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Burmester, Henry --- "Civil Society and the Instigation of International Court Litigation: The Australian Experience" [2021] MelbJlIntLaw 13; (2021) 21(3) Melbourne Journal of International Law 772


Civil Society and the Instigation of International Court Litigation

Henry Burmester[1]*

This article examines the way in which the actions of civil society may influence decisions of states to institute proceedings in the International Court of Justice (‘ICJ’). In what circumstances, for instance, is a state most likely to respond to actions of domestic or international civil society constituencies by deciding to incur the diplomatic and other costs that result from any international litigation? This study focuses on Australia’s experience, using as case studies the Nuclear Tests and Whaling in the Antarctic cases. In both cases, particular civil society components were able to secure political commitments to commence international litigation from political parties that went on to be elected to government. This will not always be possible, and this article examines some of the tensions that arise between government and civil society in relation to pursuing encounters with the ICJ.


I Introduction

The role of civil society in the development and enforcement of international law has received scholarly attention in recent years.[1] There is no one definition of civil society. It generally refers to non-governmental and non-commercial actors. Much of civil society action takes place through ‘non-governmental, non-profit-making or voluntary organizations’.[2] The Commission on Global Governance, in its 1995 report Our Global Neighbourhood, stated that ‘civil society’ covers ‘a multitude of institutions, voluntary associations, and networks — women’s groups, trade unions, chambers of commerce, farming or housing cooperatives, neighbourhood watch associations, religion-based organizations, and so on’.[3] This is a very divergent group of actors and reflects the fluid nature of the category as well as the very different interests of components of civil society.

Within the United Nations system, non-government organisations (‘NGOs’) representing various civil society interests have had a large number of opportunities to participate in various treaty-making activities. They played, for instance, a major role in the negotiations for an international criminal court.[4] In some dispute resolution and compliance mechanisms, NGOs representing particular civil society interests have been accorded a significant role. One example is the European Court of Human Rights, where civil society organisations regularly participate as amici curiae.[5]

This article considers the role of civil society in the institution of international legal proceedings, particularly at the International Court of Justice (‘ICJ’). The ICJ only deals with interstate disputes or provides answers in advisory opinions following requests from organs of the UN or specialised agencies.[6] In discharging these functions, there is, therefore, no scope for civil society to initiate proceedings or to be separately represented. No amicus role is accorded to civil society in contentious proceedings between states in the ICJ.[7] In relation to advisory opinions, the ability of civil society to provide information is also very limited.[8] This does not mean, however, that civil society has no relevance when it comes to ICJ proceedings. For instance, civil society may be able to provide material that a state can incorporate into its submissions in a case before the Court. In the Gabčikovo–Nagymaros Project case, a brief prepared by two NGOs was submitted as part of Hungary’s submission.[9] In the case brought by Belgium against the Democratic Republic of the Congo, Belgium submitted a lengthy memorandum on universal jurisdiction by Amnesty International.[10] Also, a component of civil society may find itself seeking the protection of a state in the form of international adjudication against another state for injuries done to persons or property owned by civil society. This occurred, for instance, in both the Arctic Sunrise Arbitration[11] and the Rainbow Warrior Affair[12] cases.

This article takes a narrower focus — the roles that civil society actors have taken, or may be able to take, in relation to promoting and encouraging states to commence ICJ litigation. It does this by looking at the broad range of civil society actors that were involved in issues associated with the Nuclear Tests[13] and Whaling in the Antarctic (‘Whaling’)[14] cases brought by Australia. The first case opposed French atmospheric nuclear tests. The second opposed so-called scientific whaling by Japan in the Southern Ocean.

In a situation where civil society cannot directly be a party to ICJ proceedings, a number of questions arise as to how civil society groups can best seek to engage with the Court in the pursuit of their particular objectives. One necessary element is convincing a state to engage with the Court in a way that might help to secure an objective shared by both a state and a component of civil society. In pursuing such a course, a number of questions arise. These include:

· Should civil society encourage a state to initiate international litigation against another state? If so, when and how?

· Are there particular areas of law where civil society can be most effective in promoting international litigation?

· Are there strategies that civil society can adopt that may make states more receptive to initiating international litigation?

· What risks or considerations are there for a state to consider if faced with pressure from civil society to institute legal proceedings? In particular, how might the likely different expectations and desired outcomes of civil society and a particular state be best managed?

This article seeks to explore these questions by reference to Australia’s experience as applicant in two cases before the ICJ. The cases have similarities and differences. However, they point to the limited circumstances in which civil society groups will be likely to be able to convince a state to institute proceedings. Securing a firm political commitment is critical. Having broad public opinion on side is also important. Once proceedings are instituted, there will be little opportunity for any further input from civil society to the proceedings, as the state concerned will want to be clearly in charge of how it runs the case. The cases also highlight that civil society groups are not necessarily likely to be willing to stop the broader pursuit of their objectives while a state pursues a possible legal remedy. This means that there are likely to be tensions between at least some components of civil society and a state as the encounter with the ICJ occurs. The article then seeks to draw some more general conclusions about the role of civil society in relation to the institution of proceedings. It concludes that any role in this regard is likely to be limited and exceptional and may not be the best way for any component of civil society to pursue its objectives.

II The Role of Civil Society in Practice: Case Studies

A Preliminary Comments

Some preliminary observations on the similarities and differences in the two cases instituted by Australia in the ICJ help to highlight the way in which civil society interacted with government in the process of securing a commitment to initiate legal action against France and Japan, respectively.

In both cases, civil society managed to get a policy commitment from the main Opposition (non-government) political party (Australian Labor Party) to initiate international litigation. This was secured shortly before elections, which in both cases saw the Opposition elected to govern. The new governments then implemented their pre-election policy commitments. In the case of the Nuclear Tests case, this occurred within a few months of the December 1972 election. Hastily arranged consultations between French and Australian scientists and Ministers showed that there was no likelihood of agreement to a cessation of the tests. Proceedings were then instituted without further delay in May 1973.[15] Australia sought support for this action from other states in the Pacific. As a result, New Zealand brought similar proceedings at the same time,[16] and Fiji lodged an application to intervene in both cases.[17]

Contrast this with the Whaling case, where the government took much longer after it formed government in December 2007 — until May 2010 — to institute proceedings.[18] This followed a sustained attempt at seeking diplomatic solutions to avoid having to initiate the ICJ proceedings.[19] Domestic political pressures drove the decision to start proceedings finally and to reject a compromise that had begun to emerge within the International Whaling Commission (‘IWC’).[20] In both cases, the prior policy commitment to institute proceedings was critical. In its absence, there is far less likelihood that the cases would have been initiated. In this case, New Zealand only sought to intervene.[21]

These two cases have some other similarities. They could both be characterised by Australia as environmental, although neither France nor Japan would have agreed with that characterisation. Both cases were directed at states with whom Australia enjoyed longstanding, close relationships. The issues raised by the cases were, however, the subject of widespread public opposition in Australia to the actions of France and Japan respectively.[22]

The differences between the two cases are also quite marked. They occurred in two quite different eras — the Nuclear Tests case took place when international environmental law was just beginning to develop, following the adoption of the Declaration by the United Nations Conference on the Human Environment at Stockholm in 1972.[23] The Cold War was still on foot, and France saw the case as a direct attack on its national defence strategy, given that the case challenged an essential element in developing its nuclear deterrence capability. As a result, while this case lasted, relations between Australia and France were severely strained. Civil society, both prior to and during proceedings, waged its own campaign against France, with union bans on shipping and postal services and other protest actions.[24] However, the strength of public opposition to French atmospheric testing activities at the time the case commenced had been a relatively recent occurrence.[25]

The Whaling case came after a long running deadlock in the IWC between states that wanted no whaling and those like Japan that supported a resumption of commercial whaling. Japan withdrew its objections to the 1984 moratorium on commercial whaling in 1987–88[26] but had, since 1988, conducted what purported to be scientific whaling as allowed by art VIII of the International Convention for the Regulation of Whaling (‘ICRW’).[27] Some elements of civil society, particularly through the Sea Shepherd Conservation Society, had been actively seeking to disrupt Japanese Antarctic whaling over several seasons.[28] Australian policy and public opinion opposed any lethal whaling.[29]

The instigation of the litigation did not disrupt relations with Japan in the same way as happened with France. The Whaling case proceeded without any major breakdown in all the other relationships between Australia and Japan. This was certainly not the case with France during the Nuclear Tests case. A closer examination of the role of civil society in relation to the two cases follows.

B The Nuclear Tests Case

In the early 1970s, the role of civil society in the area of international law was much less developed than it is today. In relation to nuclear testing, civil society groups like peace and labour organisations concentrated on increasing public awareness of the dangers of such testing. In relation to Australia’s action against France, it was the state Labor governments of Tasmania, South Australia and Western Australia that propelled possible ICJ action into the spotlight. They did this by commissioning legal opinions from Professor DP O’Connell, who was at the time moving from the University of Adelaide to the University of Oxford. These opinions were obtained in September and October 1972. They were then provided to the McMahon Coalition government and the then Labor Opposition.[30] The first O’Connell opinion[31] dealt with jurisdictional issues and indicated a solid basis upon which Australia could rely in this regard, based in particular on the 1928 General Act (Pacific Settlement of International Disputes).[32] On the substantive issues, the second opinion was fairly sparse and focused more on issues of the freedom of the high seas than environmental damage. It recognised, however, the need for evidence of the impact of the tests if any preliminary injunction was to be sought.[33] In November 1972, in the policy statement for the forthcoming election, a commitment was made by the federal Labor Party to take the question of French atmospheric nuclear testing to the ICJ.[34]

The decision of the state Labor governments to obtain the opinions and the relatively prompt commitment by the federal Labor Party to bring proceedings against France was based on the dramatic shift in public opinion against French nuclear testing that had occurred in 1972 in Australia and among the Pacific Ocean countries. France had conducted atmospheric tests at its Pacific testing site at Mururoa atoll since 1966.[35] Three French tests in 1972 had, as a Department of Foreign Affairs policy planning paper observed at the time, provoked public reaction in Australia that ‘was unprecedented for its intensity, scale and speed with which it developed’.[36] The paper continued: ‘The protest in 1972 was also remarkable for the degree to which individuals and NGOs were prepared to translate convictions into actions.’[37] Damage was caused to houses of French embassy personnel, and there was an unsuccessful attempt to burn the French consulate in Melbourne. Protest actions and boycotts had been taken against French commercial enterprises and products like champagne. As the paper went on to say:

[P]ublic reaction in 1972 to French tests was indicative of a significant change in national priorities, in particular a deep concern with environmental issues based on a greater awareness of the risks of disrupting the normal atmospheric and ecological balance.[38]

In the case of atmospheric nuclear tests, the growing realisation of environmental harm from such testing combined with broader environmental awareness helped to change the public mood. Civil society, particularly the unions who had supported direct action such as boycotts of French goods, had had a major influence in shaping this strong opposition to further French testing. This had then been picked up on by the state Labor governments and then the Labor Party itself.

The diplomatic response to this change in public opinion was to look at possible measures against France that Australia could take to bring home its displeasure at France’s continued testing. One such measure was securing support in the UN against the continued testing. In November 1972, the General Assembly passed, by a large majority, a resolution strongly condemning continued atmospheric testing.[39]

The reaction of government lawyers to possible international litigation was initially fairly cautious. New Zealand government lawyers had made an initial study of possible legal action in July 1972 but warned that the wrong outcome from uncertain proceedings could weaken the way in which international environmental law was then beginning to develop, highlighted by the recent Stockholm Conference.[40]

In Australia, the Attorney-General’s Department scrutinised the O’Connell opinions and did preliminary research. The Secretary of that Department, Clarrie Harders, expressed caution, but, at the same time, the Labor Party policy commitment was given serious attention.[41] This meant that when Gough Whitlam was elected Prime Minister in early December 1972, the Attorney-General’s Department and the Commonwealth Solicitor-General were able to respond quickly, meeting later that month in London with Professor O’Connell and Sir Eli Lauterpacht QC, who had been identified as a suitable counsel with ICJ experience.[42] The provision of the legal opinions by the state governments was important in focusing departmental attention on possible litigation. However, unlike with the issue of whaling, the legal opinions were not obtained by the state governments as part of a coordinated strategy by relevant civil society groups. Civil society was more focused on direct action such as protests and boycotts. Nor did the opinions do very much more than provide an outline of a possible legal case.

A review of the lead up to the active pursuit by government of possible international legal action in relation to nuclear testing demonstrates the importance of civil society in forming public opinion. The strength of public opposition to French testing meant that a state like Australia was prepared to contemplate international legal action against France. The union movement and state Labor governments were critical in this regard. The various protest actions meant that when, after its election, the Whitlam government decided to institute proceedings, it knew that it was responding to a groundswell of public opposition to the atmospheric nuclear tests. This opposition was expressly referred to in the Australian request seeking provisional measures of protection from the ICJ.[43]

At the same time, the detail of the legal action remained very much to be worked out after the commitment to legal action was made. O’Connell did not deal, for instance, with evidence of possible harm from radioactive fallout. While he recognised its relevance, he had not been briefed with material on this.

The extent of harm nevertheless became a critical issue in whether Australia’s substantive case would succeed, including whether it would be able even to obtain provisional measures of protection. This was recognised in the joint opinion by Lauterpacht and O’Connell that emerged from their meeting with the Australian Solicitor-General in December 1972. They considered that Australia would, in all likelihood, succeed in obtaining interim measures of protection if ‘the scientific evidence shows that there is a real likelihood that more than negligible quantities of pollution may occur to or over Australian territory’.[44] Yet the actual extent of harm arising from the tests was something that civil society at the time had not closely examined, simply assuming that there must be harm.

An examination of the historical record prior to 1973 reveals constantly reassuring statements by Australian government scientific bodies, downplaying the potential effect of the radioactive fallout in Australia from the French tests.[45] The National Radiation Advisory Committee had reported on each series of French tests but had never assessed the cumulative impact of the radioactive fallout from the tests.[46] One of the first steps taken by the Whitlam government was to commission a report from the Australian Academy of Science and invoke the work of the reputable United Nations Scientific Committee on the Effects of Atomic Radiation.[47] This enabled Australia, when it came to argument before the ICJ in May 1973, to point to the possibility of damage to Australia, and the Court found that the possibility of such damage could not be excluded.[48]

This evidentiary aspect highlights a concern that I have from my experience as a government lawyer: the tendency of civil society proponents of international litigation to emphasise the formal and theoretical aspects of a case and to leave largely unanalysed the evidentiary material that forms an essential part of any potentially successful case. While civil society (or state governments) may not have the same resources as a national government, they cannot, in my view, properly promote the enforcement of international law simply by advocating the idea of international law proceedings in relation to a particular matter. If civil society groups want their advocacy for international proceedings in a particular area to be taken seriously by governments, they at least must address, at a basic level, the evidentiary material that may support the proposed case.

In the Nuclear Tests case, the initial idea of international litigation came from state governments rather than civil society itself. The state governments, however, effectively did little more than put the idea out in the public arena, but they found an enthusiastic supporter in Prime Minister Whitlam. This was a critical factor. Having such a high-level supporter on hand will not be always the case. Civil society, in that instance, was not the main driver of litigation. They left it to government to take the idea seriously and to build an effective case. The focus of civil society in relation to French nuclear testing remained principally direct protest action.

C The Whaling Case

The various roles of civil society in the lead up to the institution of action by Australia against Japan in the ICJ in relation to whaling have already received some analysis in the academic literature.[49]

Anthony Moffa identifies two types of NGO activism in relation to anti-whaling campaigns in the Southern Ocean. One he calls ‘interventionist activism’, which involves either borderline or blatantly illegal tactics to confront violators of international law directly.[50] This describes the actions of particularly the Sea Shepherd Conservation Society, which sent ships to harass Japanese whaling vessels.[51] That is one aspect of civil society at work. Moffa defends this type of action in the whaling context as

the best possible actualization of the international community’s environmental commitments. Interventionist activism has helped to stop a practice in commercial whaling that the global community has long condemned but that formal legal disapprobation has done nothing to curb.[52]

The role of civil society in relation to whaling that is more relevant for the purposes of this study is the other type of NGO activism, which Moffa terms ‘protest activism’. This consists of ‘publicly organized, undoubtedly legal activities meant to put indirect pressure on the governmental or private entities that are purportedly violating international law’.[53] The Humane Society International, for instance, brought domestic legal proceedings in Australia against a Japanese whaling company.[54] Other significant civil society actions involved the commissioning of legal opinions by the International Fund for Animal Welfare (‘IFAW’)[55] on the legality of Japanese whaling.[56]

Donald Rothwell has observed that the international legal strategy promoted by IFAW was one ‘that had both a global reach, but increasingly began to focus on Australia and New Zealand’.[57] Between 2006 and 2009, IFAW sponsored four international legal panels to consider various legal aspects related to scientific whaling under the ICRW.[58] These various panels comprised leading international law experts, including Professors Philippe Sands and Laurence Boisson de Chazournes, who both later became part of Australia’s legal team in the case.[59]

The first panel, the Paris Panel, which reported in May 2006, looked generally at the requirements for scientific whaling and whether the conduct of some members of the IWC was lawful under the requirements of the ICRW and under other treaties, including the United Nations Convention on the Law of the Sea,[60] the Convention on Biological Diversity[61] (‘Biodiversity Convention’) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (‘CITES’).[62] The report concluded that the actions of Japan under JARPA II, the second phase of the Japanese Whale Research Program, were not consistent with these conventions.[63] It considered that there was strong evidence that the ‘scientific whaling’ conducted by some IWC members did not meet the requirements for the exemption for such whaling provided by the ICRW.[64] The Panel relied very much on IWC materials to found its conclusions. The Paris Panel did not address directly the question of whether any states would be able to bring ICJ proceedings against Japan, except to say that other states party to the IWRC would have standing to do so.[65] The Paris Panel report was made publicly available.[66]

A second panel in December 2006 (titled the ‘Sydney Panel’), comprising Australian international lawyers, specifically considered the legality of Japanese whaling in the Antarctic and the options for Australia and New Zealand to pursue international legal proceedings against Japan. ICJ proceedings were only one option considered in that opinion.[67] The Paris and Sydney Panel reports were used by conservation and animal welfare groups to urge the Australian Labor Party to look at international legal action.[68] Peter Garrett, the Opposition spokesperson for the environment, played a key role in securing the inclusion, in April 2007, of a commitment to pursue legal action against whaling nations in international courts and tribunals in the Labor Party National Platform.[69] In May 2007, Garrett specifically endorsed advice from the Sydney Panel as making a ‘forceful case’ to take Japan to international courts.[70] By the time of the election in November 2007, the Labor Party had supported legal action against Japan and by December had promised to send a vessel to the Antarctic to monitor Japanese whaling activity.[71]

Another legal panel (the ‘London Panel’) in November 2007 provided an opinion on whether the taking of sei and humpback whales was consistent with CITES. The final panel (the ‘Canberra Panel’) in January 2009 looked at ways in which Japanese whaling activities might be scrutinised through the Antarctic Treaty system.[72]

The IFAW had, then, a broad, well-developed strategy to use legal opinions to help focus the attention of IWC members, in particular on potential legal arguments and legal options in different fora that might be used to bring pressure to bear on Japan over its so-called scientific whaling. The campaign identified Australia and New Zealand as potential litigants and worked to convince those governments to consider taking international legal action against Japan.

Rothwell maintains that it is not possible to identify ‘the precise impact of IFAW’s advocacy’ on the decision to institute proceedings against Japan.[73] However, Rothwell concludes that, on the basis of

the connection between the international legal opinions considered in the Paris and Sydney Panel reports, and the fact that three members of the Paris Panel were also members of the legal team that represented Australia in the ICJ against Japan, it can be assumed that IFAW’s work in developing and promoting the legal case against Japan not only influenced the Australian government to commence proceedings ... but also found its way into the actual legal argument that Australia developed and presented to the ICJ ...[74]

It seems, as already indicated, that the Paris and Sydney reports played a part in convincing key Labor Party leaders to commit to taking proceedings against Japan. Some of the conclusions of the Paris Panel as to possible breaches of international law can be seen reflected in general terms in Australia’s application instituting proceedings. Australia deliberately avoided any reliance on the United Nations Convention on the Law of the Sea, but the application did invoke the Biodiversity Convention and CITES, mentioned in the Paris report, as well as the ICRW.[75]

However, Australia devoted considerable resources to securing and considering its own legal advice once the Rudd government was elected. This enabled Australia to determine that the ICJ was the preferable forum and devise a case that avoided raising sensitive issues concerning the interaction of The Antarctic Treaty with the United Nations Convention on the Law of the Sea. As a claimant state to territory in the Antarctic and party to The Antarctic Treaty, Australia did not want an international tribunal examining the basis of its claim. As work on the case developed and government lawyers, led by the Solicitor-General, and other legal advisers were focused on the issues, the case became a much more sophisticated construct than the raw outline of a possible case provided in the legal opinions of civil society. This was particularly so in relation to the key issue of establishing that what Japan was doing was not ‘scientific whaling’ within the meaning of the ICRW. The legal team was carefully chosen, having regard to the range of skills and experience required. The fact that some of the team had been previously associated with the Paris Panel was not relevant in selecting them.[76]

The legal advice obtained by IFAW was an effective way in which civil society could promote international legal action with a number of states and recommend new options outside the deadlocked IWC. But an essential further step in Australia’s decision to institute proceedings was the ability of civil society groups to secure a commitment from the then Opposition Labor Party to take Japan to the ICJ. Without securing this, the attempt by civil society to get Australia to take international proceedings is unlikely to have succeeded. As Rothwell describes, in the period from 2005 to 2007, IFAW worked through the media and other channels to obtain an endorsement from the Labor Party of the idea of ICJ action. By contrast, the then Howard Coalition government, which was in office from 1996 to 2007, had eschewed such action in favour of continued diplomacy.[77] The New Zealand government was also far from convinced about the desirability of such proceedings.[78] There was certainly a view held by many observers that success for Australia with any case against Japan was unlikely.[79]

As with the O’Connell opinions in the Nuclear Tests case, the main IFAW opinions did not analyse in any detail the significant evidentiary issues that proved critical to Australia’s ultimate success before the ICJ. A great deal of further work was done within government on evidentiary issues once proceedings were seriously contemplated.

III The Potential Role for Civil Society in International Court Litigation

This account of the role of civil society in relation to the instigation of proceedings by Australia in the ICJ against France and Japan points to a number of lessons for both civil society and states.

As to civil society, there may be opportunities for civil society to promote international legal action in certain areas, such as the environmental area, where there may already be strong domestic public opinion in opposition to particular policies of other countries. However, promotion of international legal action in the absence of already well-established public opinion opposed to the particular activity means that it will be difficult to persuade a government to commence litigation. Strong public opinion existed in relation to both cases brought by Australia. That alone will not be enough, however. In both cases, securing a political commitment from a party sympathetic to international dispute settlement and about to be elected to government was critical.

Civil society also needs to consider what possible outcomes (direct and perhaps also unanticipated) may actually result from particular litigation and whether litigation is the best, or most worthwhile, action. If civil society wants its role in promoting the enforcement of international law to be taken seriously, it cannot leave it to states alone to weigh the broader consequences of particular litigation. Civil society also needs to consider the broader context and not just the particular issue. The resources of civil society may be better deployed in other activities in order to build support for a particular position in relation to an issue.

In both Australian cases studies, one consequence of the litigation was that the commitment of the defendant states to international dispute settlement was weakened. France withdrew its acceptance of the ICJ’s jurisdiction under the optional clause and the General Act (Pacific Settlement of International Disputes) that Australia had relied upon.[80] Japan made a revised optional clause declaration so that no further case in relation to whaling could be brought in reliance on that source of jurisdiction.[81] Was that worth the outcomes achieved in both cases? Litigation is not always the optimal approach.

As for states, they need to be cautious about embracing international litigation promoted by particular civil society groups. If civil society groups are to play a greater role in international litigation, states will need to institute some system of evaluating the credentials of particular groups. Smaller states that may not have the legal resources of larger states will need to be careful not to allow themselves to be captured by elements of civil society.

Every state needs to assess the risks and costs of particular litigation carefully in the light of their particular national interests. It is the state that appears before the ICJ and is responsible for the conduct of the case. The Court may not appreciate being used by civil society, barely disguised behind a plaintiff state. This has been evident in the advisory opinion context, particularly in relation to the requests for opinions by the World Health Organization (‘WHO’) and the UN General Assembly in relation to Legality of the Use or Threat of Nuclear Weapons. In that case in 1996, Judge Guillaume in his separate opinion ‘wondered whether ... the requests for opinions could still be regarded as coming from the Assemblies which had adopted them’ (ie from the WHO and the UN General Assembly).[82] He concluded that the bodies still retained sufficient independence and no one had taken any objection based on the role of the particular organisation behind securing the decisions.[83] Judge Guillaume referred specifically in this regard to the International Association of Lawyers Against Nuclear Arms, who had launched a project in 1992 in order to obtain a declaration from the Court.[84] While lobbying by NGOs had clearly led to the requests for opinions — as Rosalyn Higgins has said, clearly not sharing the concerns of Judge Guillaume — ultimately, it is up to the members of the relevant international organisation whether they act on the lobbying by civil society groups.[85]

As Rothwell observes,

[a]ny government would be careful to not be seen to have been influenced into making such a decision by external forces such as NGOs. In particular, a government would not wish to be seen to be completely adopting independent legal advice commissioned by an NGO advocating the merits of international litigation.[86]

This comment recognises that a state needs to consider a whole range of issues before deciding to commence litigation against another state.[87] Civil society can focus on a particular issue and can suggest that the legal issue is clear-cut or that a reasonable case exists. However, that is not all that a state needs to consider. It will need to consider the impact on its bilateral relations with the other state and the likely impact of the proceedings on broader issues, such as the likely consequences of the proceedings on international law more generally.[88] Obviously, some civil society groups may have more ability to influence a particular state than other groups. States themselves have to make the ultimate decision whether to commence proceedings, considering a wide range of considerations.

The Australian governments involved in the two decisions to institute proceedings in the ICJ were conscious of the diplomatic and other costs. While the Labor Party in both cases had made commitments to commence proceedings, once in government they sought detailed legal advice and explored diplomatic solutions. In the Whaling case, this diplomatic action occurred over several years in the IWC and bilaterally, reflecting some reluctance to make good on the policy commitment. There was certainly pressure from diplomatic and other areas of government not to pursue what was seen by some as a risky case. Ultimately, once Australia concluded that reform through the IWC was unlikely to stop Japanese whaling in the Southern Ocean, the decision was taken to commence proceedings so as to be seen to fulfil the election commitment.[89]

One matter that a state needs to consider when contemplating proceedings is the best and worst possible outcomes of any such proceedings. In the Nuclear Tests case, the success in obtaining provisional measures of protection secured an early positive outcome. It did not guarantee ultimate success if the case went to the merits. Ultimately, it was the decision of France that its national defence no longer required further atmospheric tests that brought proceedings to a halt. That decision by France provided a convenient basis on which the ICJ could deem the case moot and bring it to an end,[90] avoiding the Court having to grapple with difficult issues about the newly emerging international environmental law, which may not have gone in Australia’s favour. The Court case may or may not have played a small part in the French decision to cease testing in the atmosphere. Certainly, France denied that it had played any part.[91] The case severely affected relations between Australia and France and led to France withdrawing its optional clause declaration.

In the Whaling case, it was clear from the beginning that the legal action could not stop all whaling, even though that was the position supported by the Australian public and the government. The best that the case could do was to stop the so-called scientific whaling then being undertaken by Japan. After the ICJ found Japan’s current program did not involve ‘scientific whaling’, Japan revised the design of its program and resumed its so-called scientific whaling.[92] It also revised its acceptance of the ICJ’s jurisdiction under the optional clause, so that no further proceedings related to its whaling program could be brought. It has now ceased whaling in the Antarctic entirely and has also withdrawn from the ICRW so that any whaling it undertakes is no longer subject to the constraints of that treaty.[93]

The role of civil society more generally after proceedings have been instituted is also worth mentioning. Contributions to or as part of a state’s legal case are one thing. A more problematic situation arises if some components of civil society continue to pursue ‘interventionist activism’ after proceedings have commenced. This can make the task of the government bringing the case more difficult. In relation to the Nuclear Tests case, relations between the Australian government and unions became strained after the unions decided to press ahead with union bans against France at the time that Australia’s case for provisional measures was being heard. Prime Minister Whitlam told the Australian Council of Trade Unions that a ban on shipping, communications and manufactured goods would harm Australia’s case and appealed to them not to proceed with the bans. This call was not heeded.[94]

In the Whaling case, there was far less direct protest activity while the case proceeded than in earlier years. However, the Australian government tried to avoid unlawful protest actions by vessels that used Australian ports, concerned that such actions could potentially give Japan a basis to counterclaim against Australia and divert attention away from the main claim against Japan. The actions of the Sea Shepherd Conservation Society that had engaged in much ‘protest activism’ were of particular concern.[95] Once proceedings were commenced, civil society generally sought to work with the Australian government during the legal proceedings. For instance, the Humane Society International did not bring contempt proceedings against the Japanese whaling company that was found to have breached Australian domestic law in 2008 until after the conclusion of the ICJ case.[96] This avoided any focus, while the ICJ action proceeded, on Australia’s claims over Antarctic waters that formed the basis of the successful domestic court action.

IV Conclusion

This article has examined the role of civil society in relation to the institution by states of ICJ proceedings. The circumstances where there will be a significant role for civil society in this regard are likely to be limited. There needs to be a suitable legal issue and potential jurisdiction. This will rarely be the case. Even if they exist, a campaign by civil society seeking to promote such proceedings is only likely to succeed if there is already strong public opinion on the issue that is the subject of the proposed proceedings. That alone is not enough.

For a state to go to the ICJ and be successful requires:

· hard and compelling evidence;

· persuasive argument;

· political backing to bear the costs, both relational and financial;

· good timing;

· a strong and dedicated legal team; and

· an element of chance.

Civil society needs to recognise the importance of all these elements. It will have to contend with the natural caution of governments when it comes to possible international legal proceedings. It also has to recognise that the interests of governments are likely to be quite different from the narrow objectives of a particular civil society component.

If civil society does want to promote international litigation on a particular topic, it must go further than simply positing the idea of litigation and expecting governments to take up the issue. Civil society needs to carefully assess the possible legal case and provide the relevant state with well researched legal advice. It can be argued that the energy and limited resources of civil society available in relation to the promotion and enforcement of international law can best be directed in most instances at actions other than ICJ proceedings between states. However, as this study shows, there will be occasional instances where the work of civil society in promoting ICJ proceedings can be important in pushing governments to seriously consider such an option. However, in both case studies, the real achievement of civil society was in securing a political commitment to take international dispute settlement action from a party about to be newly elected to government that was ideologically sympathetic to the use of international dispute settlement mechanisms. That is not likely to be a common occurrence. Yet without that, it is doubtful that either case would have proceeded.

* AO, QC, Honorary Professor, Australian National University College of Law; former Chief General Counsel in the Australian Government Solicitor and, prior to that, head of the Office of International Law in the Australian Attorney-General&#82[1]s Department; a member of Australia’s legal teams in all its contentious cases before the International Court of Justice, including the cases that are used as case studies in this article. The views expressed represent the personal views of the author.

[1] See, eg, Barbara K Woodward, Global Civil Society in International Lawmaking and Global Governance: Theory and Practice (Martinus Nijhoff Publishers, 2010); Jean d’Aspremont (ed), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge, 2011); Steve Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100(2) American Journal of International Law 348.

[2] Woodward (n 1) 71.

[3] Commission on Global Governance, Our Global Neighbourhood: The Report of the Commission on Global Governance (Oxford University Press, 1995) 32, quoted in Mónica Pinto, ‘NGOs and the Inter-American Court of Human Rights’ in Tullio Treves et al (eds), Civil Society, International Courts and Compliance Bodies (TMC Asser Press, 2005) 47, 47.

[4] Woodward (n 1) 233–5.

[5] See generally Rachel A Cichowski, ‘Civil Society and the European Court of Human Rights’ in Jonas Christofferson and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford University Press, 2011) 77.

[6] Statute of the International Court of Justice arts 34, 65.

[7] Eduardo Valencia-Ospina, ‘Non-Governmental Organizations and the International Court of Justice’ in Tullio Treves et al (eds), Civil Society, International Courts and Compliance Bodies (TMC Asser Press, 2005) 227.

[8] See Statute of the International Court of Justice art 66; International Court of Justice, Practice Direction XII (promulgated 30 July 2004); Woodward (n 1) 337–40.

[9] See Woodward (n 1) 337.

[10] See Dean Zagorac, ‘International Courts and Compliance Bodies: The Experience of Amnesty International’ in Tullio Treves et al (eds), Civil Society, International Courts and Compliance Bodies (TMC Asser Press, 2005) 11, 15.

[11] Arctic Sunrise Arbitration (Netherlands v Russia) (Award on Merits) (Permanent Court of Arbitration, Case No 2014-02, 14 August 2015).

[12] Rainbow Warrior Affair (New Zealand v France) (Ruling) (1986) 19 RIAA 199.

[13] Nuclear Tests (Australia v France) (Provisional Measures) [1973] ICJ Rep 99 (‘Nuclear Tests (Australia v France) (Provisional Measures)’); Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253 (‘Nuclear Tests (Australia v France) (Judgment)’).

[14] Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226.

[15] ‘Application Instituting Proceedings’, Nuclear Tests (Australia v France) (International Court of Justice, General List No 58, 9 May 1973).

[16] ‘Application Instituting Proceedings Submitted by the Government of New Zealand’, Nuclear Tests (New Zealand v France) [1973] II ICJ Pleadings 3.

[17] ‘Application for Permission to Intervene Submitted by the Government of Fiji’, Nuclear Tests (Australia v France) [1973] I ICJ Pleadings 149; ‘Application for Permission to Intervene Submitted by the Government of Fiji’, Nuclear Tests (New Zealand v France) [1973] II ICJ Pleadings 89.

[18] ‘Application Instituting Proceedings’, Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (International Court of Justice, General List No 148, 31 May 2010) (‘Application Instituting Proceedings, Whaling in the Antarctic’).

[19] Shirley V Scott, ‘Australia’s Decision to Initiate Whaling in the Antarctic: Winning the Case versus Resolving the Dispute’ (2014) 68(1) Australian Journal of International Affairs 1, 10.

[20] Ibid.

[21] ‘Declaration of Intervention of the Government of New Zealand’, Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (International Court of Justice, General List No 148, 20 November 2012).

[22] On France, see below nn 36–8; on Japan, see Scott (n 19) 9.

[23] Report of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14/Rev.1 (1973) ch 1 (‘Declaration of the United Nations Conference on the Human Environment’).

[24] See, eg, David Solomon, ‘ACTU Bans All Things French in Australia’, The Canberra Times (Canberra, 16 May 1973) 1.

[25] See below n 37 and accompanying text.

[26] International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948) sch para 10(e) (‘ICRW’).

[27] Ibid art VIII.

[28] Gerry Nagtzaam and Douglas Guilfoyle, ‘“Ramming Speed”: The Sea Shepherd Conservation Society and the Law of Protest’ [2018] MonashULawRw 12; (2018) 44(2) Monash University Law Review 360.

[29] Scott (n 19) 8–9.

[30] Henry Burmester, ‘Sir Elihu Lauterpacht QC and the Nuclear Tests Case(2018) 35 Australian Year Book of International Law 41, 42 (‘Sir Elihu’).

[31] Legality of French Nuclear Tests in the Pacific (National Archives of Australia, A432, 1972/3396 PART 1) 267–91.

[32] General Act (Pacific Settlement of International Disputes), opened for signature 26 September [1929] LNTSer 220; 1928, 93 LNTS 343 (entered into force 16 August 1929) (‘General Act’).

[33] Legality of French Nuclear Tests in the Pacific (n 31) 118–96.

[34] Gough Whitlam (Speech, Blacktown, New South Wales, 13 November 1972) <>, archived at <>.

[35] Nuclear Tests (Australia v France) (Judgment) (n 13) 258 [17].

[36] Legality of French Nuclear Tests in the Pacific (n 31) 259.

[37] Ibid.

[38] Ibid.

[39] Urgent Need for Suspension of Nuclear and Thermonuclear Tests, GA Res 2934 (XXVII), UN GAOR, 27th sess, 2093rd plen mtg, Supp No 30, UN Doc A/RES/2934(XXVII) (29 November 1972) 17; UN GAOR, 27th sess, 2093rd plen mtg, UN Doc A/PV.2093 (29 November 1972) 4–5.

[40] Legality of French Nuclear Tests in the Pacific (n 31) 56–61.

[41] Ibid 206–7.

[42] Burmester, ‘Sir Elihu’ (n 30) 42–3.

[43] ‘Request for the Indication of Interim Measures of Protection Submitted by the Government of Australia’, Nuclear Tests (Australia v France) [1973] ICJ Pleadings 43, 56 (‘Australian Request for Provisional Measures’).

[44] Burmester, ‘Sir Elihu’ (n 30) 45.

[45] Ibid 47. See, eg, ‘Application Instituting Proceedings’ (n 15) 57 (annex 10).

[46] ‘Australian Request for Provisional Measures’ (n 43) 54.

[47] Ibid 54–5.

[48] Nuclear Tests (Australia v France) (Provisional Measures) (n 13) 105 [29].

[49] See, eg, Donald R Rothwell, ‘The Antarctic Whaling Case: Litigation in the International Court and the Role Played by NGOs’ (2013) 3(2) Polar Journal 399; Anthony LI Moffa, ‘Two Competing Models of Activism, One Goal: A Case Study of Anti-Whaling Campaigns in the Southern Ocean’ (2012) 37(1) Yale Journal of International Law 201; Scott (n 19). See also Shirley V Scott and Lucia Meilin Oriana, ‘The History of Australian Legal Opposition to Japanese Antarctic Whaling’ (2019) 73(5) Australian Journal of International Affairs 466.

[50] Moffa (n 49) 203.

[51] Ibid 209–13.

[52] Ibid 213. For an analysis of the actions of the Sea Shepherd Conservation Society against the rules of international law, see Nagtzaam and Guilfoyle (n 28).

[53] Moffa (n 49) 203. For an analysis of the different forms of action that may be taken by environmental NGOs, see Peter J Spiro, ‘Non-Governmental Organizations and Civil Society’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008) 770.

[54] See Scott and Oriana (n 49) 474–6; Rothwell (n 49) 404 n 33.

[55] IFAW is one of the largest animal conservation NGOs working in more than 40 countries. See ‘Our Approach’, International Fund for Animal Welfare (Web Page) <>, archived at <>.

[56] Rothwell (n 49).

[57] Ibid 405.

[58] Ibid.

[59] Ibid 405 n 38. Kate Cook, who was Rapporteur for the Paris Panel, was added to the Australian team just before oral proceedings.

[60] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).

[61] Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993).

[62] Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975).

[63] Laurence Boisson de Chazournes et al, Report of the International Panel of Independent Legal Experts on: Special Permit (‘Scientific’) Whaling under International Law (Report, 12 May 2006).

[64] Ibid 5–7.

[65] Ibid 70.

[66] For a summary, see Rothwell (n 49) 405–6.

[67] For a summary, see ibid 406–7.

[68] See ibid 408–9.

[69] Australian Labor Party, National Platform and Constitution (2007) 145, 242.

[70] Rothwell (n 49) 410.

[71] ‘Australian Navy May Track Japan's Whaling Fleet’, Reuters (online, 13 December 2007) <>, archived at <>. Rothwell refers to earlier advice by him that had been used in 2005, before any of the IFAW panels had been established, to support a statement by the then Opposition environment spokesperson that Australia could take Japan to the International Tribunal for the Law of the Sea: ibid.

[72] For a summary of both the London and Canberra Panels, see Rothwell (n 49) 407–8.

[73] Ibid 408.

[74] Ibid 409.

[75] ‘Application Instituting Proceedings, Whaling in the Antarctic (n 18) 16–18 [35]–[39].

[76] See Bill Campbell, ‘Australia’s Engagement with the International Court of Justice: Practical and Political Factors’ [2021] MelbJlIntLaw 6; (2021) 21(3) Melbourne Journal of International Law 596, 605 n 50.

[77] Rothwell (n 49) 411.

[78] See, eg, Scott (n 19) 6, 10.

[79] Ibid 5.

[80] France: Declaration Recognizing as Compulsory the Jurisdiction of the International Court of Justice, in Conformity with Article 36, Paragraph 2, of the Statute of the Court, 907 UNTS 129 (terminated 10 January 1974); Pacific Settlement of International Disputes, 907 UNTS 194 (received 10 January 1974).

[81] ‘Declarations Recognizing as Compulsory the Jurisdiction of the International Court of Justice under Article 36, Paragraph 2, of the Statute of the Court: Japan’, United Nations Treaty Collection (Web Page) <>, archived at <>.

[82] Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 287–8.

[83] Ibid 288.

[84] Ibid 287.

[85] Rosalyn Higgins, ‘Remedies and the International Court of Justice: An Introduction’ in Malcolm D Evans (ed), Remedies in International Law: The Institutional Dilemma (Hart Publishing, 1998) 1, 2.

[86] Rothwell (n 49) 412.

[87] Shirley Scott seeks to explore the sorts of considerations that Australia may have taken into account before commencing litigation against Japan: see generally Scott (n 19).

[88] See generally Henry Burmester, ‘Australia’s Experience in International Litigation’ in Natalie Klein (ed), Litigating International Law Disputes: Weighing the Balance (Cambridge University Press, 2014) 61.

[89] See Scott (n 19) 8–10.

[90] Nuclear Tests (Australia v France) (Judgment) (n 13) 271–2 [56]–[59].

[91] Burmester, ‘Sir Elihu’ (n 30) 52.

[92] Ministry of Foreign Affairs of Japan, ‘Implementation of the New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A)’ (Media Release, 11 December 2015) <>, archived at <>.

[93] Ministry of Foreign Affairs of Japan, ‘Statement by Chief Cabinet Secretary’ (Media Release, 26 December 2018) <>, archived at <>.

[94] See, eg, Solomon (n 24) 1.

[95] See generally Nagtzaam and Guilfoyle (n 28).

[96] Scott and Oriana (n 49) 475.

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