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International Law: Is Australia a Good International Citizen?

Australia has been subject to criticism for its ostensibly selective commitment to international law. This misses the larger picture of a country that has actively encouraged the development and spread of international law and has integrated it into its national law to an extent unimaginable when the first edition of International Law in Australia was published in 1965.

In recent decades, Australian governments—principally through their foreign ministers—have often asserted that Australia is a ‘good international citizen’. This assertion is often justified by referencing Australia’s commitments to the United Nations and regional institutions such as APEC and the East Asian Forum, as well as Australia’s support for a variety of global, regional, and sub-regional mechanisms and initiatives. An important component of this good international citizenship is international law, and as Australia’s standing and engagement in the international community during the UN era has grown, so too has the depth of Australia’s engagement and commitments under international law. The publication in 1965 of the first edition of International Law in Australia with support from the Australian Institute of International Affairs (AIIA) recognised this growing phenomena. The second edition in 1984 reaffirmed those developments and reflected the increasing prominence of international law in many aspects of Australian law and within Australian society.

In 2017, the significance of international law for Australia has grown further still. It has become embedded not only in Australian law—in areas as diverse as the environment, employment and industrial relations, human rights, intellectual property and national security—but also in aspects of the national psyche. The High Court of Australia’s 1983 decision in the Tasmanian Dam case was a milestone in Australian constitutional law, which paved the way for the Commonwealth Government to rely upon a treaty to enact legislation to protect the Tasmanian environment. It also brought citizens’ attention to the extent of Australia’s treaty obligations, particularly under the World Heritage Convention. Since that time, properties listed under the convention for their natural or cultural significance have become sites of global significance, including the Tasmanian Wilderness, Uluru, Kakadu National Park and the Sydney Opera House. Other examples illustrate the significance of international law for Australian commerce, law, politics and society, including Australia’s network of bilateral free trade agreements, transnational criminal enforcement mechanisms, measures for the protection of human rights, and the rights and responsibilities granted to Australia over the adjacent maritime domain.

International law has a centrality in Australian public discourse and debate that could hardly have been imagined at the time of the first edition of International Law in Australia. The collected essays at that time reflected an Australia that was finding its way in the post-war world, as the UN began to mature as an institution against the backdrop of the Cold War. Australia’s commitments in a range of international institutions, such as the United Nations, General Agreement on Tariffs and Trade (GATT), International Labour Organization (ILO) and South Pacific Commission, were properly the focus of analysis. Consideration was likewise given to developments in international law that had potential significance for Australia, such as those relating to the law of the sea, overseas territories, Antarctica and extradition. By the time of the second edition, published again with AIIA support, some of these topics were overtaken in significance by Australia’s developing treaty practices in areas such as human rights, international criminal law, defence, trade and resources, while the law of the sea had enhanced prominence following the conclusion of the 1982 United Nations Convention on the Law of the Sea.

As the third edition of International Law in Australia illustrates, over recent decades Australia has actively contributed to the expansion of international law, both in the creation of new instruments to enrich existing regimes and in expanding its reach into new fields, including international criminal law. International law has meanwhile become more integral to the Australian domestic legal system. This raises questions as to whether there is anything distinctive about the nature of Australia’s engagement with international law and, if so, how that engagement might most appropriately be characterised.

One challenge is to distinguish Australia’s broad attitude toward international law from its attitude toward specific issues. Consider the recent debate over Australian’s failure to ratify the 2007 Treaty on Extradition with China. While international lawyers might interpret this as a lack of support for international law, it appears that the parliament had strong views on the subject matter embodied in that treaty, including the human rights of those persons who may have been subject to extradition to China. The Australian government’s decision to withdraw the treaty from Senate debate avoided a potentially embarrassing deadlock between the legislature and the executive, which ultimately have the constitutional capacity to ratify treaties. It also provides more time for objections to the treaty to be addressed, including possible amendments to the Extradition Act to include additional safeguards for persons subject to extradition.

As the system of international law grows in complexity, it is reasonable to expect greater complexity in Australia’s engagement with international law. International law embodies values both more conservative and more progressive than Australian law. Yet Australia has demonstrated consistent support for a far-reaching system of international law and has undoubtedly made a valuable contribution towards realising that ideal.

In 2017, Australia is a fully fledged international actor, which sees its interests served through an international system based on international law. The third edition of International Law in Australia explores Australia’s practice in a range of contemporary areas of international law. While Australia can be rightly criticised on some issues, its self-perception remains one of a country committed to a rules-based international order; in short, to being a good international citizen.

Professor Donald R. Rothwell is head of school at the ANU College of Law.

Dr Emily Crawford is a lecturer at the University of Sydney and co-director of the Sydney Centre for International Law.

Rothwell and Crawford together edited ‘International Law in Australia, 3rd ed.’, published in 2017 by Thomson Reuters for the Australian Institute of International Affairs.

This article is published under a Creative Commons Licence and may be republished with attribution.

Published May 8, 2017