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FOREWORD:
MELBOURNE JOURNAL OF INTERNATIONAL LAW
25TH VOLUME CELEBRATION
Territorial Disputes in the South China Sea
CONTENTS
It is a pleasure to be invited to give the address at the annual dinner of the Melbourne Journal of International Law and to do so this year — in celebration of the Journal’s 25th volume, a silver anniversary.[1] I acknowledge the Wurundjeri Woi Wurrung and Bunurong People of the Kulin Nations on whose lands we are gathered tonight and pay my respects to their Elders, past and present. I extend that respect to all Aboriginal and Torres Strait Islander peoples here this evening.
As an alumnus of Melbourne Law School, I am particularly pleased to have the opportunity to speak with you this evening. I thank the Journal’s editors — Megan Stevens, Joseph Zivny and Felix Geake-Ransome — for extending the kind invitation. I would also like to congratulate Professor Michelle Foster on her recent appointment as Dean of Melbourne Law School and acknowledge outgoing Interim Dean, Professor Alison Duxbury. I also acknowledge members of the Melbourne Law School faculty, members of the Journal’s Editorial and Advisory Boards and, of course, Journal contributors past, present and perhaps future here tonight.
In 2000, in their preface to the inaugural volume of the Journal, the founding editors set the new journal a challenge: that its ‘continuance [would] be determined by whether its contents continue to make meaningful contributions to the understanding and development of international law’.[2]
Christopher G Weeramantry, a former Vice-President of the International Court of Justice (‘ICJ’), penned the foreword to that first volume. He expressed confidence that the Journal would rise to the challenge. It would provide, in particular, young Australian lawyers a new forum in which to shape the discipline.[3]
Since that first volume, the Journal has cemented itself as one of the pre-eminent generalist international law journals in the Southeast Asian region. Importantly, it continues as a student-run organisation providing Australia’s next generation of public international lawyers the opportunity to, as Judge Weeramantry hoped, contribute to the field.
When one looks through the Journal’s 25-volume archive, it is striking how international law is as consistent as it is changing, even in the face of the last quarter century’s evolving challenges. The first volume published articles which continue to be of great relevance today: underwater cultural heritage,[4] human rights[5] and the ever-increasing interaction between public and private international law.[6] Now, in its 25th volume, the Journal continues to rise to the challenge set by its founding editors at the turn of the millennium. The new volume spans the ICJ’s advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,[7] multilateral responses to forced human displacement,[8] self-defence in response to cyber attacks[9] and deep-sea mining in the South China Sea.[10] These are all contributions to critical and challenging conversations and I look forward to reading them.
Much like the recurring international law themes and questions that the Journal’s 25 volumes have consistently grappled with, international law itself has played and continues to play a consistent and important role for Australia. As Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams proposed in their 2006 book No Country is an Island: Australia and International Law, although at times international law does not seem immediately relevant to domestic Australian politics and law, let alone to our everyday lives, ‘no country is an island, set apart from the developing body of international law’.[11]
This evening, I want to reflect on the fundamental role international law has played in the development of Australia’s domestic law and in achieving justice and reform here at home, as well as how Australia engages constructively with international legal institutions and processes in support of the international rules-based order.
In October 1966, Australia signed the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).[12] However, it would not be until 1975 when Prime Minister Gough Whitlam and Attorney-General Lionel Murphy enacted the Racial Discrimination Act 1975 (Cth) (‘Racial Discrimination Act’) — Australia’s first substantial human rights legislation — that Australia would ratify the Convention.[13]
In 1982, a High Court challenge to the legislation in Koowarta v Bjelke-Petersen (‘Koowarta’) failed.[14] By a narrow majority of four to three, the Court found that the Racial Discrimination Act was within the Commonwealth’s external affairs power under s 51(xxix) of the Constitution, though the precise scope of that power remained far from clear.[15]
A decade after the Racial Discrimination Act passed, in a bid to pre-empt and purportedly extinguish the Meriam peoples’ claim to native title over the Murray Islands, Queensland passed the Queensland Coast Islands Declaratory Act 1985 (Qld) (‘Coast Islands Act’). Nevertheless, in their High Court challenge in Mabo v Queensland [No 1] (‘Mabo [No 1]’), the Meriam people successfully argued that the Coast Islands Act was invalid.[16] It was inconsistent with the Commonwealth’s Racial Discrimination Act which the High Court had already found to be constitutionally valid.[17]
The path was then clear for the 1992 decision in Mabo v Queensland [No 2] (‘Mabo [No 2]’).[18] There, the High Court famously rejected the legal doctrine that Australia was terra nullius and held that the common law recognised a form of native title.[19] Mabo [No 2] is, rightly, considered a leading example of the use of international law to influence the development of the common law in Australia. In his Honour’s leading judgment, Brennan J quoted extensively from the ICJ’s advisory opinion in Western Sahara[20] and concluded:
The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.[21]
Notwithstanding the importance of this conclusion and other critical conclusions reached by the High Court in Mabo [No 2], the preceding steps in Koowarta and Mabo [No 1] demonstrate the important role Australia’s international treaty obligations can have in shaping Australia’s domestic law, especially the domestic protection of human rights. Just as it safeguarded equality before the law for the Meriam people in Mabo [No 1], paving the way for the momentous outcomes that followed, the ratification and implementation of CERD continues to play an important role for advancing the rights of Aboriginal and Torres Strait Islander peoples in Australian law.
Similarly, the High Court’s landmark 1983 decision in Commonwealth v Tasmania (‘Tasmanian Dams Case’) further clarified the external affairs power and again demonstrated how international law can be an impetus for domestic law reform.[22]
In the late 1970s, the Tasmanian Government proposed the construction of the Franklin Dam on the Gordon River.[23] The dam would have flooded an area in south-west Tasmania which in 1982 — the same year the Tasmanian Parliament passed laws to allow construction to continue — was declared a World Heritage Site by the United Nations Educational, Scientific and Cultural Organisation.[24] During the 1983 federal election, Bob Hawke promised to intervene and prevent the construction of the dam.[25] After winning that election, he passed the World Heritage Properties Conservation Act 1983 (Cth) (‘World Heritage Act’), allowing the Government to stop clearing, excavation and other activities that would damage the heritage site.[26] After the Tasmanian Government refused to halt construction, the Commonwealth commenced proceedings in the High Court.[27]
The central question before the High Court was essentially the same as in Koowarta: whether the Commonwealth had constitutional power to make laws to fulfil its obligations under an international convention[28] — here, the Convention concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’).[29] Four to three, the High Court held that the relevant provisions of the World Heritage Act were indeed supported by the external affairs power.[30] Whilst legal debate over the precise contours of the power would continue for another decade, it was now clear that under s 51(xxix), the Commonwealth could enact legislation to fulfil Australia’s international treaty obligations regardless of whether the treaty reflected a matter of ‘international concern’.[31]
The decision not only halted the construction of the Franklin Dam and protected a World Heritage Site; it provided the critical constitutional precedent for several new laws being enacted to protect Australia’s environmental heritage and biodiversity.[32] Domestic implementation of Australia’s international treaty obligations continues to account for many of the Commonwealth’s statutes. As Attorney-General, I have a particular role to play in Australia’s treaty-making process by considering whether we have domestic legislation and other measures in place to enable Australia’s ratification of, and compliance with, our treaty obligations.
As much as international law has had a fundamental impact on Australian domestic law, Australia has often played a leading role in the constructive use of peaceful dispute settlement to shape international law and to uphold the international rules-based order.
The Nuclear Tests cases were Australia’s first encounter with the ICJ.[33] Throughout the 1960s and 1970s, France conducted 46 atmospheric tests at Moruroa and Fangataufa atolls, some 8,700 km from mainland Australia.[34] In his iconic ‘It’s Time’ election speech in 1972, Gough Whitlam pledged: ‘We will take the question of French nuclear tests to the International Court of Justice to get an injunction against further tests’.[35]
And, in May 1973, Australia and New Zealand each instituted proceedings against France.[36] As detailed in a 2021 article in the Journal by Richard Rowe, former Senior Legal Adviser in the Department of Foreign Affairs and Trade, the final decision by Prime Minister Whitlam to institute these proceedings was only taken after sustained Australian diplomatic efforts over a decade had been exhausted.[37] France, considering the ICJ lacked jurisdiction, refrained from appearing at the public hearings or filing any pleadings.[38] At the request of Australia and New Zealand, the ICJ awarded provisional measures requiring France to avoid nuclear tests causing radioactive fallout on Australian or New Zealand territory.[39] This was a significant outcome not only for Australia and New Zealand but also for states in the Pacific who were strongly opposed to the nuclear testing.[40]
At the merits phase, the ICJ found that the applications no longer had any object, or were moot.[41] The ICJ considered that the ultimate objective of Australia and New Zealand had been achieved.[42] France, in various public statements, including by its President, had announced its intention to not carry out any further atmospheric nuclear tests following the 1974 series.[43] In the ICJ’s view, these statements amounted to binding unilateral obligations assumed by France.[44]
The Nuclear Tests cases are a testament to Australia’s longstanding commitment to the international regime for nuclear nonproliferation. They also revealed Australia to be a courageous state unafraid of using peaceful dispute settlement to uphold the international rules-based order, even against states that are close allies.
Decades later, in 2010, Australia would again turn to the ICJ to hold Japan accountable for violations of its obligations under the International Convention for the Regulation of Whaling (‘ICRW’) in connection with its JARPA II whaling program.[45]
I appeared before the ICJ as Attorney-General alongside a formidable legal team comprised of our Agent, Bill Campbell QC, then General Counsel of the Office of International Law; Justin Gleeson SC, then Solicitor-General of the Commonwealth; the late James Crawford SC, at the time the Whewell Professor of International Law at Cambridge; Henry Burmester QC, Special Counsel at the Australian Government Solicitor; Philippe Sands QC; and Professor Laurence Boisson de Chazournes.[46]
In a resounding victory for Australia, the ICJ decided by twelve votes to four that the special permits granted by Japan for killing, taking and treating whales were not ‘for purposes of scientific research’.[47] Thus, all whaling by Japan in the Southern Ocean Sanctuary was subject to the specific substantive regulations and obligations enshrined in the schedule annexed to the ICRW.[48] The ICJ concluded that Japan had violated a range of these obligations and ordered Japan to revoke any extant authorisation, permit or licences and refrain from granting any further permits.[49]
Our case before the ICJ, combined with our sustained efforts through the International Whaling Commission, has contributed to a whaling-free Southern Ocean and a decline in commercial whaling around the world. Since the case, Australia has continued to lead international efforts opposing commercial whaling and advocating for whale conservation.[50] At the next meeting of the International Whaling Commission in September, Dr Nick Gales — Australia’s Whales Commissioner and key expert witness in Whaling in the Antarctic — will be nominated to become the next Chair of the organisation. This is a powerful demonstration of Australia’s commitment to the International Whaling Commission as the global authority for the conservation and management of whales.
The significance of the ICJ’s decision in Whaling in the Antarctic is not limited to the regulation of international whaling. It continues to be a vital precedent in assessing states’ claims that certain measures are justified as part of a scientific programme — an exemption contained in a multitude of other international environmental agreements.[51] It also continues to be an important case study in how the ICJ handles scientific evidence, along with the use and cross-examination of expert witnesses.[52]
And it was, of course, also the first time Judge Charlesworth was appointed a Judge ad hoc by Australia before being elected to the ICJ in 2021 to fill the seat of the late James Crawford on the bench. Judge Charlesworth is the first Australian woman and only the fifth woman ever elected to the ICJ.[53] I was immensely proud to support Judge Charlesworth’s re-election to the ICJ in 2023. Judge Charlesworth, an alumna of Melbourne Law School, represents the best of Australia’s commitment to international law and the peaceful settlement of disputes. She has already established herself as a committed, principled, rigorous and fair-minded judge.
Australia’s leadership in using international law to achieve important environmental outcomes in our neighbourhood — be it in the Southern Ocean or in the Pacific — is not a new phenomenon, as the Nuclear Tests and Whaling in the Antarctic cases illustrate. Australia continues to engage constructively with current efforts to seek clarity from international courts and tribunals on states’ international legal obligations with respect to climate change.
Climate change is an urgent global challenge, representing the greatest shared threat to all countries. It is also the single greatest threat to the livelihoods, security and wellbeing of the peoples of the Pacific and disproportionately impacts our First Nations peoples.
Australia was therefore proud to participate in proceedings before the International Tribunal for the Law of the Sea (‘ITLOS’) to clarify the obligations of states to preserve the marine environment and protect it from the impacts of climate change. In May 2024, ITLOS delivered its advisory opinion, which the Government is now considering carefully.[54]
Australia was also a proud co-sponsor alongside 131 others of the Vanuatu-led UN General Assembly resolution requesting an advisory opinion from the ICJ on the obligations of states in respect of climate change.[55] The campaign of course has its origins in the efforts of a group of law students studying at the University of the South Pacific.[56] Australia filed its first-round written statement in March 2024.[57] Australia’s written statement highlights Australia’s resolute commitment to the United Nations Framework Convention on Climate Change and the Paris Agreement as the primary source of states’ obligations under international law concerning the protection of the climate system from anthropogenic emissions of greenhouse gases.[58]
Finally, I want to turn to two current but distinct proceedings in which Australia is committed to holding Russia to account and through which we seek to uphold the international rules-based order.
The first is Australia’s efforts to pursue truth, justice and accountability for the downing of Malaysia Airlines Flight MH17 over Ukraine ten years ago. This horrific act of violence resulted in the death of all 298 people on board, including 38 who called Australia home.[59] In July this year, I travelled to the Netherlands to attend a commemoration marking the ten-year anniversary of this senseless act of violence.[60]
Since 2022, Australia and the Netherlands have been working together to pursue a case against Russia in the Council of the International Civil Aviation Organisation (‘ICAO’) for its role in the downing of Flight MH17.[61] Our key submission is that Russia is responsible for the downing of Flight MH17 and has breached art 3 bis of the Convention on International Civil Aviation, which prohibits the use of weapons against civil aircraft in flight.[62]
In March 2023, the ICAO Council decided that it had jurisdiction to hear our case.[63] In June this year, the ICAO Council held the first hearing on the merits of our dispute.[64] This is a significant milestone for Australia and the Netherlands in our pursuit of truth, justice and accountability for the victims and their next of kin. It is also a milestone for the ICAO Council itself, being the first time that a dispute brought before the Council has proceeded to a hearing on the merits.
At the first hearing, Australia and the Netherlands presented compelling evidence of Russia’s responsibility for the downing and responded to questions from Council Members on this issue. That evidence is the product of international cooperation that supported two rigorous investigations — a technical investigation led by the Dutch Safety Board and a criminal investigation conducted by the Joint Investigation Team comprising police, prosecutors and officials from the Netherlands, Malaysia, Belgium, Ukraine and Australia.[65] Despite Russia’s regrettable withdrawal from the ICAO proceedings only one day prior to the hearing, the case will continue in accordance with the Council’s rules.[66]
Australia and the Netherlands will deliver our legal submissions in October and we will continue to work closely with the Netherlands in calling upon the ICAO Council to decide in favour of our claim.
Second, I wanted to conclude with Australia’s involvement in ongoing efforts to ensure that Russia is held to account for its continuing illegal and immoral invasion of Ukraine. Australia strongly supports efforts to hold Russia to account for these actions and has worked with like-minded States to pursue this through a range of legal mechanisms. In September last year, Australia joined an unprecedented 31 other countries intervening before the ICJ in support of Ukraine’s case against Russia at the preliminary objections phase of the case.[67] The ICJ has decided it has jurisdiction to hear Ukraine’s case that Russia falsely claimed Ukraine committed genocide in violation of the Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’).[68]
Australia will continue to intervene in Ukraine’s case against Russia in the ICJ. We have just recently filed an adjusted declaration of intervention for the merits phase of the proceeding.[69] Our intervention continues to demonstrate our tireless pursuit of international accountability and our commitment to upholding fundamental rules of international law and the integrity of the Genocide Convention.
No country is an island, even one girt by sea. International law has had, and continues to have, a critical role in shaping Australia’s domestic law. Without it, some of the most important milestones in our protection of human rights and the environment would not have been possible. Australia is not a passive recipient of international law — it has engaged and will continue to engage constructively with international legal institutions and processes. In pursuit of the international rules-based order, our efforts before international courts and tribunals shape and develop the law and call for accountability for breaches of it. As I said in my submissions before the ICJ in Whaling in the Antarctic, ‘[c]ompliance with international obligations is central to upholding the rule of law’.[70]
Of course, even the most devout of international law audiences — such as the audience in this room — can recognise international law’s imperfections. But as James Crawford concluded in his famed Hague Academy Lecture, Chance, Order, Change: ‘It has many weaknesses, faces many difficulties, is changing and needs to change further. But in the race for order, it is part of our common heritage, and a vital one.’[71]
International law is a vital part of Australia’s heritage, no less its future. As hoped by its founding editors, I am confident the Journal will continue to play a critical role in this future. Its articles will no doubt shape debates, prompt change and propose solutions to some of our most pressing collective challenges.
Congratulations on reaching the significant milestone of 25 volumes of the Journal. Here’s to the next 25.
THE HON MARK DREYFUS KC MP
Attorney-General of the Commonwealth of Australia
[1] The Attorney-General of the Commonwealth of Australia, the Hon Mark Dreyfus KC MP, delivered the address at the Melbourne Journal of International Law’s 25th Volume Celebration. The Celebration was held on 28 August 2024 at the State Library of Victoria. An edited version of the address is published in print as a foreword in this volume of the Journal. An unedited version of the address is published online as a speech on the Attorney-General’s media centre: Mark Dreyfus, ‘Melbourne Journal of International Law 25th Volume Celebration’ (Speech, State Library of Victoria, 28 August 2024) <https://ministers.ag.gov.au/media-centre/speeches/melbourne-journal-international-law-25th-volume-celebration-28-08-2024>, archived at <https://perma.cc/L5FA-QZ6X>.
[2] Suzan Davies et al, ‘From the Editors’ (2000) 1(1) Melbourne Journal of International Law i.
[3] Christopher G Weeramantry, ‘Foreword’ (2000) 1(1) Melbourne Journal of International Law iii.
[4] Constance Johnson, ‘For Keeping or for Keeps? An Australian Perspective on Challenges Facing the Development of a Regime for the Protection of Underwater Cultural Heritage’ (2000) 1(1) Melbourne Journal of International Law 19.
[5] David Begg, ‘Poverty and Human Rights in Bangladesh’ (2000) 1(1) Melbourne Journal of International Law 149.
[6] Dianne Otto, ‘Handmaidens, Hierarchies and Crossing the Public-Private Divide in the Teaching of International Law’ (2000) 1(1) Melbourne Journal of International Law 35.
[7] Tom Frost and CRG Murray, ‘The Mists of Time: Intertemporality and Self-Determination’s Territorial Integrity Rule in the ICJ’s Chagos Advisory Opinion’ (2024) 25(1) Melbourne Journal of International Law 21; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ICJ Rep 95.
[8] Samuel Berhanu Woldemariam, Amy Maguire and Jason von Meding, ‘A Centenary of Multilateral Response to Forced Human Displacement: Legacies, Limitations and the Future’ (2024) 25(1) Melbourne Journal of International Law 132.
[9] Ben Hines, ‘Reinterpreting the Legality of Forcible Self-Defence in Response to Non-Kinetic Cyber Attacks’ (2024) 25(1) Melbourne Journal of International Law 51.
[10] Alison McCook and Donald R Rothwell, ‘Territorial Disputes and Deep-Sea Mining in the South China Sea’ (2024) 25(1) Melbourne Journal of International Law 95.
[11] Hilary Charlesworth et al, No Country Is an Island: Australia and International Law (University of New South Wales Press, 2006) 160.
[12] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969).
[13] Ibid.
[14] [1982] HCA 27; (1982) 153 CLR 168.
[15] Ibid 221 (Stephen J), 234 (Mason J), 242 (Murphy J), 261 (Brennan J).
[16] [1988] HCA 69; (1988) 166 CLR 186.
[17] Ibid 219 (Brennan, Toohey and Gaudron JJ), 233 (Deane J).
[18] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo [No 2]’).
[19] Ibid 41–3, 57, 75 (Brennan J, Mason CJ and McHugh J agreeing at 15), 86, 108–9 (Deane and Gaudron JJ), 182, 216 (Toohey J).
[20] See, eg, ibid 40–1 (Brennan J), quoting Western Sahara (Advisory Opinion) [1975] ICJ Rep 12.
[21] Mabo [No 2] (n 18) 42 (Brennan J).
[22] [1983] HCA 21; (1983) 158 CLR 1 (‘Tasmanian Dams Case’).
[23] ‘Franklin Dam and the Greens’, National Museum Australia (Web Page, October 2022) <https://www.nma.gov.au/defining-moments/resources/franklin-dam-greens>, archived at <https://perma.cc/7R3C-BRA2>.
[24] Tasmanian Dams Case (n 22) 62 (Gibbs CJ); World Heritage Committee, United Nations Educational, Scientific and Cultural Organisation, Report of the Rapporteur, 6th sess, UNESCO Doc CLT-82/CH/CONF.015/8 (17 January 1983) 5, 6; Gordon River Hydro-Electric Power Development Act 1982 (Tas).
[25] Bob Hawke, ‘Policy Speech’ (Speech, Sydney Opera House Opera Theatre, 16 February 1983) 27.
[26] World Heritage Properties Conservation Act 1983 (Cth) ss 3, 6, 9, 10, 11.
[27] ‘Franklin Dam and the Greens’ (n 23).
[28] Tasmanian Dams Case (n 22) 70 (Gibbs CJ).
[29] Convention concerning the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975) (‘World Heritage Convention’).
[30] Tasmanian Dams Case (n 22) 160 (Mason J), 183 (Murphy J), 249–50 (Brennan J), 294–5 (Deane J).
[31] See, eg, Victoria v Commonwealth (1996) 187 CLR 416, 484–5 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
[32] See, eg, Environment Protection and Biodiversity Conservation Act 1999 (Cth). See also Jacqueline Peel and Lee Godden, ‘Australian Environmental Management: A “Dams” Story’ [2005] UNSWLawJl 41; (2005) 28(3) University of New South Wales Law Journal 668, 675–82.
[33] Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253 (‘Nuclear Tests (Australia v France) (Judgment)’); Nuclear Tests (New Zealand v France) (Judgment) [1974] ICJ Rep 457 (‘Nuclear Tests (New Zealand v France) (Judgment)’) (together, ‘Nuclear Tests cases’).
[34] ‘Moruroa Files: Investigation into French Nuclear Tests in the Pacific’, Moruroa Files (Web Page) <https://moruroa-files.org/en/investigation/moruroa-files>, archived at <https://perma.cc/84XK-U5S7>.
[35] Gough Whitlam, ‘It’s Time’ (Speech, Blacktown, 13 November 1972) <https://electionspeeches.moadoph.gov.au/speeches/1972-gough-whitlam>, archived at <https://perma.cc/69BL-E538>.
[36] Richard Rowe, ‘The Diplomatic Dimension: Australia and the Nuclear Tests Case’ [2021] MelbJlIntLaw 3; (2021) 21(3) Melbourne Journal of International Law 536, 549.
[37] Ibid 540.
[38] Ibid 549.
[39] Nuclear Tests (Australia v France) (Provisional Measures) [1973] ICJ Rep 99, 106; Nuclear Tests (New Zealand v France) (Provisional Measures) [1973] ICJ Rep 135, 142.
[41] Nuclear Tests (Australia v France) (Judgment) (n 33) 272; Nuclear Tests (New Zealand v France) (Judgment) (n 33) 478.
[42] Nuclear Tests (Australia v France) (Judgment) (n 33) 270 [52]; Nuclear Tests (New Zealand v France) (Judgment) (n 33) 476 [58].
[43] Nuclear Tests (Australia v France) (Judgment) (n 33) 263–7 [32]–[41]; Nuclear Tests (New Zealand v France) (Judgment) (n 33) 472 [44].
[44] Nuclear Tests (Australia v France) (Judgment) (n 33) 269–70 [51]; Nuclear Tests (New Zealand v France) (Judgment) (n 33) 474–5 [53].
[45] International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948) (‘ICRW’); ‘Application Instituting Proceedings’, Whaling in the Antarctic (Australia v Japan) (International Court of Justice, General List No 148, 31 May 2010) 2.
[46] Whaling in the Antarctic (Australia v Japan) (Judgment) [2014] ICJ Rep 226, 231 (‘Whaling in the Antarctic’).
[47] Ibid 294 [229], 299.
[48] Ibid 294 [230].
[49] Ibid 298 [245].
[50] Tanya Plibersek, ‘Australia Opposes All Forms of Commercial Whaling’ (Press Release, 1 August 2024) <https://minister.dcceew.gov.au/plibersek/media-releases/australia-opposes-all-forms-commercial-whaling>, archived at <https://perma.cc/XVZ7-DDJ5>.
[51] See, eg, James Harrison, ‘Exceptions in Multilateral Environmental Agreements’ in Lorand Bartels and Federica Paddeu (eds), Exceptions in International Law (Oxford University Press, 2020) 328, 329–30.
[52] See, eg, Makane Moïse Mbengue, ‘Scientific Fact-Finding at the International Court of Justice: An Appraisal in the Aftermath of the Whaling Case’ (2016) 29(2) Leiden Journal of International Law 529.
[53] ‘MLS Laureate Professor First Australian Woman to Be Elected to International Court of Justice’, Melbourne Law School (Web Page, 8 November 2021) <https://law.unimelb.edu.au/news/MLS/mls-laureate-professor-first-australian-woman-to-be-elected-to-international-court-of-justice>, archived at <https://perma.cc/L39T-ZZ2L>.
[54] Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change and International Law (Advisory Opinion) (International Tribunal for the Law of the Sea, Case No 31, 21 May 2024).
[55] Request for an Advisory Opinion of the International Court of Justice on the Obligations of States in Respect of Climate Change, GA Res 77/276, UN GAOR, 77th sess, Agenda Item 70, UN Doc A/RES/77/276 (4 April 2023).
[56] ‘USP Students Succeed in Campaign Taking Climate Change to the World’s Highest Court’, University of the South Pacific (Web Page, 27 March 2023) <https://www.usp.ac.fj/news/usp-students-succeed-in-campaign-taking-climate-change-to-the-worlds-highest-court/>, archived at <https://perma.cc/Y4NZ-H7VU>.
[57] ‘Written Statement of Australia’, Obligations of States in Respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 22 March 2024).
[58] Ibid; United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994); Paris Agreement, opened for signature 22 April 2016, 3156 UNTS 79 (entered into force 4 November 2016).
[59] Commonwealth, Parliamentary Debates, House of Representatives, 30 September 2014, 10715 (Julie Bishop, Minister for Foreign Affairs).
[60] Penny Wong and Mark Dreyfus, ‘10 Years since Downing of Malaysia Airlines Flight MH17’ (Media Release, 17 July 2024) <https://www.foreignminister.gov.au/minister/penny-wong/media-release/10-years-downing-malaysia-airlines-flight-mh17>, archived at <https://perma.cc/3W6D-HCVV>.
[61] Marise Payne, Scott Morrison and Michaelia Cash, ‘Australia and the Netherlands Initiate MH17 Legal Proceedings’ (Media Release, 14 March 2022) <https://www.foreignminister.gov.au/minister/marise-payne/media-release/australia-and-netherlands-initiate-mh17-legal-proceedings>, archived at <https://perma.cc/3QG5-YVPE>.
[62] Protocol Relating to an Amendment to the Convention on International Civil Aviation (Article 3 bis), signed 10 May 1984, 2122 UNTS 337 (entered into force 1 October 1998); Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947).
[63] Penny Wong and Mark Dreyfus, ‘ICAO Council Decision on Jurisdiction in MH17 Legal Proceedings’ (Media Release, 18 March 2023) <https://www.foreignminister.gov.au/minister/penny-wong/media-release/icao-council-decision-jurisdiction-mh17-legal-proceedings>, archived at <https://perma.cc/SAF8-U2FQ>.
[64] Ian Biggs, ‘1483rd Meeting of the OSCE Permanent Council’, Australian Embassy and Permanent Mission to the United Nations (Statement, 18 July 2024) <https://austria.embassy.gov.au/vien/OSCEPC1483_2024.html>, archived at <https://perma.cc/9T29-9RVD>.
[65] Dutch Safety Board, Crash of Malaysia Airlines Flight MH17 (Report, October 2015); ‘The Criminal Investigation by the Joint Investigation Team (JIT)’, Netherlands Public Prosecution Service (Web Page) <https://www.prosecutionservice.nl/topics/mh17-plane-crash/criminal-investigation-jit-mh17>, archived at <https://perma.cc/K6YB-J2EN>.
[66] Commonwealth, Parliamentary Debates, House of Representatives, 4 July 2024, 1–2 (Mark Dreyfus, Attorney-General).
[67] Mark Dreyfus, ‘Australia Supports Ukraine in the International Court of Justice’ (Press Release, 20 September 2023) <https://ministers.ag.gov.au/media-centre/australia-supports-ukraine-international-court-justice-20-09-2023>, archived at <https://perma.cc/NS3Z-J9K5>.
[68] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) (Preliminary Objections) (International Court of Justice, General List No 182, 2 February 2024) 56–7 [149]; Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951).
[69] ‘Declaration of Intervention of the Government of Australia (Adjusted)’, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) (International Court of Justice, General List No 182, 1 August 2024).
[70] ‘Verbatim Record’, Whaling in the Antarctic (Australia v Japan) (International Court of Justice, General List No 148, 9 July 2013) 14 [3] (Mark Dreyfus QC).
[71] James Crawford, Chance, Order, Change: The Course of International Law (Hague Academy of International Law, 2014) 506.
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