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Australian Year Book of International Law |
Shirley Scott[*]
One of the issues central to assessing the political efficacy of international law is the nature of the relationship between international law and policy at the State level. Do questions of international law play an integral part in the formation and implementation of foreign policy or are legal advisers rarely consulted and their advice not usually heeded when major decisions are made? The role of international law in the formation and conduct of foreign policy is usually addressed in studies of “compliance”, the implicit goal of which is to ascertain how best to promote compliance with international law.[2] This article uses case studies of the role played by international law in the formation and conduct of Australian foreign policy regarding marine resource issues between 1930 and 1960 to demonstrate the limitations of any explanation of the foreign policy-international law relationship grounded in the concept of compliance. Drawing on a theorisation of international law as ideology, it suggests that we need to move beyond the “compliance” concept if we are to reach the best possible understanding of the international law-foreign policy dynamic.
Views as to the importance of international law for the making, and outcomes, of foreign policy decisions differ widely, reflecting broad theoretical traditions. The vast majority of international lawyers would accept the legal positivist assumption that decision-makers should take international law into account since law provides norms of conduct and a means by which world politics might be more harmoniously ordered. Neo-liberals share a similar perspective, accepting the contribution international law can make towards realising the possibility of peace, prosperity and progress. Political “realists”, on the other hand, believe that foreign policy is based on a rational calculation as to what will enhance the power of the State; for realists (and neo-realists) international rules and norms have little bearing on the outcomes of State behaviour.[3]
It may seem surprising that such oppositional assessments of the influence of international law on national policy formation are able to persist. There is little doubt that one reason for the continued polarisation of views is the methodological difficulties involved in investigating the place of international law in the formation and conduct of foreign policy.[4] Interviews with currently serving government officers are not fully satisfactory as those individuals are not free to speak with complete openness even if they know the whole story. And of course from the external evidence it is not always possible to ascertain the extent to which the advice of lawyers was taken into account in a particular scenario. This means that it is easy to make available evidence “fit” what one expects based on the theoretical lens through which one views world events — or at least to use one’s findings only to modify initial premises. The best known such assumption is probably that States obey most of their legal obligations most of the time,[5] an assumption that legal positivists, idealists and liberals have used to refute realist scepticism regarding the efficacy of international law.
While an understanding of the impact of international law on foreign policy decision-making varies considerably, the different theoretical perspectives have in common an analysis framed in terms of “compliance”. Indeed, the very question as to the relationship between international law and foreign policy decision-making and implementation is generally treated as synonymous with that as to whether or when States comply with international law. This point was encapsulated in the title of a 1992 article by Antonio Cassese which addressed the question of the degree to which legal advisers influence foreign policy decisions.[6] The title read: “The role of legal advisers in ensuring that foreign policy conforms to international legal standards”. Under the sub-heading “International law’s potential impact on foreign policy”, Cassese began: “Before moving on to consider whether there are means available for enhancing States’ compliance with international legal standards…”[7]
The concept of compliance is closely related to what can be dubbed the “rule-book” image of international law. If non-lawyers were presented with a large, heavy and well-worn volume and told that this contained all the rules of international law, they might well believe it. According to the rule-book image of international law, a decision-maker faced with a decision as to how to act calls in the legal adviser. The legal adviser then consults the relevant page in this large volume, reads what it says must be done, and advises the decision-maker accordingly. The decision-maker should, of course, do as their advisers tell them to, and, if they do, the State will have “complied” with international law. The corollary to the “rule-book” image of international law for idealists, liberals and legal positivists is that, if States were to take sufficiently seriously their obligations under international law, then international law could be expected to do better at promoting peace, saving the world from environmental degradation and so on. The rule-book image of international law can be clearly seen in much of the recent work on compliance theory undertaken in relation to international environmental regimes. Implicit in this work is the assumption that if a regime is to achieve its goals ways must be found by which to enhance State compliance with the rules of the regime.[8]
This article does not seek to refute the idea that the effectiveness of international law is determined in part by levels of compliance, but to suggest that the relationship between international law and foreign policy is more complex and nuanced than can be theorised in compliance terms alone. Some writers have pointed to the inadequacy of thinking of compliance in simple dichotomous terms;[9] or, indeed, of thinking of international law in terms only of rules.[10] But to date we have had no new framework within which to assess the influence of international law on foreign policy which both takes us beyond the “rule-book” image and yet which can explain the persistance of that image in legal rhetoric. Understanding the role played by international law in foreign policy has thus been constrained, not only by methodological difficulties, but by limitations inherent in the very concept of compliance. Compliance, and the rule-book image of international law with which it is closely associated, assume the possibility of non-compliance, of a simple dichotomy of behaviour between legal and illegal, of rules pre-dating policy, of rules as shared by all parties involved in a dispute, and of the possibility of the objective application of those rules to the case in hand. This article assesses the utility of the compliance concept and the rule-book image of international law against three related case studies. Having provided a practical example of the limitations of thinking of international law and foreign policy in “compliance” terms, it goes on to suggest a fresh approach to explaining the relationship of international law to foreign policy based on a conceptualisation of international law as ideology.
An historical methodology involving research at the level of archival investigation has much to commend it as a way of investigating the relationship of international law to foreign policy, because it permits analysis of decision-making at a very low level.[11] The following summary of Australian foreign policy regarding several related maritime issues in Australia’s relationship with Japan between 1930 and 1960, draws heavily on material located in the National Archives in Canberra, Australia.
The bilateral relationship between Australia and Japan has been at essence an economic one. This economic relationship was already strong before the Second World War; by the mid 1930s Japan was Australia’s second largest customer after Britain and the third largest source of imports.[12] Despite the complementarity of the economies, however, relations have not always been harmonious. Japan has been regarded by Australia as not only a source of opportunity but of threat. Japan was most obviously a threat to Australia during the Second World War but the perception of threat on the part of Australians was there before the Second World War and has lingered since.[13] The theme of opportunity versus threat is not only evident in the bilateral relationship as a whole but is also identifiable within the maritime dimension of that relationship. Japan has been important in the development of maritime industries in Australia. The Australian pearl-shelling industry, for example, relied for many years on Japanese labour and the cultured pearl industry was developed on Japanese technical expertise.[14] But the increasing utilisation by the Japanese of what Australians regarded as “their” marine resources was perceived as a threat by Australians in the decades after the Second World War. Given the rapid transformation taking place at this time in the law of the sea and in the balance between the rights of coastal and distant-water fishing nations, the stage was set for some interesting episodes in Australia’s relations with Japan.
The pearl-shelling case study concerns Australia’s efforts to limit Japanese pearl-shelling operations off Australia’s northern coast. The Japanese began their operations in the 1930s,[15] sending modern fleets to waters off Australia in competition with the less efficient Australian industry. Australian policy-makers, motivated by both economic and conservation concerns, looked to international law as a means of curbing Japanese operations. But Japanese fishing was, for the most part, carried out well outside the territorial sea and there appeared to be no grounds in international law for Australia taking action. The Australian Government turned instead to municipal legislation.[16] Public feeling had been aroused by press reports of pearlers trespassing on Aboriginal reserves and bartering tobacco and clothes for Aboriginal women. It was generally assumed that the “lubra trade”, as it was referred to, involved the crew of both Australian and Japanese vessels. In 1937 the Australian Government thus amended section 19 of the Aboriginals Ordinance to make it illegal to enter in a vessel, without authority or unless necessary for the protection of life, the territorial waters adjacent to a reserve for Aborigines.[17] It is interesting to note that the evidence indicates that, while the crews of the Japanese vessels often landed for fresh water and wood and employed local Aborigines as pilots, the “trade” was carried out only by the crews of the Australian luggers, albeit that they were mainly Japanese and Malays.[18] In any case, this attempt on the part of the Australian Government to limit Japanese pearl-shelling off Australia’s northern coast was clearly unsuccessful. The first Japanese against which the law was brought to bear won their cases against the Commonwealth and the remaining cases were settled out of court.[19] This episode in Australia’s relations with Japan is a fascinating one, particularly given its timing in the late 1930s.
Australian officials watched with interest the emergence of the continental shelf doctrine in the years following the Second World War. It appeared as though the doctrine might offer a basis on which Australia could regulate Japanese pearl-shelling off the Australian coast. But, the International Law Commission’s draft articles on the continental shelf stated that sedentary fisheries should be regulated as a resource of the sea rather than of the continental shelf.[20] Australian officials looked elsewhere. A Fisheries Bill, providing for the conservation and control of sedentary fisheries outside territorial limits, was prepared in 1949, but not proceeded with at the request of British authorities, who believed it might be interpreted as an extension of the three-mile limit and hence prejudice the British position in the Anglo-Norwegian fisheries case.[21] Hopes to have appropriate provisions written into the 1951 Peace Treaty with Japan were also dashed by the United States, although Japan agreed to “enter promptly into negotiations with the Allied Powers so desiring for the conclusion of bilateral and multilateral agreements providing for the regulation or limitation of fishing and the conservation and development of fisheries on the high seas”.[22]
Australia entered into negotiations with Japan in 1953, the first bilateral negotiations after the War, with what the Solicitor-General, Sir Kenneth Bailey, recognised to be a weak legal position.[23] The resultant bilateral dispute was played out through the legal tussle between the traditional principle of freedom to fish on the high seas versus the coastal State’s right to regulate sedentary fisheries on its continental shelf. Australia agreed to Japan’s proposal that the dispute be taken to the International Court of Justice (ICJ).[24] Annual agreements were made on pearl-fishing quotas pending agreement as to the wording of the special agreement by which to submit the issue to the Court. Australia played for time; even in 1956 legal officers in Britain and Australia rated Australia’s chances of a favourable outcome at or slightly above 50 per cent.[25] Meanwhile Sir Kenneth Bailey engaged in vigorous diplomacy with members of the International Law Commission and elsewhere, without which sedentary fishes would most likely not have been included in the Continental Shelf Convention of 1958.[26] It was not until the conclusion of this treaty and its entry into force in 1964 that Australia’s stand against Japanese pearling in the Arafura Sea could be said to have at last acquired a firm basis in international law.
A decade later, in the case of Japanese tuna fishing, Australian officials did not seek legal support for the favoured policy stance, but instead made policy choices so as to take advantage of changes to international law. It was only when Australian officials were confident that the law of the sea was evolving so as to include the right of a coastal State to declare a 12-mile fishery zone that they were prepared to act. If anything, policy concerns regarding tuna limited — or at least delayed — Australian actions in declaring the zone because there was a fear of setting a precedent unhelpful to New Zealand in its contemporary dispute with Japan.[27] The extension of Japanese tuna fishing to waters off Australia had in the 1950s and 1960s been facilitated by Japanese fishermen enjoying virtually free access to Australian ports.[28] As an increasing number of countries declared fishing zones beyond their territorial sea, Australian officials decided to do likewise. Australia declared a 12-mile fishery zone and entered into bilateral negotiations with Japan in 1968. The negotiations were protracted and resulted in an agreement that permitted Japan to phase-out its fisheries inside the 12-mile zone over a seven-year period during which it could still have access to four Australian ports.[29] On 10 January 1969, the Minister for Primary Industry, Mr Anthony, announced publicly that unrestricted entry to Australian ports by foreign fishing vessels, except in cases of genuine and unforeseen emergency, would cease on 31 January.[30]
This third case study concerned Australian diplomacy more with the United States than with Japan because of the dominance of the United States over Occupation policy. During the years of the Occupation of Japan following the Second World War, Australian officials, under Herbert Vere Evatt, Minister for External Affairs from 1941 to 1949, expended considerable diplomatic energy in attempting to persuade the United States not to permit the resumption of Japanese Antarctic whaling pending the conclusion of a peace treaty.[31] The resumption of Japanese whaling was more of a symbolic than a direct threat to Australia. Australian diplomatic efforts were apparently unsuccessful in that General Douglas MacArthur, Supreme Commander of the Allied Powers, authorised an expedition to Antartica each year of the Occupation from the 1946-47 season onwards. But an examination of the diplomatic exchanges from files of the National Archives of Australia, as well as the United States National Archives, reveals that the various types of arguments advanced by Australian officials each met with different internal reaction in the United States. While justifications for Australia’s policy position couched in economic or security terms carried little if any weight with United States officials, those which identified a possible breach of international law did lead to a re-evaluation of policy or at the very least of procedure.[32]
How adequate, then, is the rule-book image of international law, with which “compliance” is integrally related, as a conceptual framework by which to account for the role played by international law in the case studies related above? The rule-book image does “fit”, for example, insofar as memos and letters were often written to the Attorney-General’s Department from either the Department of Primary Industry (or its predecessor the Department of Commerce and Agriculture) or from the Department of External Affairs, requesting advice on certain points of law. But what the rule-book image of international law, on which compliance studies are based, manifestly fails to capture, is the dynamic taking place between policy-making and international law. It was not a case of applying rules which, at that point of time, were sufficiently static to be contained in one large tome. Rather, there was a dynamic in operation evident during the process of policy formation with the toing and froing between policy specialists and legal advisers. It could also be seen functioning at the system level, between Australia (and other States) and the system of international law as a whole.
Conceptualisation of foreign policy formation in terms of compliance assumes that the law is always there prior to the formation and external execution of policy. There has to be a law with which to comply! This was largely true in the case of tuna, where it was the increasing clarity of the international law regarding the extent of coastal State jurisdiction over fisheries that encouraged Australian officials to declare a 12-mile fishing zone and to enter into negotiations with Japan. But this notion of compliance is dramatically at odds with the situation in the post-War pearl-shelling saga, in which it was the policy imperative that led Australian officials to seek support for their position in international law and to play an active part in the development of the continental shelf doctrine. It is true that, in the tuna case study, Japan was looking to increase its fisheries in coastal waters off Australia and that this lent a sense of urgency to the policy decision to declare the 12-mile fishing zone. In the case of pearl-shelling it was not a crisis in the bilateral relationship that led Australia to explore its legal options; rather, Australia took action to take advantage of changing State practice on the subject in order to protect itself from future Japanese activities. So in one case the law led to the policy; in the other, policy led to active involvement in the law.
Not only does the compliance paradigm assume that the law is prior to the policy issue in question, but it also assumes that all involved own the same rule book. Australia and Japan were not of course working from the same rule book in either the pearl-shelling or the tuna case study. And, even if they had been, the respective legal advisers might not have consulted the same page! Part of the difficulty for the Australian officials opposing the resumption of Japanese Antarctic whaling during the Occupation was deciding on what legal grounds United States policy could be challenged. Australian representatives argued against the legal authority of the Supreme Commander of the Allied Powers being able to unilaterally authorise the expeditions and queried whether the United States, as a party to the 1947 International Whaling Convention, could authorise an expedition against the wishes of its co-signatories.[33]
This is a practical demonstration of the conceptual difficulties inherent in compliance studies. It is not that thinking in terms of compliance is wrong so far as understanding the relationship between foreign policy formation and international law is concerned, but rather that such thinking is limited by the understanding of international law from which it is derived. Even here it is not that the rule-book image of international law is wholly wrong. It may not be possible to delineate a sharp distinction between politics and law, but neither is international law as “political” as pure politics. There are some points of international law on which it would be possible to get widespread agreement. To analyse the relationship of foreign policy to international law in terms of compliance is to view the relationship of foreign policy to international law from within the discourse of international law rather than to step outside legal rhetoric and situate that discourse in its political context.[34]
If we are to move beyond the constraints imposed on our understanding of the relationship between international law and foreign policy by the concept of compliance, we will need to rethink the understanding of international law from which the idea of “compliance” is derived. As Benedict Kingsbury has commented “the concept of compliance with law does not have, and cannot have, any meaning except as a function of prior theories of the nature and operation of the law to which it pertains.”[35] If we are to understand compliance more fully — or what we might do well to refer to more broadly as the relationship of international law to foreign policy formation and implementation — we need to work with the best possible understanding of the nature of international law.
The apparent contradiction between the rule-book image of international law inherent in most compliance studies and the reality of the international legal system can be explained by a theorisation of international law as ideology.[36] This posits that the rule-book image of international law serves as an ideology in world politics. The term “ideology” refers here to a principle or small set of inter-related principles integral to a structure of socio-political power. Actors uphold the ideology in their dialogue with each other as a requirement for membership in that socio-political power structure. Those actors may not, however, necessarily believe the ideology to be true. Indeed, as will be seen, an actor needs to recognise the distinction between the ideology and reality in order to use the ideology to their political advantage. According to the ideology of international law, international law is ultimately distinct from, and superior to, politics. The most fundamental difference between the understanding of international law contained in a theorisation of international law as ideology and the understanding of international law held by realists, legal positivists, and liberals is that this theoretical paradigm is concerned primarily with the realm of discourse rather than actions. From the perspective of a theorisation of international law as ideology, the obligation on a State is not somehow to comply with international law, as measured by its actions, as to uphold the ideology of international law. This is done when representatives of the State engage in discourse premised on the verity of the component principles. Representatives of a State demonstrate acceptance of the existence of a clear legal-non-legal categorisation of behaviour by always presenting their own position as legal and that of another State with which it is in some degree of dispute as not legal.
States are required to uphold the ideology by engaging in discourse that assumes the ideology to be true. But this gives decision-makers much more scope for action than the compliance paradigm would suggest. There are, for example, several component principles of the ideology and so if it is not easy to uphold one of them in a particular situation there are others from which to choose. The primary principle that constitutes the ideology states that international law is ultimately distinguishable from, and superior to, politics. Other principles state:
• It is possible to distinguish objectively between legal and illegal action.
• The rules of international law are compulsory.
• International law is politically neutral or universal in the sense that it treats all States equally.
• International law is, at this point of time, (virtually) static.
• International law is (virtually) self-contained.
• It is possible to apply the rules of law objectively so as to settle a dispute between States.
• International law is (virtually) comprehensive — it can deal with any issue that arises between States.
Throughout the case studies summarised above there are many references to international law which assume these principles to be true. Australia upheld the notion that international law is ultimately distinguishable from politics, for example, when it argued, without reference to the bilateral dispute in which it was involved, that sedentary fisheries should be included with minerals as resources of the continental shelf over which the coastal State has sovereign rights.[37] And, in its suggestions that the pearl-shelling dispute be taken to the ICJ,[38] Japan reinforced the assumption that it is possible to apply international law objectively to settle any issue that arises between States. In Australia’s interactions with Japan regarding marine resources there were no examples of Australian officials making a statement that contradicted the rule-book image of international law.
How, then, can a State — or its representatives — go beyond the obligation to uphold the ideology of international law, so as to use the ideology as a tool by which to improve its position? Most important here seems to be to recognise the difference between the ideology — or that rule-book image of international law — and reality.[39] It is significant that in the case studies outlined above the ideology was not upheld in internal interactions through which policy and tactics were formulated. Indeed, the difficulties involved in ascertaining the current state of international law and the political embeddedness of the rules in question were fully recognised by Australian officials, for example, in deciding if and when to declare a fishery zone or an assertion of rights over the continental shelf. Nor were Australian officials taken in by the rhetoric of Japan as it upheld, and hence helped reinforce, the ideology. Australia publicly upheld the ideology of international law and thereby indicated confidence in the legality of its position by agreeing to go to the ICJ even though officials were aware that if the case did get to the Court in the near future the decision would probably go against Australia. Officials then acted to try to delay the case getting to the Court while in the interim Japan fished in accordance with a provisional regime satisfactory to Australia. If that situation were viewed in the binary framework of “compliance” to assess which one out of Australia or Japan was acting “legally” and which “illegally” it would have to be Australia that was deemed not to have been “compliant”; Australia was in a much weaker legal position than Japan. But by recognising the discrepancy between the ideology and reality Australian officials were able to fulfil Australia’s obligation to demonstrate acceptance of the ideology while using it to Australia’s advantage.
If, as a decision-maker, one is to use the ideology to the advantage of one’s State it appears valuable, while oneself being fully aware of the discrepancy between the ideology and reality, to try to get one’s counterparts in other States to believe that the ideology is true or at least to encourage them to fulfil their obligation to uphold the ideology in such a way that suits one’s own State. Japan tried to convince Australia that international law upheld freedom of fishing on the high seas while no doubt hoping that Australian officials would leave them free to exploit resources off the Australian coast. This suggests that for those attempting to draw on the ideology of international law in their diplomacy with another State, the art of using law as a means of pursuing national interests is the art of drawing on the obligation of another State to play its part in upholding the ideology in such a way that the rules of international law discriminate against the other party, but do so in such a way as to retain the appearance of law as neutral, both in construction and in operation.
It is much harder to uphold the ideology where the law is relatively clear-cut but does not readily support one’s own position; it appears to be important to make sure that, so far as possible, current law supports one’s own position. Hence Australia’s dedication to helping shape the emergent continental shelf doctrine. Where use of the ideology did not appear to be to their own advantage because the law was fairly clear-cut and did not support the policy position of the State, officials drew on alternative justifications for their policy positions. In the first negotiations over pearl-shelling Australia attempted to use moral argument, resting much of its case on Japan’s need to re-establish itself as a member of the international community. But where there is a choice of legal versus other arguments, legal appears the stronger. While Australia tried to argue on security and other grounds against the resumption of Japanese Antarctic whaling after the Second World War, it was only legal arguments that caused United States officials to go any way towards re-evaluating policy.
The ideology of international law can be upheld in varying degrees. It is being weakly upheld where it is relatively easy to see the discrepancy between the ideology and reality. Thus, while a theorisation of international law as ideology shifts the focus from the actions of a State to its rhetoric, it is possible for the actions of a State to undermine such rhetoric by illuminating the discrepancy between the ideology and reality of international law. It would have been difficult for Australian officials to delay indefinitely taking the dispute to the ICJ while continuing to speak with the Japanese on the basis of an agreement that the ICJ was a forum in which the dispute could be satisfactorily resolved. But as international law shifted more towards support for Australia’s position, Japan was less keen to proceed to Court anyway. In formulating policy, officials appeared to be trying to reconcile their otherwise ideal course of action with what can be understood in terms of a goal to uphold the ideology as strongly as possible. It appeared to be in their best interests to do so.
Political realists generally assume international law to be virtually irrelevant to foreign policy; legal positivists believe that States should comply with international law even if recognising that they do not always do so. A theorisation of international law as ideology suggests that international law does exert a normative obligation on States, but that this can best be understood as an obligation to uphold the ideology of international law rather than to behave in any particular way. Actions are important to the extent that they facilitate or hinder a State strongly upholding the ideology. In contrast to the binary mode of compliance thinking, this approach shows that in a given situation there are a number of ways in which the ideology can be upheld and the ideology can be upheld in varying degrees. The focus is thus shifted away from the notion of a State complying or failing to comply with international law towards a much more subtle understanding of the place of international legal discourse in the formulation and conduct of foreign policy.
A theorisation of international law as ideology allows us to see why the rule-book image of international law is so pervasive, despite the fact that any international lawyer would readily acknowledge that it is not an accurate portrayal of the system. The rule-book image of international law in fact equates with the ideology from which international law derives its political influence. The compliance concept derives from, and hence its use serves to reinforce, that ideology. Discussion of the behaviour of States in terms of compliance is not wrong but operates within the discourse of international law. The need has been to step outside the rhetoric of international law and to find the means by which to discuss, in broader terms, the relationship of international law to the formation and conduct of foreign policy.
How, then, can we move beyond the case studies in question and use this perspective to enhance understanding of the place of international law in world affairs more generally? One of the most interesting implications of this approach pertains to why some actions that within a compliance paradigm would be termed “illegal” attract much more universal condemnation than others. A theorisation of international law as ideology suggests that it is possible to act in a way that in the compliance paradigm would most likely be deemed illegal, while at the same time fulfilling one’s basic obligation to uphold the ideology. Thus, for example, in accounting for its actions that could be regarded as “illegal” a State can justify them on non-legal, often moral, grounds while nevertheless upholding the ideology by stressing the illegality of the other side’s actions.
A State can fulfil its fundamental obligation to uphold the ideology but do so in such a way that almost advertises the discrepancy between the ideology and reality and it is then that that State can expect censure. To give just one example. When the United States withdrew from the Nicaragua case, its agent did not denounce international law, but said that the United States had been “constrained to conclude that the judgment of the Court was clearly and manifestly erroneous as to both fact and law”.[40] It was as if the judges had opened the rule book to the wrong page. Implicit in the statement of the United States agent was the assumption that it is possible to know objectively what the law is on any point. But the United States agent came perilously close to denying the truth of the ideology since, if judges of the International Court are not able to find their way around the rule book, who is? Were all States to uphold the ideology so weakly that the discrepancy between the rule-book image of international law and reality were as blatant as this, the ideology which underpins the system as a whole might well be weakened. It is perhaps in this sense that one can best understand a recent reference to the United States as a “rogue superpower”.[41]
[1] This is a modified version of a paper presented at “Wealth, Security and Survival: Implementation, Compliance and Enforcement in International Law”, a conference organised jointly by the Australian and New Zealand Society of International Law and the New Zealand Branch of the International Law Association, held at the Law School, Victoria University of Wellington, 8-10 July 1999.
[*] Lecturer in International Relations, School of Political Science, University of New South Wales, Sydney.
[2] There is a considerable body of literature on compliance with international law, produced both by scholars of international law and of international politics. Some of the ‘classic’ contributions include: L Henkin, How Nations Behave: Law and Foreign Policy (1968) and R Fisher, Improving Compliance with International Law (1981). Influential in recent years have been T Franck, The Power of Legitimacy among Nations (1990) and A and AH Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995). A substantial amount of recent literature on compliance focuses on international environmental law: see eg, J Cameron, J Werksman and P Roderick (eds) Improving Compliance with International Environmental Law (1996) and E Brown Weiss and HK Jacobson, Engaging Countries: Strengthening Compliance with International Environmental Accords (1998).
[3] While no individual theoretical writer on realism necessarily advances a position as extreme as this, the assumption of the virtual irrelevance of international law pervades realist literature. See F Boyle, World Politics and International Law (1985) at 6-7. For more detailed discussion of these three positions and their exponents, see CC Joyner, “International law and the conduct of foreign policy” in S Scott and A Bergin (eds), International Law and Australian Security (1997) 5 at 6-9.
[4] See, eg, the comments by A Cassese in “The role of legal advisers in ensuring that foreign policy conforms to international legal standards” (1992) Michigan Journal of International Law 141; of RJ Beck, “International law and the decision to invade Grenada: a ten-year retrospective” (1993) 33 Virginia Journal of International Law 811; and W Levi, Law and Politics in the International Society (1976) at 163.
[5] See B Kingsbury, “The concept of compliance as a function of competing conceptions of international law” in E Brown Weiss (ed), International Compliance with Nonbinding Accords (1997) 72 at fn 1. Chayes and Chayes point out that the dictum is little more than an assumption in A Chayes and AH Chayes, “On compliance” (1993) 47 International Organization 177.
[6] Cassese, n 4 above, at 159-160.
[7] Ibid.
[8] Some writers recognise that even if the States involved did all comply, the regime may not necessarily be effective since other factors — such as the design of the rules or scenarios more recent than the regime design — also help determine the degree of regime effectiveness. PM Haas, “Why comply, or some hypotheses in search of an analyst” in Weiss, n 5 above, at 21.
[9] See, eg, OR Young, Compliance and Public Authority: A Theory with International Applications (1979) at 150.
[10] See, eg, R Higgins, Problems and Process: International Law and How We Use It (1994).
[11] As with any methodology, it does have limitations. Most obviously, archival investigations cannot be used to investigate contemporary events and the researcher must have access to the pertinent records.
[12] A Rix, “Australia and Japan: The reality of the ‘special relationship’” in FA Mediansky and AC Palfreeman (ed), In Pursuit of National Interests: Australian Foreign Policy in the 1990s (1998) 157 at 159.
[13] A Hiroshi, “Japan and Australia: ambivalent partners” (1982) 29 Japan Quarterly 200.
[14] For example, in 1963, V Wells, a pearling inspector, wrote: “The managers and principals of the Australian companies have little knowledge of the actual technical and biological details of the pearl culture and whilst realising they are absolutely dependent on the Japanese technicians they show little desire in strengthening their bargaining position because they are assured of good profits” Australian Archives A1084/24 159/1/10.
[15] SV Scott, “The Japanese lugger case episode: the triumph of the rule of law?” (1997) 3 Australian Journal of Legal History 97 at 97-98.
[16] Ibid.
[17] Commonwealth of Australia Gazette, No 18 (21 April 1937) 693-694.
[18] Scott, n 15 above, 97 at 109.
[19] Ibid. at 106-107.
[20] Draft articles on the continental shelf and related subjects. Annex to Report of the International Law Commission to the General Assembly. Report of the International Law Commission covering the work of its third session, 16 May–27 July 1951, UN Doc A/1858, Part II.
[21] “Anderson, Director of Fisheries to Mr E McCarthy, Department of Commerce and Agriculture, 9 June 1949” Australian Archives A609 84/1/10 Pt 1. See also Australian Archives A432 53/3122.
[22] Article 9, Treaty of Peace with Japan, opened for signature at San Francisco 8 September 1951, with Related Documents, DOS Publication 4561, released May 1952, at 5.
[23] “Secret memorandum, KH Bailey to the Attorney-General” 7 July 1953 Australian Archives A432 53/3122.
[24] SV Scott, “The inclusion of sedentary fisheries within the continental shelf doctrine” (1992) 41 The International and Comparative Law Quarterly 788 at 800.
[25] “Legal aspects of the Pearl Fisheries Dispute” Australian Archives A1838/T184 I3103/10/1/1 Pt 20.
[26] Scott, n 24 above, at 788-807.
[27] SV Scott, “Negotiation of the 1968 Agreement on Fisheries between the Commonwealth of Australia and Japan” Eighteenth Annual Conference of the Australian and New Zealand Society of Law and History, Newcastle, 9-11 July 1999.
[28] “Japan-Australia relations: fisheries” Australian Archives A1838/2803103/10/8/3 Pt 7.
[29] Agreement on Fisheries Between the Commonwealth of Australia and Japan 22 ATS 1969.
[30] Anon, “Entry of foreign fishing vessels restricted” (1969) February, Australian Fisheries 3.
[31] SV Scott, “Australian diplomacy opposing Japanese Antarctic whaling 1945-1951: the role of legal argument” (1999) 53 Australian Journal of International Affairs 179 at 186-191.
[32] Ibid.
[33] Ibid. at 186-191.
[34] See my argument in “Building bridges with political science?: a response from the other shore” [1995] AUYrBkIntLaw 6; (1995) 16 Aust YBIL 271.
[36] See SV Scott, “International law as ideology: theorising the relationship between international law and international politics” (1994) 5 European Journal of International Law 313; “Explaining compliance with international law: broadening the agenda for enquiry” (1995) 30 Australian Journal of Political Science 288; Scott, n 34 above; and “Universalism and title to territory in Antarctica” (1997) 66 Nordic Journal of International Law 33.
[37] Scott, n 24 above, at 795.
[38] “Cable 492, Tokyo to External Affairs” 8 October 1953 Australian Archives A1838/T184 I3103/10/1/1 Pt 8.
[39] Of course, from a post-positivist perspective, all realities are contestable. By “reality” we can really only mean “reality as widely perceived”.
[40] Letter from the United States agent to the Court of 18 January 1985: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 17.
[41] SP Huntington, “The lonely superpower” (1999) 78 Foreign Affairs 42.
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