleadings. At the request of Australia and New Zealand, the Court awarded provisional measures requiring France to avoid nuclear tests causing radioactive fallout on Australian or New Zealand territory. This was a significant outcome not only for Australia and New Zealand but also for States in the Pacific who were strongly opposed to the nuclear testing.
At the merits phase, the Court found that the applications no longer had any object, or were ‘moot’. The Court considered that the ultimate objective of Australia and New Zealand had been achieved. France, in various public statements, including by the President, had announced its intention to not carry out any further atmospheric nuclear tests following the 1974 series. In the Court’s view, these statements amounted to binding unilateral obligations assumed by France.
The Nuclear Test Cases are a testament to Australia’s longstanding commitment to the international regime for nuclear non-proliferation. It also revealed Australia to be a courageous State unafraid of using peaceful dispute settlement to uphold the international rules-based order, even against States who are close allies.
Whaling Case
Decades later, in 2010, Australia would again turn to the Court to hold Japan accountable for violations of its obligations under the International Convention for the Regulation of Whaling in connection with its JARPA II whaling program.
I appeared before the Court 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 KC, then Solicitor-General,
the late James Crawford SC, at the time the Whewell [Hue-all] Professor of International Law at Cambridge, - Henry Burmester KC, Special Counsel Australian Government Solicitor,
- Philippe Sands KC, and
- Professor Laurence Boisson de Chazournes.
In a resounding victory for Australia, the Court decided by twelve votes to four that the special permits granted by Japan for killing, taking, and treating whales were not ‘for purposes of scientific research’. Thus, all whaling by Japan in the Southern Ocean Sanctuary was subject to the specific substantive regulations and obligations enshrined in the Schedule annexed to the Convention.
The ICJ concluded that Japan had violated a range of these obligations and ordered Japan to revoke any extant authorisation, permit, or licences and refrain from granting any further permits.
Our case before the Court, combined with our sustained efforts through the International Whaling Commission, have contributed to a whaling-free Southern Ocean and a decline in commercial whaling around the world. Since the case, Australia has continued to lead international efforts opposing commercial whaling and advocating for whale conservation.
At the next meeting of the International Whaling Commission in September, Dr Nick Gales – Australia’s Whales Commissioner and key expert witness in the Whaling Case – will be nominated to become the next Chair of the organisation. This is a powerful demonstration of Australia’s commitment to the International Whaling Commission as the global authority for the conservation and management of whales.
The significance of the Court’s decision in the Whaling Case is not limited to the regulation of international whaling. It continues to be a vital precedent in assessing States’ claims that certain measures are justified as part of a scientific programme – an exemption contained in a multitude of other international environmental agreements.
It also continues to be an important case-study in how the Court handled scientific evidence, along with the use and cross-examination of expert witnesses.
And it was of course also the first time Judge Charlesworth was appointed a judge ad hoc by Australia before being elected to the Court in 2021 to fill the late James Crawford’s seat on the bench. Judge Charlesworth was the first Australian woman and only the fourth woman ever elected to the ICJ. I was immensely proud to support Judge Charlesworth’s re-election to the Court in 2023. Judge Charlesworth, another alumna of Melbourne Law School, represents the best of Australia’s commitment to international law and the peaceful settlement of disputes. She has already established herself as a committed, principled, rigorous and fair-minded judge.
Climate Change Advisory Opinions
Australia’s leadership in using international law to achieve important environmental outcomes in our neighbourhood – be it in the Southern Ocean or in the Pacific – is not a new phenomenon, as the Nuclear Tests and Whaling cases illustrate.
Australia continues to engage constructively with current efforts to seek clarity from international courts and tribunals on States’ international legal obligations with respect to climate change.
Climate change is an urgent global challenge, representing the greatest shared threat to all countries. It is also the single greatest threat to the livelihoods, security and wellbeing of the peoples of the Pacific and disproportionately impacts our First Nations people.
Australia was therefore proud to participate in proceedings before the International Tribunal for the Law of the Sea (ITLOS) to clarify the obligations of States to protect and preserve the marine environment from the impacts of climate change. ITLOS delivered its Advisory Opinion in May 2024, which the Government is now considering carefully.
Australia was also a proud co-sponsor alongside 131 others of the Vanuatu-led UN General Assembly resolution requesting an ICJ Advisory Opinion on the obligations of States in respect of climate change. The campaign of course has its origins in the efforts of a group of law students studying at the University of the South Pacific.
Australia filed its first round written statement in March 2024. Australia’s written statements highlight Australia’s resolute commitment to the United Nations Framework Convention on Climate Change and the Paris Agreement as the primary source of States’ obligations under international law concerning the protection of the climate system from anthropogenic emissions of greenhouse gases.
MH17 ICAO council proceedings
Finally, I want to turn to two current but distinct proceedings in which Australia is committed to holding the Russian Federation to account and through which we seek to uphold the international rules-based order.
The first is Australia’s efforts to pursue truth, justice and accountability for the downing of Malaysia Airlines Flight MH17 over Ukraine, ten years ago.
This horrific act of violence resulted in the death of all 298 people on board, including 38 who called Australia home. Just last month I travelled to the Netherlands to attend a commemoration marking the ten-year anniversary of this senseless act of violence.
Since 2022, Australia and the Netherlands have been working together to pursue a case against the Russian Federation in the Council of the International Civil Aviation Organization for its 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 Chicago Convention, which prohibits the use of weapons against civil aircraft in flight.
In March 2023, the ICAO Council decided that it had jurisdiction to hear our case. In June this year, the ICAO Council held the first hearing on the merits of our dispute.
This is a significant milestone for Australia and the Netherlands in our pursuit of truth, justice and accountability for the victims and their next of kin. It is also a milestone for the ICAO Council itself, being the first time that a dispute brought before the Council has proceeded to a hearing on the merits.
At the first hearing, Australia and the Netherlands presented compelling evidence of Russia’s responsibility for the downing, and responded to questions from Council Members on this issue. That evidence is the product of international cooperation that supported two rigorous investigations – a technical investigation led by the Dutch Safety Board and a criminal investigation conducted by the Joint Investigation Team comprising police, prosecutors and officials from the Netherlands, Malaysia, Belgium, Ukraine and Australia. Despite the Russian Federation’s regrettable withdrawal from the ICAO proceedings, only one day prior to the hearing, the case will continue in accordance with the Council’s Rules.
Australia and the Netherlands will deliver our legal submissions in October and we will continue to work closely with the Netherlands in calling upon the ICAO Council to decide in favour of our claim.
Intervention in Ukraine v Russia ICJ Case
Second, I wanted to conclude with Australia’s involvement in ongoing efforts to ensure Russia is held to account for its continuing illegal and immoral invasion of Ukraine.
Australia strongly supports efforts to hold Russia to account for these actions and has worked with like-minded States to pursue this through a range of legal mechanisms.
In September last year, Australia joined an unprecedented 31 other countries intervening before the ICJ in support of Ukraine’s case against Russia at the preliminary objections phase of the case. The Court has decided it has jurisdiction to hear Ukraine’s case that Russia falsely claimed Ukraine committed genocide in violation of the Genocide Convention.
Australia will continue to intervene in Ukraine’s case against Russia in the ICJ. We have just recently filed an adjusted Declaration of Intervention for the merits phase of the proceeding. Our intervention continues to demonstrate our tireless pursuit of international accountability and our commitment to upholding fundamental rules of international law and the integrity of the Genocide Convention.
Conclusion
No country is an island. Even one girt by sea.
International law has had, and continues to have, a critical role in shaping Australia’s domestic law. Without it, some of the most important milestones in our protection of human rights and the environment would not have been possible.
Australia is not a passive recipient of international law – it has and will continue to engage constructively with international legal institutions and processes. In pursuit of the international rules-based order, our efforts before international court and tribunals shape and develop the law and call for accountability for breaches of it. As I said in my submissions before the Court in Whaling, ‘compliance with international obligations is central to upholding the rule of law’.
Of course, even the most devout of international law audiences – such as this room – can recognise international law’s imperfections. But as James Crawford concluded in his famed Hague Academy Lecture, Chance Order Change:
It has many weaknesses, faces many difficulties, is changing and needs to change further. But in the race for order, it is part of our common heritage, and a vital one.
International law is a vital part of Australia’s heritage, no less its future.
As hoped by its founding editors, I am confident the Melbourne Journal of International Law will continue to play a critical role in this future. Its articles will no doubt shape debates, prompt change and propose solutions to some of our most pressing collective challenges.
Congratulations on reaching the significant milestone of 25 volumes of MJIL. Here’s to the next 25.
ENDS
