 Good evening. My name is Christian Barry and I'm the Director of the Research School of the Social Sciences and I'm delighted to welcome you here for the first inaugural Mintzan Law and Philosophy lecture. I'd like to begin by acknowledging the Ngunnawal Nambri peoples, the traditional owners of the lands on which we meet, and to pay my respects to their community leaders past, present, and emerging. This lecture is made possible by a bequest of Mintzan, Professor Mintzan, who I'm also delighted can join us for the lecture today. He is a graduate of the ANU, finishing his Masters in Law back in the 80s and has the career teaching in universities in the Pacific, in Malaysia, and also in Australia on topics ranging from human rights law, international law, and many other topics. This lecture series aims to feature outstanding scholars who are doing work at the intersection of law and philosophy and whose work is very much focused on engaging with issues of pressing public concern. I'm going to turn over the proceedings to our esteemed Chancellor, the Honorable Julie Bishop, in a moment, but I should just note that I can think of no better speaker to introduce this lecture series than Hilary Charlesworth. Professor Charlesworth's work is the paradigm of work that is both theoretically interesting and rich and also publicly engaged. And on a more personal note, I know that I was one of many young scholars who came to the ANU who benefited a great deal from her generosity and encouragement. So I'll turn things over to Chancellor Bishop, who I know just recently gave a talk at the Press Club on the topic of the tensions between the struggle or aspirations for a rule-based, impartial world order and the realities of great power politics. No doubt those also form the background of many of the deliberations of the Permanent Court of International Justice, which is the institution that is a topic of this evening's talk. Chancellor Bishop. Thank you, Christian, and good evening to the audience here at the ANU campus. And I welcome you all. And I too acknowledge and celebrate that we meet this evening on the land of the Nambri Nunnamal people and pay respects to elders, past and present. And I should say that I've just come from Llewellyn Hall, where ANU is hosting a discussion, a dialogue on the voice. And I'm pleased to say that it's very well attended. So I'm looking forward to the outcomes of that evening. It does mean, though, that we have a few events at ANU this evening. But I'm absolutely delighted on behalf of the ANU academics and staff here this evening and all the friends of ANU. Delighted to welcome Professor Mient Zahn and Professor Hillary Charlesworth this evening, for we are about to listen to one of Australia's most distinguished and eminent lawyers. And Professor Zahn, thank you for your support and making this lecture series possible through your generous philanthropy. Professor Charlesworth is one of our most distinguished and internationally recognized lawyers, particularly her focus on human rights law. And she is a graduate of Melbourne University Harvard Law School. Her list of awards and appointments and achievements is as many as it is eminent. And I'm so very delighted that she is a distinguished professor at the Australian National University. She's a director of our Center of International Justice and Governance. And she holds many other roles. But I think we're all so absolutely delighted when in November of 2021, her outstanding record of achievement was recognized by her appointment as a judge of the International Court of Justice. It is part of the international rules-based order, that network, that framework, if you like, of conventions and protocols and institutions that has evolved since the end of the Second World War. And the International Court of Justice has been an integral part of that rules-based order, which is increasingly under stress, is increasingly being used by some nations in a struggle for power, for relevance. So I cannot think of anyone more suitable to discuss the International Court of Justice, its history, its legacy, its significance, its future, its contemporary impact. And distinguished professor, Hilary Charlesworth, please make her welcome. I joined the Chancellor, first of all, of course, in paying my respects to the traditional owners of the land on which we're meeting, the Nambri, none of all peoples, and acknowledged that this land was never ceded. So Chancellor, many thanks for that kind introduction. And dear friends and colleagues, it's a great pleasure to be here. I'd first of all like to thank an absent person, and that's Professor Nick Southwood, who extended the very kind invitation to me to deliver this lecture. And Nick has come down with COVID and isn't able to be here, but he's here in spirit, and he's very, very ably represented by Christian Barry, who I'm also delighted to see here. Of course, it's a great honour for me to deliver this inaugural Minsan lecture. And Minsan and I actually go back a very long way. I first met him when we were both junior academics specialising in international law at different institutions in Australia. But the thing that has stayed with me over the past 30 years or so was his huge enthusiasm for the discipline, and particularly his deep appreciation of the history of international law. And I remember a very animated discussion with him about the contributions of Utant, the Secretary General, of course, who was from the Burmese Secretary General. So I'm really delighted that he's able to be present this evening. So what I'd like to do in this talk is to, first of all, because I know there are some relatives of mine in the audience who won't be familiar with this. I know there are also experts. So forgive me if I'm speaking to my friends and relatives more than the experts. But I plan to, first of all, introduce the jurisdiction of the World Court and then examine its contemporary significance by exploring various strands of criticism concerning the court's structure and its approach to international law. And I'll conclude by arguing that regulatory theory offers valuable insights into the court's strength, limits, and potential. Well, to start with just some background to the World Court, I was struck by the fact that this year marks the 100th anniversary of the very first case that was argued before the Permanent Court of International Justice, which is the predecessor of the International Court of Justice, where I now work. So the Permanent Court was the first permanent international tribunal that had general jurisdiction. It really emerged out of the late 19th century optimism about international adjudication as a constraint on power politics. And the Hague Peace Conferences of 1899 and 1907, which were largely initiated, interestingly, by Tsar Nicholas II of Russia, those two conferences really inspired the creation of an institutional structure for international arbitration, which was the Permanent Court of International Arbitration, an arbitral tribunal that still exists today. After that, the PCA was established, then there came proposals to create an international judicial as opposed to arbitral tribunal. But this came to fruition only after the end of the First World War. And indeed, the Covenant of the League of Nations in 1919 envisaged in its provisions the establishment of the Permanent Court of International Justice. The League then duly commissioned an advisory commission of jurists to design the court statute, and that was adopted in 1920, a year after the founding of the League itself. The Permanent Court was housed in the Peace Palace in the Hague, alongside the Permanent Court of Arbitration. The Scots American philanthropist, Andrew Carnegie, had funded the building. And the building I find fascinating as I walk into it every day, it was designed to embody ideals of international justice. How well it does that is another question for another lecture. But the court was finally inaugurated in 1922. But as I've said, the first case was filed in January 1923, the first contentious case. And this was known as the SS Wimbledon case after a boat. That was an issue. So this was an application by four states, Great Britain, France, Italy and Japan. And they were seeking orders against Germany to allow the SS Wimbledon free access to the Kiel Canal in Germany. And they also sought compensation for the economic losses that had been caused by the German refusal to grant access. So the four applicants were successful in that case. And I'm struck by the fact that even though that's 100 years old, one still finds that case cited in judgments of the court today. It has continuing relevance. So joint applications and interventions to protect collective interests under multilateral treaties have, it seems, been rediscovered lately. And the SS Wimbledon is offers, I think, really useful guidance as to the manner in which such applications can be dealt with. But more broadly, the SS Wimbledon case stands for two really important basic propositions of the international order. First of all, that international commitments are not in tension with but are rather a manifestation of state sovereignty. And also that that case made clear another cardinal principle that domestic law does not prevail over international law, international law rules. So in its rather short life between 1923 and 1940, the Permanent Court delivered judgments in 29 cases between states. And it also rendered 27 advisory opinions. Its last rather tragic public sitting was in December 1939, just after the outbreak of the Second World War. But the PCIJ wasn't formally dissolved until 1946. And it was promptly replaced by the International Court of Justice under the terms of the Charter of the United Nations. What's interesting, even though this is a new creature, the new court inherited a statute almost in large part identical to that of its predecessor. And it's also striking that it adopted remarkably similar rules of procedure. One legal difference was that the new court, the ICJ, was elevated to the status of a principal organ of the United Nations. So it's at the same level as the Security Council and the General Assembly. So the International Court is composed of 15 judges who under the statute must be from different nationalities. The judges are elected by the UN General Assembly and the Security Council voting simultaneously. And the judges are elected for nine-year terms which are renewable. So I do have a colleague who's onto his third term and really shows no sign of stopping at all. So I think the record is three full terms, 27 years on the court. That won't be my fate, I assure you. The court's statute mandates, and I'm quoting from it here, representation of the main forms of civilisation and of the principal legal systems of the world. So it says this is the guidance we have to what sort of judges there should be. And how that's actually translated in practice is there is an informal regional allocation of the 15 seats, a rough regional allocation, so, for example, three seats to Africa and so on. But an interesting sort of tradition overlays that. There's been a tradition that the five permanent members of the Security Council always have a national on the court. The single exception to that has been the case of United Kingdom when in 2017 the United Kingdom's candidate was not re-elected. So at the moment it's the other four members of the permanent members of the Security Council that have judges on the court. Another interesting feature of our court is that if there is no judge of the nationality of a state party to a dispute who's sitting on the bench, that state can appoint what's called a judge ad hoc for that case. And I myself have been an ad hoc judge before I was appointed to before I was elected to the court in a couple of cases. So you're a judge, really, I used to call myself a tourist judge. You were there just for one case and you came in and you left. So it is possible that in some cases all the judges sit on every case. I should have added that. And so in some cases you might have 16 or even 17 judges if there are ad hoc judges. In its contentious jurisdiction the court deals only with disputes between states. So unlike the International Criminal Court, which of course is also based in the Hague, the ICJ can't hear cases against individuals. Also the International Court doesn't have discretion to select the cases that it hears, unlike many national and international courts. Going back to the drafting of the UN Charter of the San Francisco Conference in 1945 in which Australia played such a critical role, there was some very interesting discussion about whether the court should have a compulsory jurisdiction. And interestingly both Australia and New Zealand were really strong proponents of that position. But ultimately the view of the United States, the Soviet Union and the United Kingdom, that jurisdiction should be voluntary, that view prevailed and that view governs today. So this means that the courts can't be compelled to have disputes heard by the court unless they can be taken to have consented to the court's power to do so. So there are essentially three ways that that consent can be shown. So the first way is pretty obviously where there's explicit consent, where states enter into a special agreement to submit a dispute to the court. So a current example that's currently on our docket is a case between the Caribbean coast neighbours of Guatemala and Belize. Those two countries have agreed through a special agreement to submit a territorial dispute to the court. So the court knows when it gets the case submitted by special agreement that there are very good chances that it will be followed. But a second route by which consent, the consent of states is taken to have been manifested, is when both states before the court are parties to a treaty that grants the court jurisdiction to decide disputes between treaty parties. And there are clauses like this, sometimes called compromissory clauses. For example, there's a clause like that in the genocide convention, in the convention on the elimination of racial discrimination and the convention against torture. And actually before the court at the moment, there are, we have a series of cases which are based on clauses in such treaties, including two brought against Russia by Ukraine. Ukraine's bought a case based on against Russia based on the alleged violations of the convention on racial discrimination and also on yet another convention that has a compromissory clause, the convention on the suppression of the financing of terrorism. And one of our most recent cases filed just a month ago is a case brought by Canada and the Netherlands against Syria on the basis of a compromissory clause in the convention against torture. So that's the second way. And a third way by which states manifest consent is by making a standing declaration accepting the compulsory jurisdiction of the court. So I counted today and there are 74 of the 193 members of the United Nations that have made such declarations. So that's close to 40%. Australia was among very early countries to make such a declaration. We made such a declaration in 1946. We have changed its terms on several occasions. But it's striking in terms of the permanent members of the Security Council that only one of them, and perhaps ironically the one that no longer has a judge on the court, that's the United Kingdom, has a declaration, such a declaration in force. The most recent declaration we've received at the court comes from Iran, an acceptance made just in June 2023. Many declarations, if you look at them on the court's website, you'll see that they're not open checks to the court. You can hear any dispute that's submitted. Many of them are hedged by relatively broad reservations which constrain the court's jurisdiction. As it's predecessor, the Permanent Court, the International Court, also has an advisory jurisdiction whereby certain organs of United Nations can request advice in the critical languages on any legal question. So in its, those are the two, so contentious and an advisory jurisdiction. So over its 77 years of its life, the International Court has had 160 cases submitted to it, contentious cases, and it's received 29 requests for advisory opinions, and it's actually delivered 27 for technical reasons, it turned down two of them. As many of you will know, there have been some lean periods in the court's life. The longest perhaps was the period after the delivery of the judgment in the Southwest Africa case in 1966. In that case, as every international lawyer knows, the court was evenly divided on the question whether Ethiopia and Liberia had standing before the court to obtain a ruling on South Africa's performance of its duties as a mandatory power over Southwest Africa. Of course, that's modern day Namibia. The casting vote of the President, who was the Australian judge, Sir Percy Spender, decided the case against the two African states. Many of the new members in the 1960s of United Nations from the developing world were dismayed by the decision, and I think it's fair to say lost faith in the court as a useful forum for dispute resolution. And that distrust lingered for many years. But today I can report that the court is at one of its busiest points ever. It has a crowded docket with 18 contentious cases from every region of the globe. And the pace seems to be quickening because since I wrote the abstract for this lecture, three cases have been added. There was a time in June when we got a case a week. And I noticed the President of our court looking paler and paler as the workload, particularly for our registry, mounted. But these cases, these 18 cases range from land and maritime boundary disputes to allegations of racial discrimination, torture and genocide. Interestingly too, the court has recently received two requests for advisory opinions from the United Nations General Assembly. One is on the legal consequences of Israel's policies and practices in the Occupy Palestinian Territory. And the other on international legal obligations in relation to climate change. So it may seem that the number of cases suggests that the court has a groundswell of respect and authority in the international community. Perhaps paradoxically, deep international political divisions that have hampered diplomacy and the Security Council appear in some ways to have made the court more appealing as a forum for dispute resolution. So that's the good news story, but it will not surprise you that the court has also attracted a great deal of criticism over the years. And what I'd like to do now is to sketch some of the themes in those critiques. What I plan to do is to sketch three strands of criticism in the court in very broad brush general terms. And I say now to the scholars among you who perhaps are adherents to one school or another, I admit straight away I've simplified the arguments for the purposes of being able to reject them in the end. I've simplified the arguments so I can give this broad brush appreciation. So what really what I want to do the purpose of sketching these is to illustrate the sustained scrutiny applied to the court from a range of angles. So the first critique I'll deal with is what I'm going to call the realist critique. So the consent based nature of the court's jurisdiction that I've described has often sparked doubts about its legitimacy. And as there are very few enforcement mechanisms once the court delivers a decision, the court is often portrayed as a toothless tiger. So international relations scholars and I'm going as far back as Hans Morgental often have dismissed international law and the court as idealistic waffle. I think this is understandable given the assumptions of realist theory which posit the centrality of one type of actor states and a single type of motivation, the pursuit of self-interest. So realism is based on assessments of national interest from the vantage point of those with political and military power and it tends to discard the more diffuse evidence of what the weak are up to, the weak and the marginalised. Realists assume the coerced rule compliance is the defining feature of a fully fledged judicial institution. So perhaps it's understandable that international relations realists view international courts as embedded in an international system where there's an unequal distribution of power. So following this powerful states can simply ignore international judicial rulings that they deem unfavourable to their account of their national interest. For these reasons, realist scholars have regularly compared the court unfavourably to national courts which they've seen as paradigms. So we can see that international relations theorists have taken those views and we see this also reflected in writing by international legal scholars. So the American author Eric Posner, for example, writing in 2006 concluded that the ICJ could neither please the major powers, which always resisted, he said, constraints on their actions, nor he argued could it maintain the loyalty of smaller powers who regarded the court in his word as a puppet of the major powers. That some of these international law scholars have studied the voting behaviour of international judges focusing on their degree of convergence with the interests of the state, of their state of nationality. They've also explained the reluctance of some states to appear before the court as based on a lack of trust in an international judiciary to apply the law impartially, assuming that judges will always vote in favour of positions to promote the interests of their home states or that reflect their cultural prejudices. In the legal academy more generally I think it's fair to say that often international lawyers are considered purveyors of a rather suspect form of legal reasoning and I recall debates in the past with colleagues saying well really international law is far too close to politics. We domestic lawyers deal with the real law and you are in the realm of politics. So the lack of a centralised system for the enforcement of international law is taken as proof of its questionable legality. International law is readily found wanting when measured against John Austen's idea of law, his classic idea of law as and these are his words the command of a sovereign to habitually obedience subjects. International law just doesn't make it on that account. So that for all its generality is what I'll call the realist critique. A second style of critique that has many manifestations I'll call the technical critiques. So there are many styles of critique of the court's judgment that focus on the quality of the court's jurisprudence and the growth of social media has allowed such critiques to flourish and barely day goes by when one blog or another doesn't unpack a recent ruling of the court to show how unsatisfactory it is. But this extensive literature has many subcategories. So one subcategory of this technical critique points to the time consuming and apparently outdated working practices of the court. And one example I'd offer is a chapter written by the great Italian jurist Antonio Cassezzi and his critique of the court along these lines is rather disarmingly titled The International Court of Justice. It is high time to restyle the respected old lady. I'm not sure about the imagery there at all but in it he calls for the modernization of court procedures and working practices. He says let's get rid of the position of judges ad hoc. Let's increase the ability of third states to intervene in contentious proceedings. Let's have more amici curiae in contentious cases and let's create a fact-finding body for the court. So that's one style of critique. Another subcategory concentrates on the quality of judgments and allow me to use the example of a recent book by an American scholar Mark Weisberg and I've chosen it partly because of his rather arresting title which is called Failings of the International Court of Justice. I have to admit reading that is quite a bleak task for any judge. He starts out, Mark Weisberg, he says he's very skeptical of the difference often accorded to jurisprudence of the court and he goes through and details the errors he detects in the court's jurisprudence of every of every type. Apart from what he regards as dodgy reasoning and slap-dash fact-finding Weisberg is alarmed by what he sees as the court's policy positions. For example he's very critical of what he sees as the court's whining back the right to self-defence. He claims that the court regularly relies on unauthorized sources of law and that it in fact often avoids resolving disputes that have been brought before it. So you won't be surprised to hear that Weisberg overall gives the court a very low score for its performance. But there are other critiques. More recently the German scholar Stefan Thalmon has really criticized the court for its approach to the next question of the determination of customary international law and I was struck by his opening he starts it with an opening rather withering diagnosis that methodology is probably not the court's strongest point. So that's a guide to some of the the technical critiques of the court. Let me turn then to the third school well this is really a set of different critiques. I'm going to just lump under the umbrella of critical approaches. So just as critical theorists have taken on national legal systems since the 1970s they've also of course influenced the study of international law. They've argued that the politics of international law shape international adjudication and yet they also point out how often international courts and tribunals are at pains to disguise this. On this analysis the language of objectivity found in international adjudication is really just a cloak for fundamental policy choices and it's striking that many critical scholars appear to avoid even looking at or studying the international court of justice. I assume that's because it just doesn't seem an interesting enough or challenging site for critical investigation. To take one of the best known critical figures of the modern days the Finnish scholar Marty Koskanyemi who spoke from apology to utopia the structure of international legal reasoning really shook up the field of international law in the late 1980s. So Koskanyemi describes international law as combining both human desires and human practices in the sense that it expresses ambitious aspirations for a better world while also being a set of professional techniques to analyze disputes. And Koskanyemi points out that the tension between the search for both normativity and concreteness gives a dichotomous rather ambivalent character to international law. So he says its principles typically contain both a utopian idealistic aspiration and yet also an apologetic or realist account of power. So an example of this pairing that Koskanyemi is talking about in the international legal doctrine is the principle of self-determination of peoples which is often paired with the affirmation of the principle of territorial integrity on the other. So yes there is a right to self-determination of peoples but it should not impair territorial integrity. So the former the right to self-determination offers a tool to criticize repression while the latter an insistence on territorial integrity might be taken as a way of limiting its impact. So Koskanyemi in some of his work has tracks apologies and utopias in decisions of the court. But interestingly he reserves praise for one a very controversial advisory opinion of the court the advisory opinion on the legality of nuclear weapons delivered in 1996 where I then foreign minister Gareth Evans actually argued before the court in that case. While many jurists at the time and since have criticized the court's failure in that decision in that advisory opinion to declare the threat or use of nuclear weapons to be illegal. Koskanyemi for his part louts the opinion. He finds it an honest recognition so refusing to say that international law outlaws the use of nuclear weapons. He just says well this is a recognition that international law isn't a complete system these are his words capable of giving a response to every conceivable normative problem. And he says these are his words again for the voice of justice to be heard. Law must sometimes remain silent. By contrast in reflections on the exactly the same advisory opinion Koskanyemi's colleague and fellow critical theorist David Kennedy has said of the nuclear test advisory nuclear weapons advisory opinion that the court and these are his words operates in a fantasy world of law and that its opinion in the case is both crafty and craven at the same time. Also in a critical vein the Azerbaijani jurist Fouad Zarabyev has complained about the status accorded to judicial pronouncements in international legal scholarship. And he's argued in I think a very interesting article in the European Journal of International Law that the focus on the court he says it shrinks and even distorts the nature of international disputes to always be doing this in the shadow of the court. And he also in his article points to the sometimes what he sees as sometimes circular or even flimsy reasoning that he detects in court's judgments. Feminist writings illustrate another style of critical analysis of the court. So one interest of feminist approaches to international law has addressed the lack of representation of women on the court. It's striking in the 100 years of the PCIJ and now the ICJ called the world court together there've been a total of five women elected to the court over a century compared to 141 men elected in the same time. Feminist scholars have also attended to the gendered nature of the court's decisions arguing the court tends to take a blinkered approach to international dispute resolution. And in the context of national legal systems Margaret Davies of Flinders a wonderful feminist theorist she's pointed to the way that law is typically presented as a type of superstructure distinct from morality politics and the real lives of people. And she argues as part of a feminist project for a recovery of human life in law. In other words she says for the primacy of the subject in the construction of law. So that method has been taken up in international law too most strikingly perhaps in a series of a wonderful series of rewritings of some of the classic decisions of the court by feminist scholars and these rewritings say of the Lotus case and the Lockaby case and the reservations the genocide convention advisory opinion illustrate the possibilities of feminist theories shaping international law. The final sort of on my very quick tour around critical approaches when I want to mention a third world approaches to international law sometimes known by their acronym TWAIL. So TWAIL scholarship fits I think clearly under this umbrella and it's concerned particularly with a colonial context of international law and it challenges the claim of the universal applicability of international law. The Sri Lankan and Australian scholar Professor Tony Angi has noted and these are his words that imperialism far from being peripheral to the development of the discipline was central to its very identity and operations. So TWAIL scholars have studied how colonial relations endure and prosper in an era of apparent decolonization. At a general level and I'm using Tony Angi's words here TWAIL encompasses a project of solidarity a heuristic to understand the plight of disadvantaged communities and the structures that bring about exclusion and inequality and politics of anti-subordination. TWAIL scholars have paid a quite a bit of attention to the work of the international court. Some have studied the legacy of judges from the developing world such as Judge Wiramantri from Sri Lanka. Others appointed to the value of aspects of the court's jurisprudence in bolstering a TWAIL approach to the international legal issues. But TWAIL scholars certainly have identified biases in favour of their set of powerful states in the court's decisions and perhaps the most studied one, the most studied recent one, include the cases brought by the Republic of the Marshall Islands against nuclear states in 2014. This was a case that sought to enforce provisions of the Nonproliferation Treaty requiring nuclear states to engage in good faith negotiations towards nuclear disarmament. In that case, an intriguing decision, the court held that it didn't have jurisdiction to hear the cases because it argued there was no dispute, formal dispute between the parties. It decided that the respondent nuclear states were not made properly aware of the fact that a dispute existed between them and the Marshall Islands. There was only a very narrow majority of the decision, the court was evenly divided and, as in the South West Africa cases, it was decided, the critical vote was decided on the casting vote of the president. In this case, the president was Judge Ronnie Abraham of France. So TWAIL scholars have reflected that the Marshall Islands litigation and these are Angi's words, reinforce the sense that the international legal system is operated by the powerful for the powerful. More generally, TWAIL scholars note the court's limited attention to global structural injustices. It's been reluctant to tackle structural questions such as redistribution of resources and the argument goes it focuses instead on individualised claims. But what I find striking is that despite this pessimism that I've sketched about international law's capacity, many TWAIL scholars nevertheless retain a faith that the court can establish some limits on power politics. So those are the the critical strands that I wanted to put before you and you might think it's extremely predictable that as a member of the court I think that these various critical strands while each containing some insights to me they don't offer a broad enough lens to understand the work of the court. One of the ANU's many gifts to me was the chance to work with the brilliant scholars in the regulatory institutions network or REGNET here at the ANU. John Braithwaite founded REGNET in 2000 to study how events are shaped or regulated and using this knowledge how the governance of major social, economic, environmental and health issues could be improved. Today as many of you know REGNET remains a flourishing academic hub home to new generations of exciting scholars and if any of you don't know its work I encourage you to explore its truly remarkable research through its website and also it's founder John Braithwaite maintains a separate his own website since his retirement which is also really worth a look for inspiration. But what I'd like to do and I apologize to my REGNET colleagues that I won't do justice they're rich ideas either but I want to now draw on some of its ideas to look at the work of the international court of justice. So the concept of regulation as developed in REGNET has been described as and this is a quote from Julia Black writing some time ago and a very distinguished British regulatory scholar. Regulation is understood as the intentional activity of attempting to control order or influence the behavior of others and an even more perhaps expansive account of regulation offered by John Braithwaite and Christine Parker is simply influencing the flow of events. So regulation on this account includes all forms of pressure to change the course of events even the unintentional effects of agency. So regulation then goes beyond legal rules and mechanisms and also comprises political, social, economic and psychological pressures. So if we understand regulation that way you can see that it's much broader than the way that it's often used in the international and legal, national legal literature to mean simply governmental imposition of public obligations on private parties such as the direct duties placed on individuals created by international criminal law. So while international relations realists discount the power of international legal institutions regulatory theory draws attention to the multiplicity and complexity of both actors and motives in the international sphere deploying the notion of regulatory webs of influences. So regulatory theory observes that at the global level each separate regulatory control tends to be weak but that strength comes through the weaving of these fragile these frail strands together to form a web and then the animation of that web by networks. So savvy actors in the international order discern what strands they should tighten at what time to make the web effective. The idea of governance or regulation through networks explains why it's sometimes possible for those in a weak position to prevail over the strong. Network governance is organised from nodes of activity or interest. Of course not all the nodes in a network will have identical concerns or strategies and there can even be deep tensions between them. The strength or success of a network indeed depends on the management of tensions dissonance between the nodes. A regulatory theorist then avoids compliance based accounts of the effective law which are so popular with lawyers and international relations theorists and might ask along with John Braithwaite and Peter Drache and their wonderful book global business regulation but they wrote the question might be well can international law be using their language a weapon of the weak rather than simply a tool for powerful states to reinforce their dominance? So one example if one looks at the court's jurisprudence to answer the Braithwaite and Drache question is perhaps arguably Nicaragua's recourse to the International Court of Justice in 1984 when it argued that the United States had violated international law through mining Nicaragua's harbours and supporting Nicaraguan paramilitary groups notably the Contras. So this is a very significant case the judgment was delivered in 86 because it was the first case where the ICJ ruled on a major powers violations of international law against a developing state. The United States first unsuccessfully challenged the court's jurisdiction and then in protest at the court's decision that it did have jurisdiction withdrew from the proceedings. The court proceeded at the merit's phase to uphold Nicaragua's claims deciding that the United States had a duty immediately to cease its activities. Given the non-participation of the United States this case might appear as a rather peric legal victory but as our colleague at ADFA Douglas Guilfoyle has observed in relation to law of the sea disputes between small and large powers such litigation may have considerable long-term value. So the Nicaragua case succeeded certainly in undermining the legitimacy of the United States actions in Nicaragua. It assisted in mobilizing international support for Nicaragua and it's certainly we can see now what the benefit of hindsight created pressure for change in US foreign policy. But I think another potential example of the court's capacity to be again using the breakaway to Drahosh term a weapon of the week are the mechanisms of advisory opinions. The most recent advisory opinion delivered by the court was in the Chegos archipelago case delivered in 2018. At issue was the status of the Chegos archipelago which is right at the center of the Indian ocean. The Chegosians the people of the Chegos Islands had all been forcibly removed from the archipelago by the early 1970s and they were prevented from returning because a joint UK US military base was built on the main island of Diego Garcia. Mauritius led a campaign of the United Nations to change the status of the Chegos Islands from that of a territory of the United Kingdom to the Mauritian territory and one aspect of this extensive campaign was a request from advisory opinion which it eventually shepherded through the General Assembly and obtained the request to go to the court. It's striking and some of my colleagues my current colleagues at the court will often recall the proceedings in that case because they were unusually many respects unusually charged and emotional and there was quite a lot of evidence led about particularizing the sufferings of the Chegosians themselves and in a first for the court one Chegosian woman Marie Lisby Elyse gave by video and you can still see it online very moving evidence about the her pain from her removal from her island. The story of that case is for another lecture but eventually the court in its advisory opinion found that the United Kingdom's continued occupation of the Acapelago was inconsistent with the right to self-determination of international law. Well although the United Kingdom had resisted the advisory opinion request very strongly it's interesting that very slowly in the years following the opinion up to today there has been other forms of political pressure have come to bear on the United Kingdom and there are some admittedly there's simply press reports occasional press report that acknowledged the possibility that there may be some movement in the United Kingdom's position about whether it will negotiate with Mauritius to return the islands. So without wanting to overstate the impact of that advisory opinion I think the Chegos case might be seen as a good example of savvy actors weaving relatively weak strands together to form a regulatory web in this case that can be animated by networks. We could also understand the more recent initiative to seek an advisory opinion from the court on the legal consequences of climate change in a similar light. That idea as many of you will know began in a law school classroom in Port Vila Vanuatu one of the state's most susceptible to the effects of the climate change crisis. In 2019 a group of final year students at the University of the South Pacific pitched the idea of resorting to the ICJ to the then foreign minister of Vanuatu who in turn garnered support among the members of the Pacific Island Forum and eventually a total of 132 states. And four years later just on the 29th of March this year the General Assembly adopted the request for an advisory opinion on the legal consequences of climate change by consensus. And that's really very important because that's the first request for an advisory opinion from the court that has been adopted without a formal vote in the General Assembly. Now I don't want to overstate the potential of advisory opinions as a weapon of the week because of course the decision to seek an advisory opinion in the first place lies in the hands of international institutions whose members are states. And of course in the case of the legal consequences of climate change the nature of the court's response to that request is unknown. There's still the court is still waiting for written statements of interested states and international organizations to be made so that still is a relatively early state of the proceedings. But regulatory theory reminds us to take a broad view of how to influence behavior and not to assume that this is solely the province of law. So on this analysis I want to suggest the international court in its jurisprudence can be seen as one thread in a tapestry of effective regulation and of influencing the course of events. But of course this thread, this fragile thread can break if too much weight is placed on it alone and its strength depends on it being woven with other types of regulation. These could include institutional and political pressures, publicity and activism as well as art, architecture and literature. So then to conclude, few international institutions have survived as long as the world court and I think perhaps in my tiny part of the universe of the centenary of its first case is I think worth celebrating. The international lawyer and international relations theorist Richard Faulk once observed and I'm quoting something he wrote quite a long time ago but he said I was really struck by this phrase. He said it's understandable that anyone who's endured nine quiet years in the damp gray confines of the Hague would emerge from the experience with a grim determination to promote the court despite current adverse conditions. He was commenting on a judge Philip Jessup the American judge who once he was released from being a judge had written a very upbeat account of the court. So I hope that tonight I've not exhibited too grim a determination to promote the court. After just two years in the Hague I'm keenly aware of the limits of the court's jurisprudence and its capacity to contribute to international peace and security. International law infuses global society and shapes the international arena by regulating the location and the bounds of authority but while operating in an intensely political environment the court must hew to legal forms identifying legal principles to resolve disputes and to enlighten the work of international institutions. My point tonight is that we should be clear eyed about the court's potential and limits. It's not a panacea for all international disputes and its jurisdiction is limited as I've said based on state consent but at the same time the court is much much more than the hapless creature of powerful states as some of its critics insist. To me it deserves fine-grained analysis to understand its daily life and rituals and the possibility it offers to promote international justice. The wonderful intellectual community here at the ANU is well positioned to contribute to this work.