Wednesday, 4 July 2012

Speech - Legal Education for a Global Community

Thank you very much for that kind introduction. I begin by acknowledging the first Australians on the land we meet and the cultures we celebrate as one of the oldest continuing cultures in human history.

To those of you who are guests from around the world welcome to Australia. And to those of you who are guests from other far flung states in our glorious Commonwealth, welcome to Sydney. To those of you have come from Queensland, I welcome myself as well.


Also to our distinguished representatives from China, I appreciate the fact that you have travelled here for this conference. I have also seen where you all come from.

(speaks in Chinese)

It’s an impressive representation from our friends from China and as we just heard, the extraordinary advances in China’s legal education which have been achieved.

I first went to live in China about 30 years ago and I saw the aftermath of the Cultural Revolution. I saw very thin opportunities for students of law in those days and these have been very significant advances.

Those of us who know China, like China and spend a lot of time in China as I do, will appreciate how far China has travelled and also China’s recognition itself of how far it still has to travel in the future.

I was a bit puzzled to receive an invitation to open this conference, as has been delicately and diplomatically noted, I have never studied a day of law in my life. The only skill I bring to the table is a degree in Classical Chinese Poetry.


My remarks to you today are three fold.

Firstly, I’m stating the obvious but none-the-less important, that globalisation now affects everything that we do, in every sphere of what we do.

And the second argument is that because in Asia we find the full bloom of globalisation in the 21st century, driven by the major economies of Asia and driven within them by China itself; there is I believe a large opportunity for this country, Australia as the western country within Asia, to become a greater and greater repository of the knowledge of Asian law and the knowledge of Chinese law in particular.

My third argument beyond all that is in the realm of international public law, where we have had many controversial debates in recent decades. There is a wider argument for Australia’s engagement as well, in the unfolding doctrines of international humanitarian law and most controversially in the area of the Responsibility to Protect.

So I will seek to address those three things briefly in my opening remarks.

Firstly on globalisation itself.

We are at the cross roads of a phenomenal change in human history. The international relations scholars have described it for a long, long time as the collapse of the great divide. If you look at the great divide of international relations theory, it has always separated out the foreign from the domestic, the external from the internal, the international from the national. These are concepts which made a lot sense in the 19th century, they made some sense in the first half of the 20th century and  they made less sense in the second half of the 20th century. They almost make no sense today, when you see that globalisation of all things, and that we do.

Of course the fundamental tension here, given the reality of globalisation, is the continuing doctrine of the national sovereignty of states which we have had since the days of the treaty of Westphalia.

Let’s look at our most current and recent example of where this becomes fundamental to us all. And that’s the global financial crisis. There you see the evidence of the globalisation of economic and financial activity to the point of where it affects all states, it affects all economies, it affects even the financial viability of an individual university, it affects the number of students who travel abroad to study at this university, the fees flowing into the faculty of law at this university and therefore the viability of continued international education and employment.

Therefore, when you look at something like the global financial crisis and the fact that the volumes of global capital and the volumes of global capital which are traded in national and international environments, vastly exceed the capacity of a single nation state to regulate those flows; you are automatically put into a position where you have to engage in forms of global economic and financial governance which had not been thought of in previous decades and certainly not in previous centuries.

It is not just however the globalisation of economic and financial transactions that we are talking about, where the sheer volumes of globally mobile capital defy the absolute sovereignty of states to regulate them. We are also talking about the globalisation of security of which the most obvious example is the impact of terrorism on multiple states.  We are talking about globalisation also of our concerns with the movement of peoples around the world in increasingly large numbers involving every branch of law, whether it is purely migration law, through to individual criminal legal matters through to the whole question of the regulation of globally infectious diseases.

This in quantitative terms is a vastly new phenomenon and therefore the imperative it places upon all forms of global cooperation is greater than it has ever been in human history. That is dictated purely by the mathematics of the quantum of global engagement as opposed to the quantum of international engagement that we have seen measured against previous periods in history.

Mention has already been made of one simple illustration in terms of domestic consumption of apples in this country. We’ve used global dispute resolution mechanisms provided by the World Trade Organisation, which in turn rests on the body of global trade law which has been decades in its evolution and is still to be perfected.

Nonetheless, I want to point you to this; the structural dynamics of globalisation are now such that in every field that you endeavour, not just in acts of political cooperation but underpinning that, the fabric of international legal engagement both in public law and in private law and international commercial law, will become greater and greater and greater.

The premium therefore, which this places on your profession to become a truly global profession is therefore at its foremost.

The second point I’d make about Asia itself is simply this - we are witnessing this huge global change driver, this huge global mega change, called globalisation itself, which is the volume of global transactions which is measured against the volume of internal national transactions and is changing rapidly.

That is meshed with the fact that simultaneously we are seeing a great change also, a great mega change, in the global distribution of power. Here of course it is referred to normally as the rise of Asia and within the rise of Asia, the rise of China itself.  

Let us simply contemplate one core fact, which should cease all of our attention.

Sometime in the coming decade, most economists have concluded and agreed that China will become the world’s largest economy.

Contemplate that fact for a moment. This will be the first time since George III, that a non-Western, non-democracy will be the largest economy in the world. It is arguably the first time in 500 years, since the Spanish empire, that a non-Western country has had the largest economy in the world.

Therefore, this of itself is an historic event and therefore the challenges that we all face, with our friends from China, our friends from the wider region and our friends across the world, is ensuring that this change is managed peacefully. But also managed effectively in a stable manner, transactionally, including through the law, which is a paramount challenge for us all.

To state the obvious, China itself does not emerge from the tradition of the Magna Carta. China itself has not been through the experience of the great liberal reforms that we have seen in Europe, starting with the rise of modern nation states, through to the Glorious Revolution, through to the various reforms of the nineteenth century and the general emancipation of entire voting urban populations in the twentieth century, including the rise of women to participate in the political process. 

China has not been a part of that particular evolution. China has not been party to that legal evolution. The evolution of basic concepts of rights, of human rights, is of a different traditional origin in our tradition to that which has been the case in China.

That is not to say that rights do not exist in the Chinese tradition, they do. Hence careful study of the Chinese classical literature will reveal that to be the case. It is however, differently explained.

But my overall point is this.

As this large Chinese power becomes the largest economy in the world, in this decade we are living in now and when you are teaching in your universities, we are at the point where the rubber well and truly hits the road, between different traditions of laws, conflicts of laws and frankly, simply things being lost in translation.

This creates again, a premium on your profession to try and bring these two traditions together.
But there’s a further point I would make also, beyond China, is the rise of Asia itself.

If you project out over the next twenty to twenty five years it’s not just China that we are speaking about, but more than five of the world’s top ten economies will come from our region; China, India, Japan, Indonesia, Korea; these will all be in the world’s top ten economies.

Therefore, the premium not just to understand the unfolding phenomenon that is China itself, but the wider phenomenon of rising Asia, is imperative for those engaged in the teaching of law in this country and dare I say across the colloquial west.

Indonesia for example, few people observe this country, by the time you reach 2030, the projections are that it will itself be the seventh largest economy in the world and considerably larger than this one Australia.

Therefore, given that Indonesia is our neighbour, I would hate to ask the question of this room, who is an expert on Indonesian law? How many experts of Indonesian law do we have in this country? Indonesian commercial law, Indonesian criminal law and the rest in terms of Indonesia’s legal engagement with the rest of the world. These are imperatives which are facing us as well.

Here in Australia, we are happy in one respect to be recipients of the intellectual and pedagogical tradition which comes out of the British and in terms of the understanding of Asia, has been spawned in large part by the School of Oriental and African Studies in London.

This institution has its impact in Australia in the teaching of Asia. I myself am the beneficiary of it having studied at the Australian National University which in the post war period was fashioned on the traditions of SOAS in London.

What does that mean in practice?

It means that in the establishment of the Australian National University, and the broader teaching of Asia in this country, we had a tradition whereby we simply did not teach the languages of modern Asia, we taught the languages of classical Asia, we also taught the civilisations of those languages, their histories, their politics, their economics, their culture, and their broader civilisation achievements.

This is a good intellectual tradition. In other words, it sees the importance of Asia not simply in terms of the utilitarianism or familiarity of the modern language, but everything that sits underneath that as well. So when you have a contemporary discourse in modern Chinese politics, what the term ‘democracy’ really means, then you automatically are bringing to the surface the understanding of those terms throughout the modern and classical Chinese traditions.

It is at that level of understanding that helps us in the collective West, and us here in Australia as well, to understand where China’s modern engagement has its own conceptual origins.

But my point is this. Here in Australia, the teaching of Asia is under considerable duress. For reasons I do not understand, when our engagement with Asia is on the increase, the actual teaching of Asia is at best, static, in this country. It needs to be radically changed.

My further point is that in that, the teaching of the merging body of laws of the major economies and societies and politics of Asia become doubly important. If we aggregated in this room the experts in Australia in each of the national bodies of law in Asia, that would be an interesting gathering to see how many would attend, we have to lift our collective game. And by that, I mean the nation, not you individually as representatives of your faculties.

Because I believe there is a unique opportunity for Australia, and it is this – we Australia, as I said, are the western country in Asia together with our friends in New Zealand. Therefore, it follows that when the collective west looks to countries that have had to fashion their futures in Asia, as we have done this past half century peacefully, with our friends next door in Indonesia, with the largest Muslim country in the world, together with our friends in China, about to become the world’s largest economy, the collective West can begin to look increasingly at countries like Australia in terms of how we fashion this long term engagement.

There is therefore a critical, comparative argument for Australia to harness the enormous capacity of national legal expertise that we have in directing that into a national resource, an international resource, the global go-to place for the understanding of the laws of Asia.

That I believe is part and parcel of the vision which I described earlier on both as Prime Minister and Foreign Minister of this country, making sure that Australia was the most China-literate country in the collective West and that Australia was the most Asia literate country in the collective West as well. That includes the study of laws.

My final point goes beyond globalisation, and the driving imperatives for you in the legal profession, that provide shall I say the legal arteries through which that globalisation can be accommodated in all of its dimensions; to go beyond the point of what I have just raised now about the particularities of China and the wider Asia to what is the Asian century, to a final point concerning the great and controversial challenges of international political law and international humanitarian law today as well.

Again I think there is a role for this country Australia, which it now demands. I have just spoken about Asia. We are the forefront of the economy of Asia, after Japan, after India, after China. Around the world, we are the twelfth largest economy. We are members of every significant institution within Asia and the Pacific. We are members of the G20, we are founding members of the United Nations, we are active in every single UN institution and have been since their commencement. We are also a founding member of other institutions such as the Commonwealth, which bring together countries from diverse regions including Africa, the Caribbean and elsewhere.

My overall point is this. We often lose sight of it in this country, but around the world we are seen as having international good offices that we can bring to bear in the great challenges we face in the international community every day.

For these reasons I have often argued that Australia is a middle power, with global interests and with regional interests, and if we give effect to those global interests and regional interests with what I describe as creative middle power diplomacy, and in executing that creative middle power diplomacy, one of its principles is good international citizenship. That in turn is about the construction of a robust, reliable, rules-based order, not just for Asia and the Pacific but more broadly across the world, an international rules-based order.

The international community has achieved much progress on this since the foundation of the United Nations in 1945. If you compare the order that we have today compared with the order that pre-existed pre-1939, any historian would lead you to conclude that great progress has been achieved.

The nature of contemporary politics is that we always point out that which we have failed in, rather than equally recognising where successes have been realised and they have been formidable. One of those areas is the body of international humanitarian law. This is where again Australia’s good offices and our international legal expertise have been brought to bear as well.

Of course, this is a long history; you’re familiar with it, those of you who are experts in your field. From the beginning to the emergence of discussions following the Second World War, the fourth Geneva protocol for the protection of civilians, through to the Refugees Convention of the 1950s, through to the great debates in more recent decades which lead to the formation of the International Criminal Court, leading in turn to further resolutions by the international community around this concept of responsibility to protect.

These are all controversial areas.

Look at the enormous tragedies we have seen in the last couple of decades, in crimes against humanity, in war crimes, and the rest, and crimes of ethnic cleansing, and crimes of genocide, and if you look at what’s unfolded in Somalia, if you look at what’s unfolded in Rwanda, if we look at what’s unfolded in this decade just passed in Darfur, and how the international community was by and large silent as atrocities unfolded in Bosnia and then later in Kosovo. What the international community has done as product of these singular failures of the international legal system, is evolve these new and emerging doctrines of international and humanitarian intervention.

Of course we saw this application most recently in the great debates concerning Libya. People now say that the Libyan intervention may have gone too far. I would ask those who doubt that, had the international community not acted when it did in bringing about a UN Security Council Resolution which implemented a no fly zone over Libya to protect the people of Libya, at a time when Gaddafi’s troops were moving down to Benghazi, a city of almost a million people, which was the home of the anti-Gaddafi revolution, then what we might be debating at this conference now would be the failure of the international community to prevent the butchery in Benghazi. That’s what we would be discussing. That’s what we would be debating.

Instead, the international community resolved to act. I’m proud of the fact that as Foreign Minister, I led international foreign ministerial calls for that action to occur. Prior to it being fashionable to do so. It was important as it represented a single opportunity to learn from the list of failures I referred to before. And so too, we confront the next challenge which is Syria.

I do not believe it is right, or the responsibility to protect, as underpinned by the agreement with the international heads of government in 2005, to push to one side permanently, the possibility of using the coercive powers available to the United Nations to act also in Syria.

Of course, under the responsibility to protect under the resolution of 2005, there are multiple mechanisms available, not all of them coercive, there are a number of which that are non-coercive, in what is referred to as the three pillars of international humanitarian intervention, both military, diplomatic and other forms.

But my overall point is this. This evolving body of international humanitarian law is important in us as Australians prosecuting a policy of global citizenship, of us prosecuting a policy on behalf of Australia which seeks to build a global and regional rules based order including in the humanitarian domain.

And we in Australia, and you in the international public legal profession of this country, also have an opportunity to contribute to a greater Australian voice in so doing.

I believe it is part and parcel of who we are as Australians as well, giving effect globally to the values which we hold dear deeply here domestically.

Controversy is associated with this, I am well familiar with. There has been a body, in fact an avalanche of academic literature written on it. But against the basic moral judgement, is the world a better place for those interventions having occurred, rather than hiding behind a doctrine of state sovereignty, saying that Libya should have been left to its own devices, I think the conclusion on behalf of us all, would I believe be clear.

To conclude therefore, these are important areas for your profession. Globalisation inevitably moves you in this direction. Asia and the Pacific, and China in particular, represent massive opportunity and massive challenges to your profession which is why it is so good that we have so many representatives from the Chinese teaching and legal profession here with us in Australia for this particular conference.

More broadly, I believe all women and men of goodwill, and nations of goodwill, must continue to throw their full intellectual and political efforts at the emerging task of ensuring the body and the practice of international humanitarian law will indeed prevent further atrocities on a mass scale in the future.


  1. I'm presuming Kevin you do know of the IOM and its section covering the criminalization of smuggling migrants. These people smugglers are part of organized crime networks.They are noted for their capacity to operate with rapid flexibility to exploit any opportunity. Why aren't we hearing anything from you on this when the party you are still with is utterly inept in dealing with this aspect. I know that the current ALP power brokers and their mignons are both too ignorant and arrogant to be aware of anything much less deal with such. Yet even Abbot and his lot aren't contributing anything of worth to this issue. It's not the pretend economic migrants that are as large a concern. It's the easy relationship that Australia is forming with organised crime that is disconcerting.Do we even dare admit there may be groups of these hopeful migrants in smaller batches shot and dumped at sea not too many miles from their departure? Some of these calous operators may happily settle for one modest windfall and do this.Would you know how to revise responses from some of your earlier positions that started in adressing one lot of issues fairly enough, but new factors would seem to need new intelligent firm actions.

    And do you read any of these comments or ever once in a while reply aside from a meaningless stock response by your staff?

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