International Law and Australia’s National Interests
Ladies and gentlemen.
I would like to acknowledge the Ngunnawal and Ngambrie people, the Traditional Custodians of the land on which we meet, and pay my respects to their Elders past and present. I extend that respect to any Aboriginal and Torres Strait Islander people present.
Thank you Isaac[Kfir, ASPI's Director, National Security Program and Head, Counter-terrorism Policy Centre], for that lovely introduction. I note Dr Kfir is well qualified to speak himself – and, like many of you, will have his own views - on my chosen topic, "International Law and Australia's National Interests".
I would like to start with the University of Pennsylvania's Global Go to Think Tank Index – released in January – which ranked ASPI 12th in the world amongst defence and international security think tanks.1
That's no small achievement, and a measure of the standing ASPI has earned in recent years.
Frankly, in our highly contested world, it is harder and harder to be 12th in anything – as Australians know well.
In 2014, despite our national economic success over the previous decade – truly a bright spot in the global economy – we slipped from having the 12th largest economy to the 13th, as other economies grew beside us.
I often speak, as I know ASPI does, about the power shifts under way in our region, as China and other Indo-Pacific powers rise, and the region becomes increasingly contested.
Of course, changes are also taking place in economic relativities – and the simple fact is: in this competitive world, no-one stands still, and it's hard to remain at number 12, let alone on top in anything, for long.
So well done, ASPI, and may your stocks keep rising!
Global security and international law
In terms of security, a focus of this institute's work, the global conversation has been dominated in recent weeks by the actions of North Korea in testing progressively advanced nuclear weapons and ballistic missiles.
One of the conundrums of the North Korea nuclear issue relates to the international community's response to Kim Jong-Un's increasingly aggressive actions.
The world has been united in its condemnation of Pyongyang's testing.
While United Nations sanctions have put pressure on the regime over the past decade2, they have not prevented Kim acquiring and testing more dangerous weapons, a trajectory that is unquestionably destabilising.
Given events on the Korean Peninsula in recent weeks, we are entitled to ask: what is the value of the international legal system, with the United Nations Charter at its core and the Security Council as its implementing body, if binding treaties and resolutions can't prevent one isolated, rogue state from attaining nuclear weapons, against the wishes of the entire international community?
International law didn't stop Russia from invading Crimea or destabilising Ukraine.
Nor has it greatly constrained China's behaviour in the South China Sea.
In these cases, a rogue state, a nuclear power, and the world's foremost rising power have each, in their very different ways, moved ahead without regard for international rules.
This is not the kind of international environment that works in Australia's interests.
Yet we must deal with the world as we find it.
As I have already mentioned, our time is characterised by increasing contest over power – particularly as global strategic and economic heft shifts from West to East.
It is in this context that the world has to find its way, with President Donald Trump's "America first" representing a departure from the international leadership role we have come to expect from the United States.
Global approaches to issues are in any event proving harder to forge.
In addition, many of our international partners understand that the current system has benefited all nations, but their preparedness to defend the system, or to constrain themselves as it requires, has not yet been tested, or is open to question.
Some, such as China and Russia, quite plainly want to reshape the system, to some extent at least, in their own image.
Australia is engaging with this strategic complexity by ensuring that the national assets that help us advance our interests are as capable and focussed as possible on the goals of maintaining our security and prosperity.
In doing so, we work closely with countries which share our values.
Our alliance with the United States remains central – despite the robust debate around the Trump administration's approach thus far to the international stage.
As the Prime Minister said in his Shangri La address in June,
"Through all the twists and turns of history, the United States has stood for the values on which its great republic was founded - freedom, democracy and the rule of law."
In partnership with close neighbours, including the nations of ASEAN, we seek to embed rules and expectations of behaviour that preserve ongoing peace and stability in our region.
We work in a plethora of forums to support and strengthen the system of international law that defines the legitimate rights of nations. To paraphrase a renowned American jurist3, this system has the backing of most nations, on most issues, most of the time.
Australia remains an advocate for acceptance and observance of international law.
North Korea's flagrant disregard for the rules only strengthens our collective resolve.
Tonight I will focus on why international law is in Australia's interests, how Australia strengthens it, and what more we can do to give it the prominence it deserves in our security analyses.
International law and the national interest
International law is a set of commitments to self-restraint and self-regulation that each state makes because it understands the benefits it derives from an international system that works well.
We should not assume this is universally understood.
It follows, then, that to strengthen international law, we should advocate its benefits.
Since the Second World War, and especially in the last 40 years, across a vast domain of international affairs, international law has gathered momentum, proving its worth in all sorts of practical ways.
Our security, stability, health, prosperity, and mobility all depend on the arrangements we have in place with other states – to enable trade, to communicate, to travel, to manage our borders, and to ensure our sovereignty and security.
These arrangements are effective because we can rely on them.
We have embedded these networks and connections as commitments – as international law, contained in treaties, norms, or other arrangements.
The binding power of international law exerts a strong, constant influence on international relations today.
Strengthening international law in our national interest
Australia observes and seeks to strengthen international law for four main reasons.
First, it supports the peaceful settlement of disputes, and an international system that protects states large and small from coercion.
Secondly, it supports an open international economy.
Thirdly, it provides frameworks for global cooperation on global problems.
Finally, it does all this on the basis of a commitment to fundamental freedoms that align with our values.
Our strategic agenda is to strengthen international law and to guide its evolution.
International law is unique in that it binds states, but at the same time states' practices can create and extend it.
I will speak with particular reference tonight to the oceans, nuclear weapons and the internet.
First, in relation to the oceans:
The third UN Conference on the Law of the Sea, which began in 1973 and concluded in 1982, was a landmark in the history of international affairs.
Several thousand people from more than 150 countries worked for nine years
on complex issues which had defeated a far smaller group of countries at the Hague Conference in 1930 and the two UNCLOS prequels in 1958 and 1960.
According to an unnamed political scientist cited in The New Yorker in 1983, it was an enterprise "quite beyond the competence of human beings to manage".4
Yet the negotiators set out a comprehensive legal order for the world's oceans.
They balanced the rights and responsibilities of coastal states, and they balanced the interests of coastal states vis-Ã -vis non-coastal states.
They also developed institutions for the peaceful settlement of disputes.
When I joined DFAT in 1985, the sense of achievement was still palpable.
I distinctly recall taking part in mock negotiating exercises, as a graduate trainee in my first year in the Department, each of us taking on the interests, values and perspectives of a different member nation.
Today, UNCLOS is almost universally observed.
It may not always seem that way – particularly in the South China Sea.
UNCLOS, though, is much more observed in practice than it is in the breach.
Sixty-two5 coastal states have deposited charts with the United Nations showing their maritime zones.
There has been a steady upward trend in the number of states seeking and accepting formal legal resolution of disputes over their maritime boundaries according to UNCLOS.
All nations have good reason to invest in international law – to create it, to settle their disagreements with reference to it, and to observe it.
In fact, the first and foremost contribution we make to international law is that we fulfil our obligations, and encourage others to do the same.
Recently, Australia has been engaged in a process of conciliation with Timor-Leste under UNCLOS.
Under the auspices of the Conciliation Commission, Australia and Timor Leste have agreed on the central elements of permanent maritime boundaries in an arrangement the Commission Chair has commended as "equitable and balanced", benefiting both parties.
We will continue to work with the Conciliation Commission in good faith to finalise this agreement.
We are focussed on giving legal effect to this settlement – which will support stability in our neighbourhood, as well as our specific interests at stake in the case.
In New Delhi in July, the Minister for Foreign Affairs, Ms Bishop, made the point that our Timor Sea conciliation, and India's settlement with Bangladesh in the Bay of Bengal, demonstrate that larger powers and smaller powers benefit alike when they settle disputes in accordance with international law.
She said: "This approach to international dispute resolution, founded on respect for international law, sets an example that allows us to look upon the dynamic Indo-Pacific region with hope and ambition, rather than anxiety."
I had the opportunity to reiterate this myself at the Indian Ocean Conference in Colombo in August – alongside my counterparts from around the region.
Australia has developed the law of the sea in ways that have increased stability and sustainability in the Pacific Ocean.
Stability, in that we have assisted Pacific Island countries to establish their maritime zones and boundaries in accordance with UNCLOS, mitigating a possible cause of inter-state dispute.
In 2010, neighbouring states in the Pacific had settled about a third of their maritime boundaries.
By 2015, that proportion had doubled.
With stability comes sustainability, as defined boundaries facilitate the management of ocean resources.
Australia has deep experience in assisting Pacific Island countries to co-ordinate fisheries management, including through the negotiation of specific treaties to enforce fishing standards across our region.
As Anthony Bergin notes in his recent ASPI paper6 on Indian Ocean fisheries, Australia and Indonesia have a long history of managing fisheries in the Arafura and Timor Seas, and increasingly the Pacific and Indian Oceans.
I welcome his suggestion that Australia's strengths in these areas could open up new avenues for international collaboration in the South China Sea.
It is in our interests to engage China in the development of discrete, practical legal frameworks for activities such as fisheries management and marine research that apply specifically in the South China Sea and demonstrate a commitment from China to respect the rights of its neighbours there.
The key, of course, is to demonstrate to our partners the benefits of international legal arrangements that codify and reinforce their rights and responsibilities, and to reach agreement on what it might take to realise them.
China's expansive claims in the South China Sea, and its sustained and calibrated measures to realise them, make the situation challenging, but UNCLOS sets out the obligations all States must meet.
After years of discussion, China and ASEAN members have completed the draft framework for a Code of Conduct in the South China Sea, and negotiations on the Code itself will begin soon.
Australia is not a party to the negotiations, but we have a significant interest in how they proceed.
It is important that the Code add value to the non-binding Declaration of Conduct that China and ASEAN states signed in 2002. To do this, we believe the Code should be comprehensive, legally binding and consistent with international law.
It should include mechanisms for ensuring parties meet their commitments, including on self-restraint and the peaceful resolution of disputes.
We also note that the Arbitral Tribunal ruling on the South China Sea of July 2016 remains legally binding on both parties.
It is in our interests to use our influence persistently in our region to direct states towards an international legal system that protects their rights and facilitates the peaceful settlement of disputes free from coercion.
Having spoken about oceans, let me now turn to nuclear weapons.
The global nuclear posture today is heavily influenced by international law.
Over the past 40 years, international law has been used to limit the proliferation of weapons of mass destruction – a major security achievement.
The Nuclear Non-Proliferation Treaty, or NPT, is a global norm underpinned by effective verification.
As Allan Gyngell has recently reminded us, in the 1960s, Australia seriously considered building our own nuclear weapons program, but instead we threw our support behind the NPT, a global regime that has created a powerful 'taboo' against the spread of nuclear weapons.7
Its impact has been undeniable.
The number of states possessing nuclear weapons has been limited to nine, despite some dire 1960s predictions that over 20 countries could go nuclear within a decade or two.
The NPT has also assisted nuclear disarmament. From a high point of around 70,000 nuclear warheads globally in 1986, there are now fewer than 15,000.
90 per cent of these remain in the hands of Russia and the US which are in the process of reducing this figure further under New START.
To develop new nuclear weapons capability today is to be an outlier, a pariah defying an agreed and established international order.
For this, we have the NPT to thank – a treaty-based regime which also benefits from "soft law" reflected in export control regimes and initiatives such as the Proliferation Security Initiative.
As with the South China Sea issue, a strong international norm and clear international law against nuclear proliferation give us purchase upon even the most difficult international problems.
On the Korean Peninsula, international law and related measures continue to condition the situation in at least three useful ways.
First, increased sanctions authorised by the United Nations – applied effectively, and universally - may yet have an effect on North Korea's strategic calculus.
Second, international law has provided a common frame for the very different interests that South Korea, Japan, the United States, China and Russia have in the Korean Peninsula and North Korea's nuclear program.
The international consensus that North Korea is plainly in the wrong has a settling effect on public opinion in most of the interested parties.
This situation is more conducive to governments pursuing prudent and considered policy than would otherwise be the case.
Third, the international nuclear non-proliferation regime founded in international law sees North Korea isolated as the only state to conduct nuclear tests this century.
Although not yet in force, the Comprehensive Nuclear-Test-Ban Treaty exerts a powerful normative force, and its monitoring system, already in operation, allows detection and analysis of North Korea's testing activities.
Australia, of course, shares the international ambition for a world free of nuclear weapons.
However, it is our view – and the view of the US, the UK, France and a number of non-nuclear weapon states – that the treaty prohibiting nuclear weapons that opened for signature last month in New York will not advance that ambition.
Indeed, it may well undermine the NPT: it has weaker safeguards than the NPT framework, and presents a risk to the authority of this cornerstone agreement through parallel obligations; while failing to articulate how disarmament would be verified.
International law in cyberspace
And lastly, cyber space - an area of international law which is currently the focus of sustained diplomatic effort, and which has serious security implications.
Australia has helped establish the rules of the road for cyberspace.
In 2013 we chaired a Group of Experts at the United Nations – which included representatives from the US, UK, China and Russia. This Group agreed that international law applies in cyberspace.
In 2015, the same Group agreed a list of 13 norms of responsible state behaviour.
The international community has thus made good progress delineating the boundaries of acceptable behaviour.
However, we are concerned that States are increasingly pushing those boundaries, believing they can get away with it.
As the Foreign Minister said earlier today in launching our International Cyber Engagement Strategy, Australia is committed to detecting, deterring and responding to malicious cyber activity, especially by states and their proxies.
We need an architecture for practical cooperation – to respond to unacceptable behaviour in cyberspace effectively, within the existing framework of international law.
Here, then, is a legal battle with a great deal at stake. We intend to continue to take a leading part.
In these three areas, the oceans, nuclear weapons and the internet, we see a consistent picture of international law supporting Australia's interests, directly and in fundamentally important ways.
In each case, international law, even when it is breached, brings focus and lends authority to our attempts to influence international partnerships.
We work with Southeast Asian nations, and with China, to establish and uphold law in the South China Sea.
We work with the entire international community to bring North Korea to its senses.
We work with international partners for an open, free and secure internet.
It is not the case that breaches of the law indicate its weakness in the face of some parallel world defined by the exercise of raw power alone.
International law is itself a mode of power, one that is self-repairing, and evolving continually.
Australia needs to be actively engaged in shaping developments to protect and advance our national interest.
It would be instructive, I think, to explore the relationship between international lawfulness and soft power.
Strategic analysts could usefully map the tendency for law-abiding and law-making states to reinforce one another's power, and compare that with the pattern of interactions amongst states that have in common more frequent transgression of international law.
International law and associated verification schemes provide a wealth of material for objective analysis.
Intuitively, we have a sense of what the results are likely to show: the rule of law buttresses stability, security and prosperity for the common wealth of all, and particularly for those who observe it.
It would be a story worth telling, and a conversation worth having across the Indo Pacific.
1. ASPI TACTICs #1 2017, citing University of Pennsylvania's Global Go to Think Tank Index for 2016, released January 2017
2. UNSC Sanctions Committee Established 2006 https://www.un.org/sc/suborg/en/sanctions/1718/resolutions
3. Professor Lou Hinken, Colombia University
4. William Wertenbaker (1983) 'A Reporter at Large: The Law of the Sea – I', 1 August 1983, The New Yorker 38-65, 38.
Full quote: "The General Assembly should never again convene a conference of the size and complexity of the Third Conference on the Law of the Sea. As a decision mechanism it is absurd and in its size and complexity imposes demands on delegates which in their totality are quite beyond the competence of human beings to manage." As cited in Miles, Edward "An Interpretation of the Caracas Proceedings"
5. There are 43 landlocked UN member states. The Vatican, Kosovo, South Ossetia and Nagorno-Karabakh – which are not UN member states – are also landlocked. Therefore, there are 150 coastal States out of 193 UN member states. Most, but not all, are parties to UNCLOS.
14 UN member states have signed but not ratified UNCLOS: ie United States. A further 14 UN Member States have neither signed nor ratified UNCLOS: ie Venezuela, Turkey.
UNCLOS is regarded as customary international law by almost all UN member states (even those who have not ratified like the United States but vigorously state they act in accordance with it and treat it as custom), but there are a few persistent objectors: ie Venezuela, Turkey.
6. Anthony Bergin. https://www.aspi.org.au/journal-article/australias-approach-indian-ocea…
7. Allan Gyngell, 'Fear of Abandonment'; pp90, 149-50