Preface

This book is the result of research conducted for an Australian Research Council Discovery project entitled ‘Choosing Litigation to Resolve International Law Disputes in the Protection of Australia's Offshore Assets, Its Citizens and Foreign Trade’. Australia has a rich experience in international adjudication and arbitration (referred to collectively as ‘litigation’), and the case studies in the project focused on areas that have high political, social, and economic interest for both the Australian government and the Australian people. Issues related to Australia's marine resources (including whaling, fishing, and hydrocarbon exploitation) have been the primary subject areas litigated by Australia before international courts, as well as defending and asserting trade interests at the World Trade Organization (WTO). By contrast, the protection of Australian nationals abroad has not resulted in litigation, although it has been contemplated, despite the high media attention accorded to these issues on almost a daily basis. Through these case studies, a critical question posed was whether a comprehensive and integrated framework of legal and political factors could be devised to determine when international litigation should be pursued or rejected as a dispute settlement option. More simply, why do states litigate? While the project had a focus on Australian practice, this book is intended to take some of the key lessons from those studies and consider them in a broader context, both substantively and geographically. From a substantive perspective, I have long been interested in the question of whether particular substantive areas of international law lend themselves more to litigation when disputes arise. Is there something about international trade law or the law of the sea that made states more amenable to the idea of including legal, binding, third-party dispute resolution in the key constitutive agreements in these areas? Or perhaps it is not the area of law per se, but the issues concerning international trade or maritime matters that make arbitration or adjudication a necessary regulatory component of these regimes?