One of the greatest achievements of the post-1945 world has been the
dramatic decline in the number of traditional interstate wars. The number
of sovereign states has multiplied to almost 200, yet the vast majority of
conflicts today are civil wars. The Howard Government now proposes changes
to international law that risk seriously destabilizing this order.
A critical factor in reducing the incidence of interstate wars has been
the near universal acceptance of two cardinal rules of international law.
The first is the principle of non-intervention, which bans external
interference in the internal life of sovereign states. The second is the
principle that force may be used only in clear-cut cases of self-defence
or as part of a United Nations mandated action to preserve international
peace and security.
Since the end of the Cold War, the international community has relaxed
these rules to allow force to be used to prevent supreme humanitarian
emergencies, such as mass starvation in Somalia and ethnic cleansing in
Kosovo. But these have been tentative, inconsistent moves, and the vast
majority of states remain firmly committed to a set of rules that
contributed so substantially to the preservation of international order.
The Howard Government is now calling for the revision of these cardinal
rules. With the rise of global terrorism, we face fundamentally new
security challenges and international law must change to allow effective
responses. Robert Hill told an audience at the University of Adelaide last
week that the ‘international legal machinery is slow to adapt to these
rapidly changing circumstances---but it is important that it does’. He
argued that ‘Sovereignty is not a blank cheque’ and that the doctrine
of self-defence should be redefined. Echoing the Bush Administration, he
argued that ‘it’s time for a new and distinct doctrine of pre-emptive
action to avert a threat’.
International law is an evolving institution, and few would deny that
it should evolve to serve the changing needs of global order and justice.
However, anyone with the slightest concern for the preservation of
international peace and security must be profoundly concerned about this
latest turn in Australian foreign policy.
The principal motive behind the Government’s campaign is to create an
international legal environment that permits maximum freedom of action for
the United States and its allies in the prosecution of the ‘war against
terrorism’ and the ‘axis of evil’. One of the main goals here is to
redefine the highly circumscribed doctrines of self-defence and
non-intervention to allow two kinds of use of force. The first is the
extra-judicial killing exercised in the recent US attack with an unmanned
drone on alleged Al-Qaeda operatives in Yemen. The second is the war of
disarmament and regime change envisaged for Iraq. If the rules of
self-defence and non-intervention can be sufficiently relaxed, then it
would become permissible to conduct such actions unilaterally, outside of
the framework of the United Nations.
The dangers associated with such a move are multiple and deeply
serious. First, it has the very real potential to render the UN Security
Council irrelevant. If states are able to justify the unilateral use of
force in the name of an expanded conception of self-defence and a right of
pre-emption, the Security Council’s current role in licensing and
limiting the exercise of war will be seriously undercut.
Second, it threatens to replace the current highly successful
rule-based international order with a much more permissive environment.
One in which states need only claim that they face an imminent threat to
launch a unilateral pre-emptive war. Once the United States, Australia and
others have claimed this right, on what basis can it be denied to
Pakistan, China, Israel, North Korea, or others?
Third, the relaxation of rules of self-determination and
non-intervention may well have serious implications for the security and
stability of the Asia-Pacific region. General acceptance of these rules
has been a crucial factor in stabilizing relations among ASEAN states. Do
we really wish to see this eroded?
Finally, an international campaign by the United States and Australia
to revise the rules of self-defence to allow pre-emptive war is likely to
greatly intensify anti-Western sentiment globally. For the vast majority
of states, particularly in the developing world, the right of
non-intervention and legal restrictions on the use of force by powerful
states are seen as fundamental guarantees of their security and
independence. They can be expected to defend these norms vigorously.
The onus is on the Howard Government to explain to the Australian
people and the international community why it is worth risking these
dangers. At a very minimum, Robert Hill and other senior ministers must
answer two core questions. How, precisely, can the basic rules governing
the use of force be revised to permit genuine responses to imminent danger
while preventing the abuse of more permissive rules for purposes of
adventurism and aggrandizement? And by what mechanism should the rules be
On the latter question, the Government might argue that changes should
be made through the multilateral procedures of the United Nations. If this
is the case, it must be explained why the vast majority of the world’s
states would agree to such revisions. Alternatively, the Government might
decide that such change is best brought about through unilateral,
precedent setting actions. But this would involve using law-breaking
activity to change the law, and the Australian people are entitled to know
how the risks to international order would be averted.
The Government will soon launch a new Foreign Affairs White Paper, and
we can expect it to reaffirm Australia’s commitment to the US alliance,
the ‘war against terrorism’, engagement with our region, and
multilateral institutions, including international law. The question of
revising the core rules of self-defence and non-intervention goes to the
heart of how the Government will balance and reconcile these objectives.
It is thus a critical test of the Government’s commitment to global and