Graduation address given by Emeritus Professor Edward Watson McWhinney QC

Emeritus Professor Edward Watson McWhinney QC gave the occasional address at the Faculty of Law graduation ceremony held at 2.00pm on 21 May 2010.

Emeritus Professor McWhinney is a barrister-at-law, barrister and solicitor, a former academic at Yale, Toronto, McGill, Indiana and other universities, and recipient of the title of Honorary Fellow of the University of Sydney.

Emeritus Professor Edward McWhinney QC

Occasional address

The New Pluralism and the emerging new World Public Order and World Economic Systems

It is a privilege to be invited to address in Convocation the new graduating Class in Law of the University of Sydney. As an imaginative and also, for the present times it may be suggested, timely gesture, the Chancellor of the University, Professor Bashir, decided to invite, as special guests of the Convocation, surviving members of the Students Representative Council of the University elected for the years 1947 and 1948. Several of them were participants then in a celebrated ABC Network symposium on the burning question of the early Cold War: "Is a Third World War inevitable?" The graduating classes of that era six decades ago involved for the then near century-old institution an historically unique melding of two age groups - very many older students who had either interrupted or else had to postpone entry on University studies because of active service in World War II, and the more usual group of younger students proceeding directly to the University from secondary schools. There was also , for the class completing studies in 1948, a record number of women students - three in all - a fact singled out in the SYDNEY MORNING HERALD at the time and repeated two weeks ago when one of these, Marie Kinsella, passed away. Looking at the list of students graduating in the Class of 2010, one finds that in common with Law Schools in many other post-industrial societies more than fifty per cent of the graduates now are women. Another equally striking point of differentiation for the Class of 2010 from earlier graduating classes is to be found in the richness and diversity of the representation within it from all main cultural and linguistic systems and all regions. In a very real sense the Class of 2010 reflects the new, pluralistic, culturally inclusive and representative World Community in process of emergence and acceptance today.

A recent international symposium project, bringing together thirty-six jurists from eighteen different countries representing all main legal systems and legal cultures -"Multiculturalism and International Law" [Sienho Yee and Jacques-Yvan Morin [Joint Editors} [Foreword, Boutros Boutros-Ghali; Introduction, Judge Shigeru Oda], published in 2009 - identified the new Multicultural fact as operational reality in international relations today, two decades after the symbolic ending of the Cold War with the fall of the Berlin Wall in 1989, and in consequence as a leitmotiv for ventures in new International Law-Making for the 215t century. In truth of course the Cold War and its correlative Bipolar, twin [Soviet and U.S. led] political-military bloc system of World public order had already given way, over the passage of years since War's end in 1945, to Peaceful Coexistence and then Detente and to a disciplined, fully programmed system of active exchange and cooperation between the two rival bloc leaders on nuclear and general disarmament and peace and security matters and other key tension-issues between them. Yet the basic institutions and processes for inter-allied and international governance set up by the US and the Soviet Union and the other members of the Wartime Alliance against Fascism at San Francisco in the Spring of 1945, in anticipation of their then approaching victory, had hardly been changed since 1945. The United Nations Security Council, designedly the executive control and policy-making element in the two-tier [Security Council and General Assembly] lawmaking authority established under the UN Charter, gave preeminent role and authority to its five Permanent Members each of whom was endowed with the constitutional-legal power of Veto to ensure this. It was all predicated upon the continuance into peacetime of the wartime unity of purpose and objectives, and that consensus was soon shattered with the onset of the Cold War. The fact remains that with the jelling in the UN Security Council in 1945 of the political-military status quo at War's end in 1945 and then the failing, either because of the extreme rigidity of the constitutional amending machinery in the UN Charter itself or else perhaps the lack of any real will for change on the part of the incumbent five Permanent Members, the Security Council 's composition has failed to respond to the powerful Winds of Change in the World Community since 1945 and the rise of significant new, Regional and other forces-Germany and Japan, the erstwhile "enemy states" in UN Charter terms, of course, but also India and, today, Brazil, Indonesia, Nigeria and South Africa. If the lack of fundamental balance in the Security Council, culturally and regionally and increasingly also in terms of sheer financial-economic power, cannot be redressed, the main political players may choose to tum to other, alternative arenas where the Veto does not exist, such as the UN General Assembly, on the legal precedent successfully asserted by the US Administration in the Korean crisis in 1950. More likely in the immediate time dimension is a new confidence and accompanying technical sophistication on the part of genuine Regional Organisations functioning in accord with Chapter VIII of the UN Charter. What is being postulated is the exercise of a primary jurisdiction in the determination of the existence of Threats to the Peace, Breaches of the Peace, and Acts of Aggression under Chapter VII of the Charter extending to the application of enforcement measures, including military intervention, if deemed appropriate by the Regional Organisation concerned. It would not exclude action by the UN proper if the Regional response should be too tardy or be deemed subsequently as inadequate or unresponsive. It might help balance or correct the apparent anomaly in current outside enforcement actions in both Iraq and Afghanistan that the military interventions are being undertaken and carried out by non-Regional players, without significant Regional, Asian presence including immediate neighbour state India.

Another area where a dead-hand control of the soon-to-be- victorious World War II allies is seen to operate today unhappily is that of the Bretton Woods financial machinery, negotiated and adopted in 1944 and fulfilled, institutionally, in the International Monetary Fund and the World Bank. At the time of their creation, understandably enough perhaps, they came to be dominated by the US and the Western European states, with the executives and technical experts from their main international trading banks very strongly represented in the key administrators. There were murmurs against both institutions, in their constitutional structures and their Western financial character and profile at the time the UN General Assembly, at the instance of its Third World members, launched its initiative for a New International Economic Order in the 1970s and 1980s, producing a high-level Declaration and Charter of general principles but not producing changes in the composition or structures or substantive decision-making processes of existing institutions. The collapse of Wall Street and the onset of the World Recession in 2008 and a perceived lack of prudent foresight and advance control remedies on the part of both main Bretton Woods institutions brought simmering discontent into the open. The new BRIC group - Brazil, Russia, India, and China - not adequately represented as they saw it in IMF and World Bank decisions, and evidently capable, as new economic giants in their own right, of operating independently if necessary - were leaders in the calls for urgent international responses to the failings of the international banking system. This would suggest the merits of opening up the IMF and the World Bank in timely fashion to fundamental change on a more truly representative and inclusive basis to take account of the new financial players and their own distinctive objections as to the Bretton Woods heritage today.

What is clear is that there is going to be far-reaching change anyway in response to the new Multicultural fact and accompanying pressures from the new players. We should join in the movement for change and embrace it as a modernizing force that we should seek to reconcile with the best of our own Pluralism and Pluralist principles. The regime change in the United States with the November, 2008 Presidential elections provides an occasion for a new Administration to abandon or alter the policies of its predecessor and to chart its own course without any politically intolerable loss of face. It is already accepted that there is an end to Unilateralism and action outside the United Nations and the UN Charter, and a return to Multilateralism and to classical diplomatic negotiation within the UN framework to build a genuine international consensus that is culturally and regionally fully inclusive in support of any projected international action.

Here are some lessons in avoiding East-West Nuclear conflict in the difficult and dangerous Cold War years to offer for the era of Clashing Civilisations and Colliding Cultures that we have now, in
Professor Huntington's words, entered on:

  1. Maintain Dialogue at all times and an Open Door to negotiation.
  2. Seek to de-ideologise discussion by avoiding debate over abstract theory and concentrating instead on concrete problem-situations and their concrete solution. This means a deliberately empirical methodology supported by credible fact-finding processes, and a pragmatic approach to reconciling differences.
  3. If official, public arenas for negotiation should become closed or otherwise blocked, try to make contact directly with your own particular professional or skill groups in other systems. The first real breakthroughs to securing East-West treaties during the early Cold War years stemmed from direct meetings at international professional reunions between Western and Soviet scientists and medical specialists who then reported back their common concerns and common solutions to their own governments.
  4. Try not to become too much of a prisoner within your own maternal language and your own distinctive national culture. In the early Cold War years my own cultural community who had English, and sometimes French or German or the dead classical languages Latin or Greek, began, with difficulty , to try to acquire Russian too. I commend to the Class of 2010, if you don't already have it, to try to take on a second or even a third language: why not, today, Mandarin, Japanese, Hindi as obvious enough options, but there are also other possibilities from Asia and from Africa, and you might want to consider Arabic, and then Portuguese [for Brazil]. It will make you a better and more complete citizen and a more effective lawyer in the pluralist, interdependent World Community which you will be entering now.

Again my congratulations and best wishes for the future