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Nguyen Tuong Van - Australia cannot stand idly by

By Mirko Bagaric - posted Tuesday, 29 November 2005

The defence team of Melbourne man Nguyen Tuong Van who is on death row in Singapore should be commended for galvanising a considerable degree of public support for their client. With less than two weeks to go before the scheduled execution, it is to be expected that they will be exploring all avenues to save their client.

However, the proposal that Australia should look to the International Court of Justice for assistance is misguided. This course of action would fail. There are two reasons for this. First, the court can only hear the case if both parties consent to it adjudicating the matter. This won’t happen. Singapore (which has the highest per capita use of the death penalty in the world) has nothing to gain by opening up its criminal justice practices to judgment by an international body.

Moreover, even if the court were conferred with jurisdiction to hear the matter, it would almost certainly rule in Singapore’s favour. Despite its futility and obvious cruelty, capital punishment is not unlawful at international law.


There are two basic types of international law: customary law and treaty law. More than 75 nations still impose capital punishment and hence it is indefensible to claim that the prohibition of the death penalty is a norm that is habitually observed out of a sense of obligation in the world setting. Further, Singapore has not ratified any international instrument which prohibits it from executing offenders who have been found guilty of an offence.

Yet the Australian Government cannot stand idly by and allow the Singaporean criminal justice system to take its inevitable tragic course.

To this end, it is important to note that considerations of moral relativity and national sovereignty should not mute the voice of the Australian Government. Moral relatively is illusory. All people are entitled to have their fundamental interests (life, liberty and physical integrity) at least minimally protected. That’s why we are witnessing a slow, but sure, convergence in fundamental moral principles across the globe.

The notion of national sovereignty has, fortunately, been beaten down by the twin forces of globalisation and the human rights movement so that it can (no) longer be invoked as an impregnable shield to justify draconian laws - a lesson that the likes of Slobodan Milosevic and Saddam Hussein have learned the hard way.

So what is the best avenue available to Australia to try to convince Singapore to grant clemency to Mr Nguyen?

There are three basic ways to get people or institutions to do what you want. Force is the crudest method but is obviously not an alternative. Even threats of imposing tangible sanctions on Singapore, such as limiting trade activities, are not likely to be effective, given our relatively minnow economic status on the world stage.


The second method of persuasion is by legitimising one’s position through the weight of numbers. This is why democracy works so well. But again this is not an option in the international arena.

The final method is the moral force of one’s arguments.

To that end, Australia is hamstrung by the fact that we are only now imploring Singapore to not apply the death penalty. This will, at least initially, have all the hallmarks of an expedient request as opposed to a principled moral stance. A fundamental aspect of all moral judgments is that they are "universalisable". This means that they apply equally to all people. It is indefensible to assert that certain people are more worthy or important than others.

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First published in the Canberra Times on November 24, 2005.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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