It has been accepted that treaties are agreements that fall under in the international laws. It is the relationship between the sovereign state and the international organisations. They may be in the form of international organisation, international protocol, covenants, and few more. If the parties who have entered into a treaty fail to oblige by their duty they will be held liable under the international law (McGovern 2016).
The constitution of Australia, allows the government to enter into treaties but the treaties have to be sent to both the house of parliament at least 15 days before being signed. Although treaties are a source of the Australian law they sometime require act of parliament to be passed depending on the nature. Treaties are administered and maintained by the Department of Foreign Affairs and Trade (Vagts et al. 2015). Australia has joined certain treaties except for those which terminate the state of war are not directly included in the laws of Australian. Signing and ratifying do not domestically let treaties operate. There can be no treaty in the absence of legislation, as well as no obligation on individuals or creation of rights in domestic law. However, the treaties are justified and also important for the common laws development and will be used for interpretation of statutes. Australian treaties generally fall under the following categories: extradition, postal agreements & money orders, trade, and International conventions (Cavusgil, et al. 2014).
The Australian laws are believed not incorporate treaties by the act of ratification or by attainment. A treaty cannot not be a part of the domestic law unless it is made part of it with the help of legalising the same. However, sometimes legislations may be absent; in such cases, it cannot create any kind of obligation over the people residing in Australia (Subedi 2016). But this cannot be understood as that, the treaties have no role to play at all over the Australian laws, before it is incorporated. It was laid down by the High Court in, Minister for Immigration and Ethnic Affairs v Teoh, that treaties may have some form of effects on domestic laws of Australia before they are implemented through legislation. The court should apply the common law and the statutory law that substitute the local laws of Australia, in case if any conflicts arise (Wild, Wild and Han 2014).
The courts have recognised the International Convention to those declaring the universal fundamental. The court for the growth of common law in Australia has taken this step. In recent years, international laws role in performing judicial functions have steadily grown. Certain points have been brought to notice in various cases where the international conventions have been referred by the judges in their discussion about the common law, but has an active part in the conventions were comparatively less. “Kirby J” has been an vigorous activist for the acknowledgement of international human rights. However, it is understood that the treaties are lawful and significant and their effect on the expansion of the common law (Picciotto and Mayne 2016).
The circumstances in which the treaties are used is not very clear but still the expansion of common law in the use of foreign convention is very well accepted by the majority of the courts. The principles that are settled by forming a treaty with a foreign body a state does not have any power to change the law. Based on what the Court will take action of the integrated treaties is still an issue that has not yet been answered. The international human right is a weapon that is acknowledged as persuasive authority. They are also a familiar recognition, for instance the court’s decision in the other places are often considered by the Australian courts which help them in giving judgements (Foley and Manova 2015).
International human rights are often referred as the “modernising agent” of the prevailing common laws and not as the founder of “new domestic common law”. International human right are only able of reforming internal structure of the mass. In the earlier days, the High Court had a very limited scope in the use of international conventions. In two of the cases, D & R Henderson v Collector of Customs for NSW and Yager v R, they were required with both the quality of being open to more than one interpretation in the description or the way the statute is explained. In question and the intention of effect of the statute to the convention, this is called to help the interpretation. In the year 1992, the Court of Dietrich, acknowledged the fact that the role of treaties is in understanding legislation and not to execute any existing treaty in question (Carr and Stone 2013).
Although it has very less use out of the “unincorporated treatie’s” that are beyond the purview of human rights but inside the field of judicial understanding and has focused on narrowing the bridge in norms and Australia’s local law. It has also been marked in both the interpretative rules and in administrative law. The law which regulates the relationship between treaties and domestic law is not settled. The main issue still arises as to which unincorporated treaties have the power to affect the local law of Australia, it is by the interpretation of statutes or the development of the law or can also be the creation of procedural rights of fairness. The inter-relationship between the national and international law, including the fundamental rights have undergone various evolutions as emphasised in “Newcrest Mining (WA) Ltd V Commonwealth”. In my view, the pressures of internationalisation or globalisation are there to increase the decree which is used to recognise the rule which is used to establish the need for legislation (Foley and Manova 2015).
Transferring of the sovereignty to an international body is not considered as ratification. Treaties usually define the scope of a states action. The treaties that are ratified by Australia effect Australia in their behaviour, whether internationally or domestically. To ratify treaties of Australia there is a judgement that any form of restrictions on the graph of the happening actions whose results are more from the benifit that arise from the existing international agreement. Some treaties have also been set up by committee’s where they receive reports and also monitor the working and obligation by the State and its Parties. Such treaty is known as the body of the “United Nations Human Rights Committee”, it is has to supervise States Parties’ working of their obligations under the “International Covenant on Civil and Political Rights (ICCPR)”. These treat bodies have an advisory role and are not forceful in nature. The Human Rights Committee are not responsible to legal jurisdiction over nation states which have brought ahead to the ICCPR.
Making the treaty is the responsibility and the role of the Executive and therefore, Parliament has no role to play in making any treaty under the Australian constitution. There are rights which are safeguarded under the “International Covenants on Civil and Political Rights”, all over the world and are executed by the domestic rights. At the Federal level, it is only Australia that remains democratic in the world and has not passed any law directly executing the ICCPR (Foley and Manova 2015).
Australia has executed some of its treaties and promises in the international human right law which have a severe direct impact on our day to day lives. For instance, “the Commonwealth Racial Discrimination Act 1975 implements the Convention on the Elimination of All Forms of Racial Discrimination into Australian law, and the Commonwealth Sex Discrimination Act 1984 executes some of the rights for women contained in the Convention on the Elimination of All Forms of Discrimination Against Women.
Australia is very slow in giving effect to various international human rights and their duty. For instance, there are no national legislations which implement under the “Convention on the Rights of the Child.” It is believed in Australia that the rights protected by “the International Covenants on Economic, Social and Cultural Rights” are adequate. Australia has not given any effect to the rights that are safeguarded under ICCPR.
This commission has the power to carry out a systematic formal inquiry in few of the Australian human right obligations which includes violation of the ICCPR but has no power to impose any punishment or obligation. Thus, this is not sufficient to give any light to the requirements of ICCPR. Every individual has easy way of reaching out to the rights that are laid down in the treaty is ensured by the ratifying state.
There is increased need of treaties as the world’s interdependence has been magnified. The challenges faced by them require both national and international support. Problems usually are not be properly acknowledged by a country who is solely acting. Can be explained in the following example, degradation of ozone which is acting in a cordial manner and the scope internationally becomes important for a State to safeguard it in its own interests. Thus, treaties have a crucial role to play in today’s world.
Two types of cases are mostly entertained by the International Court of Justice (ICJ) named, “Contentious Cases” that is legal disputes that arise among the states and “Advisory Proceedings” that is the request for advice of the court on legal matters by “United Nations organs and other specialized bodies (Elias 2013)”.
Parties to “contentious cases” are those who have agreed to the jurisdiction under certain jurisdiction and are members of United Nations and are also parties to the Statues of the court or are those who have agreed to its control under certain conditions. .
When the state concerned enters into a special agreement where the dispute has to be submitted to the court in this case only the ICJ is allowed to entertain any dispute, also by the virtue of jurisdictional clause. The ICJ can also entertain dispute via the effects of reciprocal declaration that are made under the statutes (French 2017).
The ICJ proceedings are incorporated Advisory proceedings that are brought before the Courts notice are mainly applicable to five organs of the “United Nations and to 16 specialized agencies” of the United Nations family. When a request is made for an advisory opinion, the Court may give its own opinion with full information they have of the facts that it has and it also has the power to preside over written and oral proceedings, little aspects of which can be seen in the proceedings of contentious cases. In this theory, the Court if wishes to can also do without such proceedings, but it has never ignored them entirely. Advisory proceedings are held at public meetings (Kolb 2013).
The International Court of Justice acts as the court of the world and its head office is located in Hague. The International Court of Justice succeeds over permanent International justice and it courts and is also one of the primary organs of the “United Nations Organisation”. The statutes of the International Court of Justice are the main documents that constitute and regulate in the court. The United Nations and his members have become a part of the international courts. Jurisdictions however become crucial for the courts in contentious cases. The key principle of the International Courts of Justice is that the jurisdictions are based on the basis of consent and the advisory functions of the court are open to only specified United Nations bodies and agencies. These opinions by the court are although consultative in nature even then they are influential and respected (Karamanian 2016).
In the International Court of Justice, while deciding the cases, applies international laws like the international conventions, international customs, and also the general principles of law that are recognised to the civilized nations, the precedents as well as the teachings of the jurists. It is responsibility of The International Court of Justice to solve disputes. The main objective of the ICJ is to take effective measures in order to prevent as well as remove threats and make peace and also suppress aggression and other breaches and make terms with peace (Jennifer et al., 2014).
The International Courts of Justice is the core of the prime organ of the “United Nations”. The ICJ, although enjoys comprehensive jurisdiction by making an impact on all aspects of public international laws, still all its jurisdictions remain consensual and constrained. The “International Court of Justice” is the primary means for solving problems between the States and the court is recognised for its participation. There are various issues that we can note are influencing the ability and the capability of the International Court of Justice. The most important issue faced by them is the alternative dispute settlement arrangements made by the states. It was expected from the International Court of Justice that it would become the principal of the judicial organ for solving dispute between the states but failed to do so. Therefore, the court has been not appreciated for its inability and has experienced failures (Trindade 2016).
There are certain cases that are not of any global importance, in more than about 20 “contentious cases”, the operation of the International Court of justice that is the complaint has been questioned with the ICJ dismissing more than the needed cases. Many states have abided according to the judgements of the International Court of Justice in their cases, States having an incorporative attitude towards the authority have on certain occasions refused to abide by it. The reasons for the International Court of Justice’s limited influence vary. They mainly include the limits that were put by the International Court of Justice its relatively rigid in its procedure. The basis of jurisdiction for the International Court of Justice is by the agreements made by States whose parties to a dispute. Consents are expressed in the following ways, “Special Agreement”; the conclusion of it is to submit the dispute after it has arisen. Jurisdictional Clause; “the parties agree in advance to submit any dispute concerning them. Declaration made under article 36(2) of the Statute”, “the Doctrine of Forum Prorogatum, Conditional and Unconditional Jurisdiction”, Reservation to Jurisdiction and also some types of Reservation. “The primary function of the Court is to settle the dispute according to the international law; Article 38(2) gives authority to the Court to decide issues that are ex aqueo et bono, based on equity if the parties agree to it (Jennifer et al., 2014).
The International Court of Justice has a prime role in today’s day when compared with the previous records. There were many cases that are mentioned on the list of the courts every year, which indicated that the Court had started to increase more and more stability from various states across the world. “What consolidated this fact was the large number of treaties that was provided for the references to solve these disputes in the Court and the number of states which accepted the compulsory jurisdiction according to “article 36(2)” rising progressively”.
Efforts were made by the Ecks Company to set up a new branch in State Z was not allowed. Finally, state X was able to bring a suit before the ICJ, and both the Sate X and Z have recognised the jurisdiction if ICJ to resolve this dispute.
There are several objections to ICJ’s jurisdictions that the State Z may be able to raise.
If we want International Court of Justice to give some effective jurisdictions, some disciplinary ways should be consideration find solutions to the jurisdictional problems. The limiting of the shortcomings of the court and its functions regarding what can be done. It is not easy to reform the matters of the courts.
Conclusively it may be held that, International Court of Justice can interpret its jurisdiction in a particular way and in an elaborate way, when there is confusion as to what is the limit of its jurisdiction. “The Optional Clause” of reading declaration in a natural and justified way. To elaborate the structure or the making of the International Court of Justice’s working ambit does not allow misusing of its license. Better work can be done by the courts in exercising its effectiveness in the current International Court of Justice and in an environment where there is increase in international courts and tribunal it chooses its interpretation of jurisdiction broadly.
References:
Carr, I. and Stone, P., 2013. International trade law. Routledge.
Cavusgil, S.T., Knight, G., Riesenberger, J.R., Rammal, H.G. and Rose, E.L., 2014. International business. Pearson Australia.
Chesterman, S., 2015. The international court of justice in Asia: interpreting the Temple of Preah Vihear case. Asian Journal of International Law, 5(01), pp.1-6.
Elias, T., 2013. The international court of justice and some contemporary problems: essays on international law (Vol. 2). Springer Science & Business Media.
Foley, C.F. and Manova, K., 2015. International trade, multinational activity, and corporate finance. economics, 7(1), pp.119-146.
French, D., 2017. An overview of sustainable development jurisprudence of the International Court of Justice.
Jennifer, A., Banerjee, K., Zawati, H.M. and Hagan, J., 2014. Editors’ Acknowledgment Lin Cong, Caroline Senini and Sean Tyler i Book Review: Resolving Claims to Self-Determination: Is There a Role 1 for the International Court of Justice?. JOURNAL OF INTERNATIONAL LAW AND INTERNATIONAL RELATIONS, 10.
Karamanian, S.L., 2016. The International Court of Justice and the Armenian Genocide. In The Armenian Genocide Legacy (pp. 84-101). Palgrave Macmillan UK.
Kolb, R., 2013. The International Court of Justice. Bloomsbury Publishing.
McGovern, E., 2016. International trade regulation (Vol. 2). Globefield Press.
Picciotto, S. and Mayne, R. eds., 2016. Regulating international business: beyond liberalization. Springer.
Subedi, S.P., 2016. International investment law: reconciling policy and principle. Bloomsbury Publishing.
Trindade, A.A.C., 2016. REFLECTIONS ON A CENTURY OF INTERNATIONAL JUSTICE: DEVELOPMENTS, CURRENT STATE AND PERSPECTIVES. Law, 97(97), pp.210-229.
Vagts, D.F., Koh, H., Dodge, W.S. and Buxbaum, H.L., 2015. Transnational business problems. West Academic.
Wild, J., Wild, K.L. and Han, J.C., 2014. International business. Pearson Education Limited.
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