Australia's contributions to international law: Good International Citizenship in practice

Keynote Address to ARC Discovery Project Workshop, Western Sydney University, 25 February 2025

International law too often operates in the shadows of global politics, its enforceability limited and its rules all too routinely violated by those with both the muscle and inclination to prioritise their own narrowly perceived interests. As long as it has existed – and its origins go back centuries, although most multilateral rule making and institution building has been the product of the last hundred years – there has been scepticism about its relevance and utility, even among those most attracted to its ideals and believing most strongly in its indispensability in shaping a safer, saner, more just, equitable and prosperous world.

The present international environment is, unhappily, certainly feeding that scepticism on a grand scale, with the wreckage on display including Russia’s grotesque breach of the UN Charter in its invasion of Ukraine; Israel’s massive violations of international humanitarian law in the conduct of its otherwise defensible response to the October 7 Hamas atrocity; China’s indefensible violation of its treaty commitment to the law of the sea in its island-building militarisation of the South China Sea; and America’s walking away – under Trump even more shamelessly than usual– from its treaty commitments to international organizations like the WTO and WHO, and disgracefully applying sanctions against International Criminal Court prosecutors acting wholly within the letter and spirit of their mandates.

Why International Law Matters

All that said, Australia, more so than too many others in the international community, has always taken international law seriously, and continues to do so today. And for good reason. Partly it’s a matter of our inherited British legal tradition, which seems to retain more resonance for us than for our great and powerful fellow-former-colony across the Pacific: treaty obligations are sacrosanct, and we take pains to observe to the full rules of customary international law.

Partly it’s a matter of straightforward national interest: given the relative modesty, in global terms, of Australia’s political, economic and military power, our security and economic interests manifestly are best served by a rule-based, rather than realpolitik-based, international order.

Partly it’s recognition of the reality, which ought to be more universally acknowledged than it is, that a principled, rule-based order is manifestly not just in our but every state’s interest. Not just in basic, technical standard-setting in areas like telecommunications, aviation and maritime safety, and intellectual property. But also in creating the conditions for sustainable peace and security. And in meeting big transnational challenges – above all now climate change and pandemics – that are beyond the capacity of any single nation, no matter how powerful, to solve alone.

And partly our general willingness to take international law seriously has been because we have seen – albeit, in this case, not always with the passion and clarity that I for one would have liked – the treaties, conventions and institutions created by it as important vehicles for protecting and advancing basic human rights around the world, a commitment demanded by our common humanity.

Australia’s Record

It's one thing, of course, for a country like ours to have a general willingness to take international law seriously, and quite another to have the willingness and capacity to try to shape its content for the better, and to improve the effectiveness with which it is applied. The reality is that our desire and ability to make a difference has waxed and waned over the decades since we first acquired in the 1940s a foreign policy of our own, not the UK’s, and an effective capacity to deliver it, including (with the adoption of the Statute of Westminster in 1942) the uncircumscribed ability to enter into our own international commitments. That waxing and waning has been partly a function of the broader international environment of the time, but probably even more a product of changes over time in our own political leadership.

Before the 1940s Australia’s contribution to the shaping of international law was either non-existent or negative, as with Prime Minister Billy Hughes’s central role in defeating Japan’s proposed insertion of a racial discrimination clause in the League of Nations Covenant. Our first great decent internationalist was Dr HV Evatt, who as External Affairs Minister was totally committed to cooperative multilateral institutions and processes to address both security and development objectives, and who was given his head in this respect by Prime Minister Chifley. Evatt’s contribution to the founding of the United Nations is the stuff of which legends are made, and rightly so – especially in his fight for the rights of the smaller powers against the great powers in the respective roles of the General Assembly and the Security Council, and in his faith in the UN as an agent for social and economic reform and as a protector of human rights.

There wasn’t much left of Evatt’s cooperative internationalism, however, by the end of the long subsequent reign of Prime Minister Menzies and his Coalition successors, with the Cold War rendering the UN more and more impotent, and multilateral processes generally more and more sterile, compounded by Menzies’s excruciating Anglophilia and the totality of our effective policy dependence on the United States. Even though some on the conservative side – like Casey, Spender, McEwen, Gorton and Holt — did have a more open-minded outlook, the image, and the reality, remained until the early 1970s of an Australia largely isolated and irrelevant in its own region, deeply unsure of its identity, utterly pessimistic about its ability to be a force for change in its own right regionally, let alone globally, and in any event wholly unclear about what kind of change it would want to pursue if it could.

The Whitlam Government well and truly broke this mould, undaunted by Cold War constraints and showing a great capacity, as Evatt had done, to match Australian foreign policy to the mood and needs of the time. Recognising China; bringing home our last troops from Vietnam; finally burying the White Australia policy; accelerating Papua New Guinea’s independence; and taking France to the World Court for its nuclear tests in the Pacific were just some of the decisions in that tumultuously active 1972-75 period which set Australia on a new path. There was a confidently optimistic internationalism about it all, combining a particular sensibility to the then relatively new agenda of decolonization and North-South dialogue with a strong commitment to process – Gough’s obsession with international law, and in particular treaty-making, was of an intensity which almost defies parody.

While the Fraser Government which followed from 1975-83 was more than happy to re-embrace Cold War verities, and all the East-West division of friends and enemies that went with it, it is to the considerable credit of Malcolm Fraser that on racial and other issues which mattered most for Australia’s long-term capacity to advance its interests, especially in the region and multilaterally, Whitlam’s policies, including his respect for international law, were not only continued, but reinforced.

At the Coalface

The Hawke and Keating Governments that took us through the next thirteen years renewed that spirit of activist, optimistic adventure, which had so characterized the Whitlam period, but I think it would be fair to say in a rather more focused and systematic fashion. I was fortunate enough, as Foreign Minister for more than half that period, from 1988-96, to have been left some major legacies by my predecessor Bill Hayden: in particular his success in redefining our relationship with the US (albeit in what might be described sometimes as creative tension with the Prime Minister), and developing a real role for Australia in the international peace and disarmament movement.

But above all, I was lucky to come into the role just as the Cold War ice-floes were breaking up, a new era of cooperative international problem-solving dawned for the major powers, and opportunities opened up everywhere for other players, certainly middle powers of Australia’s stature, to stretch their wings and find new ways out of old dead-ends – as we did in leading the way on issues like peace in Cambodia, the Chemical Weapons Convention, financial sanctions against apartheid, and building new Asia-Pacific economic and security architecture. It was an extraordinary period of global transformation and, as I wrote in my published memoir a few years ago, “Bliss was it in that dawn to be alive, but to be Foreign Minister was very heaven!”

I have to acknowledge that I brought to my new ministerial role only a very modest understanding of international law, its doctrinal underpinnings and detailed case law. I had not spent much time on it at Law School. And, to this day, if you want a description of the scope of ius cogens, and whether it’s reach is coterminous with obligations erga omnes, I’m not your man. But what I did bring to that role from the outset were strong views about the importance of international law in the scheme of things. This was essentially for all the general reasons for taking it seriously I listed earlier, but reinforced in my case by a strong personal distaste for the sheer moral indecency of conducting international life either without principled standards, or with double standards (which distaste remains unsuppressed despite years now of tramping diplomatic corridors and sitting around international conference tables, not to mention all the insensitivity training one accumulates over 21 years in domestic politics).

I sought in office to conceptualise that instinct by arguing that Australia’s national interests, like those of every other country, should be understood as not just confined to the familiar duo of security and prosperity, but as extending to a distinct third category, being and being seen to be a good international citizen. By that I meant being willing to engage in cooperative international action – very much including through the effective application of international law – to advance public goods like eliminating extreme poverty, pandemics, atrocity crimes, environmental destruction and nuclear and other weapons of mass destruction. My argument was designed to appeal not just to moralists but hard-headed realists, making the point that behaving, and being seen to behave decently and not just self-interestedly, worked greatly to a country’s advantage reputationally and in other ways when it came to advancing traditional security and economic interests. Soft power may have had its day in this new Trumpian world we inhabit, but it worked for me, and I think it’s fair to say for Australia, during my term.

As Foreign Minister, and in some cases continuing well into my post-political incarnations at the International Crisis Group and elsewhere, I made a number of specific efforts to influence international law-making and enforcement, some of them reasonably successful, others less so. In four multilateral areas in particular: achieving the elimination of weapons of mass destruction, responding effectively to genocide and other crimes against humanity, advancing the cause of environmental protection, and (probably a more Quixotic aspiration than all the others put together) reforming the UN, and making it a more effective protector of international peace and security.

Weapons of Mass Destruction. Australia’s greatest success here was unquestionably bringing to conclusion in 1992, after some twenty years of very inconclusive negotiations, the Chemical Weapons Convention, which remains the most comprehensive of all the various WMD treaty regimes – an achievement that so exhausted the Geneva Conference on Disarmament that it hasn’t ever since been able to agree on even starting to negotiate anything else! Along with doing a mass of very professional text-drafting, one of the most useful of all the catalytic roles we played was convening in 1989 a global conference in Canberra of all relevant government and chemical industry players, which did more than anything else to get the diplomatic endgame going.

The idea for that initiative in fact came from the then U.S. Secretary of State, James Baker, who in a phone call from mid-Atlantic said to me in almost these words: “We have too much baggage to do this ourselves; you guys believe in this, are knowledgeable, and have a reputation for real independence of mind, giving us a hard time recently on a bunch of issues like MFN status for China, so you won’t be seen as just carrying our water”. We didn’t mind doing just that, and I think the exercise remains a model of mature cooperation between our two countries.

Nuclear non-proliferation and disarmament has been a passion of mine ever since having the harrowing experience of visiting Hiroshima and Nagasaki on my first ever overseas visit, as a young student, in the mid-1960s, and we took in government several initiatives here that were rather less to Washingtons’ taste.

One was to join the case before the International Court of Justice initiated by the UN General Assembly, arguing for the illegality of nuclear weapons, as the most indiscriminately inhumane ever devised. The Court’s advisory opinion in 1996 went some of the way down that path but not as far as we would have liked, and – not unusually for such opinions – did not do as much to change the world’s behaviour as we would have liked. That remains the only occasion on which I ever appeared before the ICJ, and I have to say I remember it best for the total inconsequentiality of the oral proceedings, with uninterrupted set-piece presentations and absolutely no questioning or other substantive exchanges between bench and bar. I enjoyed the majestic formality of it all, but my part could perfectly well have been played by a well-trained Major Mitchell cockatoo.

The other major nuclear initiative of the Hawke/Keating Governments was our sponsorship of the Canberra Commission on the Elimination of Nuclear Weapons, which gathered together an extraordinary cross-section of the world’s best minds on these issues, including former heads of the UK defence forces and US Strategic Air Command, to produce a strongly argued unanimous report, making for the first time at this level a compelling case for a nuclear weapons free world, in terms that have been widely quoted ever since: “So long as any state has … nuclear arms others will want them. So long as any such weapons remain in any state’s arsenal, there is a high risk that they will one day be used, by design or accident. And any such use would be catastrophic.”

Unfortunately, the Canberra Commission reported only after we left office in 1996. Its recommendations were not taken up with any enthusiasm by the incoming Howard Government, and for all their force, the world moved into a period of sleep-walking on nuclear non-proliferation and disarmament from which it has never emerged, with – as the Bulletin of the Atomic Scientists Doomsday Clock documents - the risk of a nuclear holocaust, whether deliberately or accidentally triggered, now as high as it has ever been.

As a footnote, I might add that the Rudd government established in 2008 a successor to the Canberra Commission which I had the pleasure of chairing with my former Japanese Foreign Minister colleague, Yoriko Kawaguchi, the International Commission on Nuclear Non-Proliferation and Disarmament. Our 300-page report produced in December 2009 was, I think fair to say, comprehensive, compelling and characterised by hard-headed realism – never losing sight of the ultimate goal of absolute abolition, not just reduction, of nuclear weapons, and mapping a clear and detailed path, with a number of specified timelines, for getting there, but at the same time fully recognising all the constraints and obstacles that will have to be overcome on the path to global zero. But I can’t pretend that it has had any more traction than any other effort to reduce the existential risk to life on this planet as we know it that nuclear weapons, along with climate change and pandemics, manifestly pose.

Genocide and Other Mass Atrocity Crimes. Preventing, halting and redressing the consequences of genocide and other mass atrocity crimes was a preoccupation during my time as foreign minister, and has continued throughout my post-political life to this day. Apart from listening to the wrenching family Holocaust stories of many of my Jewish friends at school and university, the particular emotional trigger for my personal involvement was watching with horror the genocidal reign of Pol Pot in Cambodia in the mid-1970s– in which young people I knew from my backpacking student days in the 1960s, and scores of thousands more like them, were murdered – and then with real distress the ongoing civil war that followed it. I was determined in government to try to do something to bring that conflict to an end once and for all, a chance that came with the peace process we initiated in 1989 that came to treaty fruition in the Paris Peace Accords in 1991.

Australia’s particular contribution – which we backed up with an immense diplomatic effort to sell the idea, and a comprehensive study (working with Indonesia) to demonstrate its feasibility – was to propose that the UN play an unprecedentedly central role in the transitional administration of the country, thereby giving China a face-saving way of withdrawing its support for the Khmer Rouge, the continuation of which in the past had stymied all previous peace efforts. The subsequent course of events made all too unhappily clear that while we succeeded totally in bringing peace to Cambodia, and stability to the region around it, achieving lasting democracy and human rights protection was another story. But the Cambodian peace process remains one of the Hawke-Keating Government’s most heralded achievements.

There is a larger question thrown up by the Cambodian case, which came to a boil in public debate during the 1990s, and which I was forced to confront as Foreign Minister, as a result of a series of catastrophes in the Balkans and Africa –especially the horror of Rwanda in 1994 and Srebrenica in 1995. – and which continues to haunt us to this day. What on earth we can do as an international community to ensure that we never again have to look back, after yet another mass atrocity crime has been perpetrated behind sovereign state walls, asking ourselves how we could possibly have let it happen again? How do we overcome the lingering legacy of that reading of Articles 2(4) and 2(7) of the UN Charter which says that, despite the Genocide Convention and all the other international human rights instruments that have been developed since the Second World War, these crimes are internal matters, no-one else’s business?

It wasn’t until after I left politics that I came up with an answer that began to satisfy me or anyone else: the concept of the ‘responsibility to protect’ (‘R2P’), initiated by the report in 2001 of the Canadian-sponsored International Commission on Intervention and State Sovereignty which I was privileged to co-chair, and then formally and unanimously embraced by the UN General Assembly sitting as the World Summit in 2005. The core idea is that while the primary responsibility for its citizens from mass atrocity crimes remains with each sovereign state itself, and while there is a secondary responsibility for other states to assist them to so act, in the event of a state failing to discharge that responsibility, as a result of either incapacity or ill-will, then the responsibility shifts to the wider international community, which is obliged to act, as persuasively or as coercively as ultimately proves necessary, to halt or avert the harm in question. The emphasis throughout, unlike the wholly military-focused concept of ‘humanitarian intervention’ which dominated earlier debate, is on prevention as well as just reaction, and response by non-military means in all but the most extreme cases, with miliary force only being legally permissible with Security Council approval.

R2P does not create new legal obligations in addition to those that already exist under international law in relation to genocide, other crimes against humanity and war crimes, and there is a very long way to go before we could begin to describe the whole package as sufficiently widely and consistently applied in practice to count as new customary law. But it does arguably now amount to a new international norm, certainly a new standard of behaviour, and a new guide to behaviour, accepted almost universally as such, in multiple subsequent UN General Assembly and Security Council debates and resolutions, even if in the present fraught global geopolitical environment it has not – at the sharpest end of its potential application—been at all successful in stopping the horrors that have erupted in Gaza, Ukraine, Sudan, Myanmar and elsewhere. Former UNSG Ban Ki-Moon was gilding the lily only a little when he said before he retired. “Our debates are about how, not whether, to implement the Responsibility to Protect. No government questions the principle”.

Environment Protection. Global environmental issues had nothing like the salience when I was foreign minister that they do today, but were beginning to gain political traction, with issues like the ozone layer attracting public and governmental attention, and global warming just beginning to do so. Bob Hawke, to his credit, saw the writing on the wall earlier and more clearly than most, and certainly more than me. The talismanic issue in this respect became protecting the Antarctic wilderness from the potential ravages of oil and mineral exploration and exploitation. In 1989 I brought to Cabinet a submission recommending that we sign the Convention on the Regulation of Antarctic Mineral Resource Activity (CRAMRA), which had been long in the negotiation and set quite rigorous controls on any such future activity. But Hawke wanted to go much further, and to ban it completely. I thought that any effort to change world opinion at this late stage was likely to be a totally quixotic enterprise, and said so, but was overridden. Hawke threw himself personally into the enterprise, beginning by building on his relationship with Prime Minister Michel Rocard to persuade the French. We jointly mounted a global campaign which bore spectacular fruit with the Madrid Protocol of 1991, which effectively banned mining and exploration in perpetuity. I had to concede after the event that occasionally, just occasionally, prime ministers can have better instincts than their foreign ministers about the art of the internationally possible.

Where Hawke and I were in complete harmony – and certainly would have been with Gough Whitlam – was to employ, in 1983 when I was Attorney-General, the Commonwealth’s external affairs power under the Constitution to achieve environmental protection objectives otherwise completely within the discretion of the states. Our triumph in this respect was to harness our international treaty obligations under the World Heritage Convention to stop the Tasmanian Government destroying a magnificent wilderness area with the construction of the Gordon-below-Franklin Dam. There were some distractions along the way that some of the more grey-haired among you may remember, in which I had an early lesson that a self-deprecating sense of humour (my ‘streakers defence’ and all the rest) is a serious liability for a minister – but the High Court decision affirming our action made it all worthwhile.

United Nations Reform. ‘Contributing to global security’ was perhaps the most ambitious of all the foreign policy priorities I identified at the outset of my term as foreign minister. But, in the fertile environment of the time, I saw no reason why Australia, with its active, creative, middle power credentials, should not be at the centre of the action. We played ourselves very much into that role with the publication in 1993, and launch at UN headquarters in New York, of the ‘Blue Book’, as it became widely known, Cooperating for Peace: The Global Agenda for the 1990s and Beyond. Its 250 pages offered clear definitions of peacemaking, peacekeeping, peace enforcement and peacebuilding; identified the range of possible responses, and criteria for decision-makers, in confronting different kinds of conflict prevention and reaction situations; and made specific proposals for both process and structural reform in the UN system, Very well received though it was, the unhappy reality remains that the forces of inertia prevailed, and three decades later most of its prescriptions for international security system reform remain just as pertinent as they did then.

Of all the issues addressed in the Blue Book, the one that I have most persistently pursued over the years, but invariably without success – in the 2001 R2P report, the UNSG’s High Level Panel in the lead-up to the World Summit, and much subsequent speaking and writing – is the identification of prudential criteria for the use of military force, the satisfaction of which would make it not just formally legal, but legitimate, and not just in atrocity crime situations but cases like the 2003 Gulf War. There is now broadly discernible strong international agreement that there are five such criteria which really matter: seriousness of threat, proper purpose, last resort, proportionality, and balance of consequences. I strongly believe that the formal embrace and serious case by case application of these principles by Security Council members and other key actors would assist consensus-building and make for a safer and saner world. But, even before Trump, successive US administrations have continued to insist on what I have described as the divine right of ad-hocery, and that by-itself has been a show-stopper.

The Last Three Decades

Australia’s activist, and arguably more often than not successful, approach to international law making and enforcement during my years in office did not have the longevity I might have hoped. Throughout John Howard’s long term, which followed Labor’s from 1996 to 2007, foreign policy was dominated by the Prime Minister himself, who remained the quintessential pessimistic realist: over-focused on hard rather than soft power; deeply comfortable in following the US alliance lead wherever it took us – above all the ‘war on terror’ after 9/11 in 2001, and into Iraq without observing any international law niceties in 2003; unadventurous in seeking global or regional policy change; and (with about the only exception I can think of being its active role in bringing the Comprehensive Nuclear Test Ban Treaty (CTBT) to conclusion) profoundly uninterested in the UN and the whole idea of transnational problem-solving by creative multilateral cooperation and international law-making.

My long-serving successor as Foreign Minister, Alexander Downer, made clear his distaste both for the idea of Australia as a ‘middle’ power – to him that was demeaning, we were ‘significant’ – and for ‘good international citizenship’ as a national interest. If values mattered at all, they were our own ‘Australian’ values, not universal ones. Which was about as calculated to win hearts and minds in our own region as was Howard’s embrace of the US ‘deputy sheriff’ tag.

The later Coalition governments of Abbott, Turnbull and Morrison, in office from 2013 to 2022 after the six-year Rudd-Gillard-Rudd Labor inter-re gnum, basically followed this Howard-era playbook, although Malcolm Turnbull always claimed to have liberal internationalist instincts, and Foreign Minister Julie Bishop played a creditable role in occupying the Security Council seat which Labor Government campaiging had, against its will, bequeathed it.

Despite the political tumult of his years in office, Kevin Rudd both as Prime Minister and Foreign Minister did try to recapture much of the confident optimism of the Hawke-Keating years, with its very strong focus on multilateral cooperation, and he explicitly reinstated ‘good international citizenship’ as a central policy theme. That was most evident in his work on climate change; in building the role of the G20 in global economic management and potentially on a wider front; in creating (albeit after a few diplomatic slips along the way) important new regional architecture in the expanded East Asian Summit; and in campaigning to claw back a seat at the table for Australia in the UN Security Council.

Since regaining office in 2022, Labor under Anthony Albanese, and more particularly his highly respected Foreign Minister Penny Wong, have been largely preoccupied, with China and other players in the region, in restoring bilateral relationships which had fallen into disarray. But they have also maintained the Party’s strong traditional commitment to effective multilateralism, especially through the UN, which it has been willing to use, for example, to support criticism of egregious breaches of international human rights and humanitarian law, including by Israel. But it is not an instinctively adventurous government. It has shown no interest in maintaining ‘good international citizenship’ as a sustaining conceptual theme of its foreign policy (‘constructive internationalism’ is about as far as Penny Wong’s vocabulary will stretch in that direction). And in pursuing any more ambitious international agenda, for example on nuclear arms control, it is constrained by a global political environment which, as I said at the outset, is currently painfully resistant to any new rule-making or enforcement enterprise.

Looking Forward

The times are about as unpropitious as they could be for adventurous activity by Australia, or anyone else, in shaping constructive new international law and ensuring its most effective possible implementation. But I think there are at least three things that governments with any kind of understanding of the importance of these things should be doing.

First, internationally, keeping the flame alive – calling out egregious breaches of international law for what they are, unequivocally supporting international judicial institutions like the ICJ and ICC when they are clearly acting with integrity and within the bounds of their respective mandates, and being a consistent voice for decency in a world apparently losing its sense of what that means.

Second, domestically, embracing the substance, if not necessarily the terminology, of ‘good international citizenship’ (with respect for international law and practice at its heart) as not just a discretionary add-on, but a core national interest in its own right, just as important as our national interests in security and economic prosperity.

And third, staying optimistic, remembering that wheels do turn, presidents and prime ministers do change, and that in foreign policy, as in life itself, outlooks – both pessimism and optimism - can be self-reinforcing and self-fulfilling. If we want to change the world for the better, we must not only keep coming up with creative new solutions to particular problems, but start by believing that change is possible. That’s the challenge now for us in Australia, as everywhere else, and I hope we are up for it.