There was a time, not so long ago, when the words "Australia" and "good international citizen" appeared frequently and naturally in the same sentence. Alas, it is not the case these days. It would be fair to say that Australia's record as a good international citizen over the last 20 years has been, shall we say, mixed. But perhaps Australia's two-year tenure on the Security Council will be an opportunity for it to regain some of the reputation it has lost in recent years.
We each probably have our own idea of what good international citizenship entails, but for an international lawyer two especially important ingredients would be enthusiastic compliance with international law (of course) and engagement with multilateralism. Australia has done reasonably well on the latter; it is its compliance with international law that has been seriously questioned, particularly the compatibility of its treatment of asylum seekers with its obligations under the Refugees Convention and human rights treaties generally.
The government's policy on asylum seekers is unlikely to alter course any time soon, and with the recent extension of the draconian offshore processingrégime to all maritime arrivals, it is difficult to see what further action can be taken against asylum seekers without formally denouncing the Refugees Convention.
So perhaps Australia can redeem, or at least partially offset, its dismal reputation in this area by concentrating its efforts elsewhere – particularly multilateralism. Here an obvious candidate is implementation of the "responsibility to protect". This concept, often shortened to "R2P", is a natural project for Australia to adopt, as it was former Labor Foreign Minister Gareth Evans who was largely responsible for its creation. Evans co-chaired the International Commission on Intervention and State Sovereignty, a group of experts convened by the Canadian government to find a solution to the apparently irreconcilable conflict between the cries of "never again" following the genocides of Rwanda and Srebrenica, and the developing world's understandable refusal to accept the legality of using force in the name of humanitarian intervention. When could or should the international community intervene?
The Commission's report, in 2001, recommended shifting the emphasis away from intervention and focussing instead on the responsibility of each state to protect its population from egregious human rights abuses. But the Commission made it clear that if the state fails in that duty, the international community must then exercise its responsibility to protect that population – by force if necessary.
As a broad principle, R2P has been endorsed by the UN General Assembly, but in a much abbreviated and diluted form. In essence, if a state is grossly abusing its citizens, or cannot or will not protect them from atrocities, the UN view is that the international community can only intervene by force if the Security Council expressly authorises it. Since this has always been the position in international law, the adoption of R2P has not exactly been revolutionary. But where it might make a difference is in providing some guidance to the Security Council as to when it should authorise the use of force for humanitarian purposes.
Already references to the responsibility to protect are starting to appear in in some Security Council resolutions, notably in last year's ground-breaking resolution 1973, authorising the use of force in Libya to protect civilians against the excesses of the Libyan military during the civil war.
However, as a result of that intervention, the Security Council is even less likely to authorise force than before. This was made clear by Russia in October 2011, when it and China first vetoed action on Syria. In the Libyan case, military intervention was possible only because Russia and China took the highly unusual step of abstaining from the vote. Force was permitted to protect civilians and enforce the no-fly zone but as is now widely known, the force used went beyond those parameters to include active assistance to the rebels. According to Russia, the intervention not only exceeded its mandate but made a bad situation worse, and Russia is determined not to allow a recurrence.
As a consequence, situations that cry out for R2P intervention – Syria being a current example – are being neglected. Estimates of deaths from the 20-month conflict in Syria range from 20,000 to 40,000, most being civilians; at least 2.5 million are internally displaced; and over half a million have fled to neighbouring countries as refugees. Russia and China say that it is not the international community's place to meddle in a civil war, which is undeniably true. But if it is clear that innocent civilians are consistently falling victim to war crimes, crimes against humanity or other serious human rights abuses, R2P imposes a duty on the international community to act.
This is where Australia might be able to do some good. Obviously Russia and China are not going to change their policies on non-intervention after the first cosy chat with the Australian permanent representative, one reason (of many) being that such policies are determined in their respective capitals, not on the ground in New York. But it is just possible that Australia might be able to use its position as a middle power and "honest broker" to quietly build consensus, over time, on what situations will call for an R2P response from the Security Council.
This may be an opportune time, with the publication this week of the report of a panel of experts appointed by the UN Secretary-General "to advise him on accountability during the final stages of the war in Sri Lanka". The report was scathing in its condemnation of both member states and the bureaucracy of the UN in failing to respond to the conflict in Sri Lanka and the manner of its ending by government forces in 2010. One of the many contributing factors identified by the panel was the uncertainty surrounding R2P and the "[d]iffering perceptions among Member States and the Secretariat of the concept's meaning and use", and it noted that, "although many Member States still have serious concerns regarding some interpretations and implications of the Responsibility to Protect, in practice possibly the greatest contribution of this concept would be as a process to help facilitate the emergence among Member States of early political consensus on human rights protection."
So there is much, much work to be done to convert R2P from a noble theoretical principle into a policy that has a clear, agreed meaning and that can be – and will be – practically applied in an appropriate situation. As ultimately it is the 15 members of the Security Council that will decide if and when such a situation has arisen, Australia will be well placed if it chooses to take up the challenge of building consensus on "operationalising" R2P. It will have its work cut out, but the potential benefits, in terms of human rights protection, from even a modicum of success would be worth the effort. And in making that effort, Australia might just regain its reputation as a good international citizen.