“Japan, a country that places importance on the rule of law, trusts that the outcome of this case upholds stable multilateralism…but when one morning you find your state bound by the policy of the majority…the only way out is to leave such an organisation.”

Japanese Deputy Foreign Minister Koji Tsuruoka, closing words to the International Court of Justice, 2013.

In this moment of contested territories, histories and destinies, institutional expressions of public good are more necessary than ever. The nations of the world appear united in their selective adherence to international law and equally selective commitment to multilateralism. Most nations maintain a rhetorical commitment to a multilateral approach – until strategic or economic interests are at risk. In this symphony of hypocrisy, Australia’s clanging symbol can often be clearly heard over the rest.

In the 5th century, the powerful city state of Athens wished to incorporate the strategically important but independent island of Melos into its empire. Thucydides’ Melian Dialogue, described the negotiations between Athens and Melos. The Athenian ambassadors, surprised by the Melians naivety, argued that justice “is to be found only as between equals in power. As for the rest, the strong do as they will and the weak suffer as they must.” Without recourse to collective action and security, powerful nations would be free to exert their will over the weak.

Multilateralism has evolved over a long period. An early example was the Concert of Europe, which was supported by international law as it derived from the final Act of the Congress of Vienna which stipulated that the territorial boundaries established in 1815 could not be altered without the consent of its eight signatories. The Concert of Europe preserved peace for a sustained period until the rise of nationalism eroded its effectiveness.

Nationalism is the historic enemy of multilateralism. After the League of Nations’ Lytton Report rejected Japan’s argument that its invasion and occupation of Manchuria was an act of self-defence, it resigned from the League of Nations. Disaster followed. The European Union and United Nations emerged from the barbarity of World War II, but the effectiveness of multilateral institutions is being eroded anew by a resurgent nationalism
which often finds expression in the hunger to redefine territorial boundaries.

In a speech made in Washington earlier this year, Turnbull quoted from Thucydides, often cited as a case study in political realism, as he extolled the merits of multilateralism and international law. The inference of the speech, made in the context of a shift in the
balance of power in Asia and concern that China is adopting a more assertive role, was clear. Turnbull argued that “the international order, the rule of law seeks to ensure that … might is not right.” Indeed.

China did not participate in the court of arbitration process which found that China’s expansive claims were in violation of the United Nations Convention on the Law of the Sea (UNCLOS). China would prefer for each of the many territorial disputes in Asia to be the subject of bi-lateral negotiation – not to international law as defined by the United Nations. To acquiesce to this desire would be to invite an eternally recurring Melian Dialogue, in which the Athenian ambassadors argued that there was no shame in submitting to a stronger enemy offering reasonable terms.

Australia is, to its shame, familiar with such a scenario. It withdrew from the maritime boundary dispute resolution procedures of UNCLOS in 2002, so that it could not be compelled into legally binding international arbitration. It then negotiated a temporary boundary with East Timor that ensured the bulk of oil and gas sits within Australia’s territory. East Timor’s negotiating team was then bugged during subsequent discussions in 2006, an act that attracted a strong rebuke from the International Court of Justice.

As Australia did not allow UNCLOS, as independent arbiter, to intervene, the temporary border which favours Australia’s economic interests has remained in place. Following its consistent refusal to negotiate a permanent maritime boundary, Australia is now the first country to be forced to appear before a United Nations conciliation commission at the permanent court of arbitration.

How soon we forget the lessons of the past. If we continue to pursue narrow self-interest in preference to patient collective action, the nations of the world will once again unite as they walk hand-in-hand to the slaughterhouse.

If Australia is committed to multilateralism and international law, it must uphold its commitment even if it compromises its immediate interests or complicates domestic political circumstances.

@AndrewHunter__