‘DREAMERS OF THE DAY’: AUSTRALIA AND THE INTERNATIONAL COURT OF JUSTICE Australia and the International Court of Justice JAMES CRAWFORD This article reflects on Australia’s relationship with the International Court of Justice (‘the Court), charting its influence as a ‘middle power’ on the development of international law and the peaceful settlement of disputes from the San Francisco Conference onwards. Over that time, Australia has both supported the Court and relied upon it as a tool to defend or advance its foreign policy. Australia has nonetheless had to traverse some difficult terrain, from the South-West Africa cases (controversially decided on the casting vote of the Australian judge, President Sir Percy Spender) to the East Timor case (won on a technicality). While Australia’s active engagement has ebbed and flowed, contributions to Australia’s links with the Court have been made, directly or indirectly, by such remarkable Australians as Dr Herbert Vere Evatt, Sir Kenneth Bailey (who twice missed out on being elected to the Court), Sir Paul Hasluck, Sir Percy Spender and Mr Edward Gough Whitlam). CONTENTS I Introduction ............................................................................................................... 1 II Evatt, Bailey and Hasluck at the San Francisco Conference .................................... 2 III Australia and the Early Years of the Court ............................................................... 7 IV The Nomination of Sir Percy Spender .................................................................... 10 V Spender and the South-West Africa cases ............................................................... 14 VI Australia before the Court, 1973 – Present Day ..................................................... 19 VII Past, Present and Future .......................................................................................... 29 ‘All men dream: but not equally. Those who dream by night in the dusty recesses of their minds wake in the day to find that it was vanity: but the dreamers of the day are dangerous men, for they may act their dream with open eyes, to make it possible. This I did.’1 — T E Lawrence I INTRODUCTION The position of the International Court of Justice (‘ICJ’ or ‘the Court’) and its relationship to the system of international law since 1945 can be found abbreviated in the words of art 92 of the Charter of the United Nations James Crawford AC SC is Whewell Professor of International Law, University of Cambridge and a member of the Australian and English bars. He was the first Australian member of the United Nations International Law Commission and in that capacity was responsible for the ILC’s work on the International Criminal Court (1994) and for the second reading of the ILC Articles on State Responsibility (2001). He is a Research Professor of Law at La Trobe University, Victoria and is currently Australian candidate for election to the International Court of Justice. This piece is adapted from the 2013 Kenneth Bailey Memorial Lecture, presented on 19 March 2013 at the Melbourne Law School. 1 T E Lawrence, Seven Pillars of Wisdom (Wordsworth, 1997) 7. 1 2 Melbourne Journal of International Law [Vol 14 (‘Charter’). This provides: The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.2 And so it is and so it does. But my purpose before you here today is not to attempt to expand upon those rather elegantly drafted 46 words in general but, rather, to contextualise them in relation to Australia — a country generally perceived as less than central to international affairs, notwithstanding its recent election to the Security Council.3 In fact, Australia has had considerable involvement in the workings of the ICJ. An investigation of the history of that relationship reveals the presence and personalities of notable Australians of the past 50 years, including Sir Kenneth Bailey himself, in whose memory this lecture is held. He was the Dean of the Melbourne Law School from 1928–36 and then again from 1938–42. He was Commonwealth Solicitor-General from 1946–64 and twice a candidate for election to the Court, something he never achieved.4 Australia has played a significant role in the work of the ICJ from the beginning, participating in the United Nations Conference on International Organization at San Francisco in 1945 (‘San Francisco Conference’), nominating its nationals for the Bench (not always successfully) and participating in various cases and advisory proceedings. This relationship reflects more generally Australia’s foreign policy priorities in the years following World War II, most notably a firm belief in a system for the peaceful settlement of international disputes including the ICJ. This demonstrates the capacity of a ‘middle power’ to influence the development of international law — even at the risk of being seen as one of the ‘dreamers of the day’. II EVATT, BAILEY AND HASLUCK AT THE SAN FRANCISCO CONFERENCE Australia’s connection to the ICJ begins at the San Francisco Conference. Although the UN’s predecessor, the League of Nations (‘League’), also had at its disposal a judicial organ in the form of the Permanent Court of International 2 See also Hermann Mosler and Karin Oellers-Frahm, ‘The International Court of Justice’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary (Oxford University Press, 2nd ed, 2002) vol 2, 1139, 1139–71 (on art 92 of the Charter of the United Nations). 3 Department of Public Information, General Assembly, ‘General Assembly Elects Argentina, Australia, Luxembourg, Republic of Korea, Rwanda as Non-Permanent Members of Security Council’ (Media Release, GA/11303, 18 October 2012) <http://www.un.org/News/Press/docs/2012/ga11303.doc.htm>. 4 Jack E Richardson, ‘Bailey, Sir Kenneth Hamilton (1898–1972)’ in John Ritchie and Christopher Cunneen (eds), Australian Dictionary of Biography (Melbourne University Press, 1993) vol 13, 89. See also Melbourne Law School, Kenneth Bailey 1928–36, 1938–1942 (4 January 2013) <http://www.law.unimelb.edu.au/melbourne-law-school/comm unity/history/people/deans/kenneth-bailey>. 2013] Australia and the International Court of Justice 3 Justice (‘PCIJ’),5 Australia took little interest in the drafting of its Statute,6 never nominated a judge to its Bench and never appeared before it — although in 1929 it made a declaration accepting the optional clause jurisdiction of the PCIJ.7 But Australia did take an interest in the workings of the League more generally and its delegations usually included a range of figures of high public profile, notably Stanley Bruce. Bruce’s association with the League began as a young Member of Parliament in 1921 and he continued throughout his political career to address such issues as the Great Depression, the Italian conquest of Abyssinia, the Hoare-Laval Pact, the lead-up to World War II and the collapse of the League.8 Australia emerged from World War II with a foreign policy distinct from that of the United Kingdom. The Labor Governments of John Curtin and Ben Chifley sought to inject a liberal internationalism into Australia’s external affairs, resulting in their support for international organisations which were then emerging.9 The principal architect of this shift was Herbert Vere Evatt, who served simultaneously as Australia’s Attorney-General and Minister for External Affairs from 1941 to 1949.10 An extraordinarily divisive figure, Evatt’s qualities as a visionary — albeit a deeply flawed one — need not be recounted here.11 As a former judge of the High Court of Australia and as chief foreign representative of one of the victorious Allies, he was qualified to play a significant role at San Francisco. The Conference took place from 25 April to 26 June 1945 and is widely 5 See generally Ole Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (Cambridge University Press, 2005). 6 Statute of the Permanent Court of International Justice. 7 The declaration of 20 September 1929 was replaced by a new declaration of 21 August 1940. For the text of both, see Protocol of Signature of the Statute of the Permanent Court of International Justice, opened for signature 16 December 1920, 200 LNTS 494 (entered into force 1 September 1921). 8 Cecil Edwards, Bruce of Melbourne: Man of Two Worlds (Heinemann, 1965) 47, 53–6, 223, 230. 9 See generally David Lee, ‘The Curtin and Chifley Governments, Liberal Internationalism and World Organisation’ in David Lee and Christopher Waters (eds), Evatt to Evans: The Labor Tradition in Australian Foreign Policy (Allen & Unwin, 1997) 48. 10 Alan Watt, The Evolution of Australian Foreign Policy 1938–1965 (Cambridge University Press, 1968) 61. On the wider sweep of Evatt’s role in Australia’s foreign policy in the immediate post-war era, see ch 4. 11 Evatt’s many achievements and his famously difficult character have made him the subject of numerous biographies: see, eg, Allan Dalziel, Evatt: The Enigma (Lansdowne Press, 1967); Kylie Tennant, Evatt: Politics and Justice (Angus and Robertson, 1970); Peter Crockett, Evatt: A Life (Oxford University Press, 1993); Ken Buckley, Barbara Dale and Wayne Reynolds, Doc Evatt: Patriot, Internationalist, Fighter and Scholar (Longman Cheshire, 1994). More relevantly