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The Jurisprudence of the International Court of Justice: Insights from Australian and New Zealand Judges

Sir Kenneth notes the role of civil society in encouraging the New Zealand government to take the Nuclear Tests case to the Court and, particularly medical groups, in supporting a request for an advisory opinion by the World Health Assembly.

Henry Burmester’s article, ‘Civil Society and the Instigation of International Court Litigation: The Australian Experience’, is a sustained account of civil society groups in Australia. Burmester investigates how civil society groups encouraged the Australian government to resort to the ICJ in the two cases in which Australia has been an applicant — Nuclear Tests and Whaling. Burmester chronicles the careful strategies of civil society groups to persuade opposition political parties (the Australian Labor Party (‘ALP’) in both contexts) to commit to ICJ litigation ahead of national elections. In his view, this was a critical element, and the commitment was based on strong public opinion on both nuclear testing and whaling. Unions were prominent in the case of nuclear testing, but Burmester notes that the ALP governments of three Australian states had launched the idea of international proceedings. In the case of Japanese whaling, a range of animal welfare and conservation groups, as well as academics, strongly supported legal action, as Campbell’s article also attests. The litigation in each case was duly launched after the ALP was elected into office: months after the election in Nuclear Tests but two and a half years later in the case of Whaling.

Burmester urges civil society groups to be more cautious when campaigning for international litigation. He considers that civil society groups in Australia have tended to emphasise the theoretical possibility of ICJ litigation without attending to the evidential basis for a case or the long-term consequences of litigation. In Burmester’s view, civil society has left it to the government to do the hard yards of collection and analysis of evidence and to weigh the possibility that a respondent state might withdraw acceptance of ICJ jurisdiction as a result. He also points to the uneasy nature of these government–civil society alliances and the tensions that can emerge once a case is launched, when governments assert complete control over the legal proceedings. Nevertheless, for the controversial issues of French nuclear testing in the Pacific and Japanese whaling in the Antarctic, civil society groups in Australia have been integral to productive encounters with the ICJ.


These elections are a microcosm of the larger challenges to the Court’s membership as campaigns for the election of judges from former African and Asian colonies gathered momentum in the 1950s and 1960s. It investigates the debates within the UK bureaucracy over reconciling the ICJ Statute’s requirements that judges be ‘independent … [and] persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law’ (art 2) and that ICJ membership reflect ‘the main forms of civilization and … the principal legal systems of the world’ (art 9). One concludes that British officials used a political lens in assessing candidacies for election to the ICJ, informed by a ‘Cold War mindset’, which distrusted candidates from countries with any Soviet connection. The UK government gave less priority to qualities of judicial independence than to a judicial presence that was perceived to be like-minded and sympathetic to UK interests.


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