INTERNATIONAL LAW IN AUSTRALIAN PUBLIC DEBATE 2003, 1965, 1916 Madelaine Sophie Chiam ORCID Identifier: orcid.org/0000-0002-1792-765X Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy January 2017 Melbourne Law School University of Melbourne ABSTRACT This thesis challenges the view that international law gained a new profile during the 2003 debates over the Iraq War by arguing that the contemporary prominence of international law in public debate is not new. The perception that international law was widely-used in the 2003 public debates, and that it had been relatively absent from public debates before then, has not been the subject of extensive analysis. Scholarship investigating the role of international law in the public debates around the 2003 Iraq War has focussed on the impact of that debate on government decision-making, rather than on the speakers and forms of the debate itself. This thesis takes a different approach by examining both the people who used international legal language in public debate and how they used it through analysis of texts of the debates over Australia’s participation in the 2003 Iraq War, the Vietnam War and the First World War. The thesis argues that there are two primary forms in which speakers have articulated international legal arguments for and against war in public debates: international law as a bundled justification and international law as an autonomous justification. I use the term ‘bundled justifications’ to describe vocabulary that carried a collective of undifferentiated standards, such as those of law, morality, strategy, economics and ethics. The primary examples of this vocabulary in this thesis are justifications that characterised international legal questions as standards of morality or as guarantees of an alliance. I use ‘autonomous justifications’ to refer to uses of international legal language where the requirement of legality was a criterion separate from other considerations such as morality or alliance. In autonomous justifications, the assessment of ‘legality’ on its own was a primary measure of the legitimacy of government military action. This thesis argues that international legal language in these two forms appeared in all three of the Australian public debates about war. The 2003 debates signified a shift, but it was a shift of form: a move from the predominant use of international legal language as one part of bundled justifications for war to international law as an autonomous justification for war. The claims of legality that continue to be made in Australian debates about war are thus part of a longer practice of speaking international legal language in public debates about war. ii DECLARATION I make the following declarations: i. The thesis comprises only my original work towards the degree of Doctor of Philosophy. ii. Due acknowledgement has been made in the text of this thesis to all other material used. iii. The thesis is fewer than 100,000 words in length, exclusive of the bibliography and appendices. Madelaine Sophie Chiam iii PREFACE AND ACKNOWLEDGMENTS I am fortunate to have undertaken a PhD at a place with as much intellectual and social energy as MLS. Gerry Simpson has been a mentor and friend since he taught me International Law at Melbourne Law School in the mid-1990s. As a supervisor, he has been demanding and inspiring, fitting into our sometimes 15 minute conversations enough golden nuggets of feedback to keep me going for weeks. And he has made me laugh; a most underrated quality in PhD supervisors. I thank Gerry for his wise counsel, his support, and his always insightful comments. I met Ann Genovese when she took me on as co-supervisor in 2010. Ann has been unfailingly patient and attentive and I have learned much from her careful and committed approach to academic life. I thank Ann for her rigorous supervision of my project. Gerry’s move to the LSE at the start of 2016 meant that I became the beneficiary of Hilary Charlesworth’s additional supervision to see me through to submission. I have worked with Hilary before, and it has been a joy and a privilege to do so again. I thank Hilary in particular for encouraging pragmatism towards the end of the thesis writing process, which has made it much easier to just make a decision, move on and finish this thing! I am especially fortunate to have met at MLS so many kindred scholars with whom I will continue to share this academic life. For the many times when I have needed someone to complain to, for their friendship, their conversation, their willingness to debate politics day and night, and for their baked goods, all of which have enriched my PhD experience so much, I give a heartfelt thanks to: Jason Bosland, Monique Cormier, Alison Duxbury, Maria Elander, Anna Hood, Jonathan Kolieb, Rain Liivoja, Dylan Lino, Simon McKenzie, Rose Parfitt, James Parker, Sasha Radin, Cait Storr and John Tobin. Other people at MLS have looked after me in different ways. Through their different institutional roles, Anne Orford, Michelle Foster and Adrienne Stone separately provided sage advice at key points in the PhD process. Cathy Hutton gave me a desk and included me in the life of the Asia-Pacific Centre for Military Law, and Bruce Oswald has continued to do so as director of APCML. Andrew Kenyon and John Howe consistently provided me with teaching opportunities. Outside the Law School, Barbara Keys and Caitlin Mahar helped me think about writing history, as did Dino Kritsiotis’ wonderful course on the history of international law. Melissa Abrahams and Lee Cath helped me keep the PhD in perspective. My experiences with the Institute for Global Law and Policy at the Harvard Law School have introduced me to a vast network of new intellectual collaborators. For ongoing conversations and inspiration, I iv thank in particular Luis Eslava, Christopher Gevers, Richard Joyce, Zoran Oklopcic, Genevieve Painter, Charlotte Peevers, Jothie Rajah and Ntina Tzouvala. For their mentorship within IGLP, I thank Karen Engle and David Kennedy; and for encouraging me to apply to IGLP in the first place, as well as for her continuing support, I thank Sundhya Pahuja. My primary source of PhD funding was an Australian Government Research Training Program Scholarship (which for most of the time that I was receiving it was called an Australian Postgraduate Award). I also received funding from the MLS Research Support Funds and from the APCML to present my PhD research at the 2013 and 2014 conferences of the Australia and New Zealand Society of International Law, and at the 2013 IGLP Conference. My participation at the 2014 IGLP Collaborative Research Team meetings, which were instrumental to the development of my argument in Chapter 5, was supported by funding from both MLS and IGLP. I presented an earlier version of Chapter 3 at a doctoral roundtable with Martti Koskenniemi in 2012, and at the inaugural Australian International Criminal Law Workshop in 2013, both in Melbourne. I presented parts of Chapter 4 to the Cold War International Law Workshops in Melbourne in 2015 and London in 2016, funded in part by the Australian Research Council (Australia) and the Arts and Humanities Research Council (UK). I thank the participants of all those events for their comments. Parts of Chapters 2 and 5 appear in similar form in ‘Tom Barker’s ‘To Arms!’ Poster: Internationalism and Resistance in First World War Australia’, forthcoming in the London Review of International Law (2017). And, finally, of course, I thank my family. My mother’s generosity and child-minding skills allowed me to work on the thesis when I otherwise could not have. I thank her, Helen Walsh, for all she has done for me. My children don’t know what it is to have a mother who is not doing a PhD, and my husband can’t remember what it’s like to have a partner who has a proper income. It would have been quicker and, presumably, easier to have written a PhD thesis before I had children, but it would not have been this PhD. And for all the reasons that I have identified in these Acknowledgements and more, I am happy to have (finally!) written this PhD. This is for Saskia, Francesca and Jason. v TABLE OF CONTENTS CHAPTER 1 – INTRODUCTION ....................................................................................................1 I THE QUESTION....................................................................................................................... 1 II THREE PRELIMINARY STORIES............................................................................................. 3 A The United Kingdom Iraq Inquiry, 2016 ......................................................................... 3 B The Australian Intervention in Syria, 2015..................................................................... 6 C Herodotus and Thucydides ............................................................................................... 9 D The Questions that the Thesis Asks ............................................................................... 11 III STRUCTURE OF THE THESIS ARGUMENT ......................................................................... 13 A A Tradition of Speaking International Legal Language in Public Debate..................... 13 B The Language of Non-Professional Speakers of International Law as Law.................... 16 C ‘Wars’ and Method ......................................................................................................... 18 IV SUMMARY CHAPTER OUTLINE .......................................................................................