For any nation, there are two broad forms of law, which are applicable on it; the first one is the domestic law, which is formed by the nation itself and the other is the international law, which is applicable on the nation, due to being part of the world (Aust, 2010). With the increasing interdependency of the countries over each other, the importance of international laws gains more significance. This is the reason why a number of domestic laws of each nations, have some or other element of international law in them (Klabbers, 2013).
It has often been seen that the international treaties have been adopted under the Australian law (Saunder, 2010). However, in the case of Samootin v Shea [2012] NSWCA 378, Campbell JA stated that the international treaties do not form a part of the domestic law of Australia nor does it operates as a direct source of obligations or rights of the individuals as per such law (Australasian Legal Information Institute, 2012). In the following parts, a discussion has been carried on this observation of Campbell JA, and some of the treaties which have been ratified by the Government of Australia, and which have become a part of municipal law of the nation have also been highlighted.
A treaty can be defined as agreement which is formed between the states, i.e., different nations, and is binding as international law. In certain situations, the international organizations are also a part of the treaties (Miller and Meinzinger, 2012). Hence, it can be easily stated that an agreement between Australian State and Territory, along with a foreign Government cannot be deemed as a treaty. Even when a document has been agreed upon amongst two or more sovereign nations, it is not deemed as a treaty, until such nations intend the document to be binding (Ramsey, 2007).
The statement given by Campbell J in the case of Samootin v Shea was a decision dating back to 2010. The issue started in the year of 2001; at that time, Alexandra Samootin was engaged in a number of lawsuits relating to the circumstances in which both Samootin, along with her ex-husband Christopher Shea, vended a home which was located in Mona Vale. The rest of the acquisition value came to be used as a segment of the buying value of possessions, which was located at the address of 24 and 26 Oxford Falls Road, Beacon Hill. After five years, Samootin became bankrupt (Australasian Legal Information Institute, 2012).
Certain rumors were presented before the Australian Court, which related to Samootin making a leave to petition or regarding seeking a leave to appeal, so as to postpone the time duration. These rumors stemmed from a number of decisions which were ruled out against Samootin, in the previous lawsuits, raised in the New South Wales’ Supreme Court. The court made an order which disapproved the claims of Samootin. The raison d’être behind the rejection of claims, stems the claims which were offered to defend the alleged rights, in case they cropped up, which would have been entrusted with the Bankruptcy representative of her; furthermore the same would not have been re-vested in Samootin, once the charges bankruptcy had been taken back or had been discharged (Australasian Legal Information Institute, 2012).
An observation was made in this case by the court regarding the domestic law of a sovereign state being its internal, national or the domestic law, and which is usually described as an opposite to the global laws. This is where the statement made by Campbell JA can be properly explained. A common assumption is that the treaties are not combined in the laws of Australia openly, through the route of ratification. Hence, a treaty cannot be treated as being an element of the domestic law in a direct manner, till the time, the implementation of it is attained via some specific legislation. In absence of such legislation, the rights to impose the obligations cannot be made through a treaty (Australasian Legal Information Institute, 2012).
Another element which has been brought to notice is that the Government of Australia ratified global treaties, do not form a part of a nation’s domestic law; in addition to this, it does not function as being a direct source of the personal rights or obligations according to the law, and as has been famously established in the matter of Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449 at 286-287. To state it in other words, upon the passing of legislation through the government, which is an agreement’s tool, the lawmaking of Australia forms a part of the nations’ domestic law, instead of merely being a treaty (Greylings Attorney, 2017).
The three judges, i.e., Kitto JJ, Williams ACJ and Webb, in the matter of Brennan v Brennan [1953] HCA 28; (1953) 89 CLR 129 at 134 stated that subject to the exceptions which are presently irrelevant, the order of the higher court judge would be deemed as valid according to the nation’s domestic law. Such rulings provide the reasons for the appeal of 2010 of the Samootin case to not have a proper standing, which could facilitate the appeal to be challenged, which has been the attempt when the same was challenged in 2012 appeal. Hence, the 2012 appeal was deemed as an abuse of such kind of procedure (Greylings Attorney, 2017).
The researchers conducted till now have suggested that Australia does not affirm to be bound by the treaties based on the human rights in general, till the time the nation becomes fully content on the notion that the international norms can be observed through the domestic laws. Though, Australia, as a nation, has made a decision regarding being guaranteed by the International Covenant on Economic, Social and Cultural Rights, i.e., ICESCR and International Covenant on Civil and Political Rights, i.e., ICCPR (Rothwell et al. 2014). This is in addition to various treaties like the agreement on the political rights of women, the agreement on the prevention and punishment of crime of genocide, the global convention on the elimination of all forms of racial judgment; and the convention on the removal of all forms of discrimination towards women (Australian Human Rights Commission, 2017a).
Till the time the international treaties are unified in the domestic laws of Australia, through the passing of certain legislation, the human rights treaties do not have an applicability in the nation, and this is the case even when as a nation, Australia has committed towards these treaties. The research makes it clear that a few parts of a treaty may still be present in the national legislation. An example of this notion can be noticed in the range of provisions which are present under the Convention of the Rights of People which relates to the ill health and which is clearly reflected in the Australian Disability Discrimination Act, 1992 (Cth) (Australian Human Rights Commission, 2017a).
The Commonwealth Parliament of Australia has been given certain powers under the segment 51(xxix) of the Constitution of Australia as per which they can legislate the issues pertaining to the external affairs. Under this power only the Commonwealth Parliament of Australia gets the right to ratify the legislation, which acts as the instrument to the relations of the worldwide agreements of which the nation is a party (Australian Human Rights Commission, 2017a).
Ratifying the international treaties cannot be translated as handing over of the international body’s sovereignty. Treaties help in explaining the scope of the action of the State, and the treaties which have ratified by Australia has an impact over the manner in which the Australians conduct themselves, both domestically and internationally (Australian Human Rights Commission, 2017b). The following treaties have been explicitly ratified by Australia.
In November 1989, CRC was adopted by the UN General Assembly. CRC remains the most comprehensively ratified human rights treaty/ pact, across the globe. There are only two nations who have not ratified CRC and these are Somalia and the United States (Acton 2013). The CRC was ratified by Australia in December 1990. And due to the ratification of CRC by the nation, Australia has the obligation of ensuring that the children in the nation are able to enjoy the privileges contained in this treaty. CRC’s core ethics include the children having the privilege of growth and survival; the; the right to enjoy the rights provided under CRC without any discrimination; and privilege to express their views (Australian Human Rights Commission, 2017c).
On January 22nd, 1954, Australia ratified the UN Convention of 1951 relating to the Status of Refugees. Some have argued that Australia should initiate a lead and demand for the review of this convention, along with the global protection system, of which the nation is considered as a keystone. It has also been argued that this convention is not doing much good; moreover, it is failing in providing the welfare to both the states and the refugees. The nation has the power of initiation an improvement in this matter and steps should be taken in this regard (Refugee Council of Australia, 2016).
On November 24th 2008, the government gave its commitment towards strengthening of the human rights of the women in Australia, by taking steps towards becoming a part of Convention on the Elimination of All Forms of Discrimination against Women’s Optional Procedure, i.e., OP-CEDAW. By giving its agreement towards the OP-CEDAW, the Government of Australia had put forward an influential statement regarding the notion the no matter the type of discrimination, it would be held as improper against the women. In addition to this, it was also portrayed that the nation took the matter of endorsing gender fairness in a very serious manner (Australian Human Rights Commission, 2008).
Till a substantive time, the universal jurisdiction had a steady history in spite of some dramatic and turbulent periods. In the past, in the issues relating to extra-territorial scope of the state law, the universal jurisdiction had played a modest and stable role, which has been implemented in such states through the competent court (Inazumi, 2005). Specially, this phenomenon has been trouble-free due to its constricted cope and its application being a non-threatening one.
However, in the recent times, the world has been growing through some disturbingly turbulent times, which have been aptly highlighted through intellectual arguments, and through zealous political debates. The universal jurisdiction principle presently holds a variety of issues, which include both criminal investigations and the prosecutions which involve global crimes, which have been covered under the laws of the state and have been deemed as severe in nature (Ratner, 2015).
The ICJ, also known as the International Court of Justice was devised on the very basis of universal jurisdiction principle, so that it could help in the issues revolving around the extra-territorial scope of the state laws. It also acts as the major judicial organ of the United Nations in its modern-day avatar. It has the general jurisdiction over the disputes amongst the nations, particular with regards to the UN members, which virtually includes each and every country across the globe (Kolb, 2014). The ICJ, as is presently constituted, has jurisdiction over three types of cases, which are also known as the special agreement cases. When such happens, an agreement is made by the parties regarding dispute related submissions in competent court cases, which have been supported through certain treaties. Though, in such cases, the court would have to determine the issues which are born in future; and lastly, the disputes which arise amongst the states and which are voluntarily subjected to the court (Zimmermann et al. 2012).
When the ICJ began its operations in the year of 1946, and even till the present day, a number of disputes or cases have been determined by the ICJ. The matter of the fact is that as a court, it has a substantial academic, as well as, political consequence since the judgments of ICJ in the majority of cases assist in providing solutions to the issues or the disputes which are borne in the international context. Even though there has been failure on part of the states in acknowledging ICJ’s jurisdiction or adhering to its judgments, ICJ remains as a powerful symbol of international legal system (Riddell and Plant, 2016). The supporters of ICJ have put forward an argument that it plays a significant role in the promotion of authenticity of the international legal system by solving the issues or disputes brought to it, in a principled manner. Though, the critics claim that the rulings given by ICJ are by and large, motivated in a political manner, as the majority of losers in ICJ’s rulings are diplomats and politicians (Wellens, 2016).
Possible Objections Regarding Jurisdiction of ICJ, Raised by State Z
Even though ICJ is a strong symbol of international legal system’s effectiveness, yet it has experienced a number of challenges in the recent time, specifically pertaining to jurisdiction (Quintana, 2015). This can be evidenced from the cases which were filed in the court, where almost half of them were dropped even before a substantive ruling or decision could be made by the court. Characteristically, the determination and hearing of the cases under the jurisdiction of the ICJ remains as the bases for controversies, especially with regards to the process and system of the judiciary (Tams and Fitzmaurice, 2013).
One of such example is the case of Ecks Company, where the jurisdiction of ICJ has high chances of being challenged. The preliminary case against Ecks Company, along with its branch office manager, through the State Z did not involve the hiring of a lawyer by the company, for representing them in the court, or to answer the charges, which were laid down against them. This resulted in a default ruling being drawn, as per which the small branch of the company had to get its assets confiscated by the court. Further, the matter was not appealed against. State X was pursued by the company to file a case against the State Z at the ICJ, as the endeavor to institute a new branch at the State Z was quashed.
As a lawyer was not hired to represent the company at the preliminary case and also an appeal was not made against the ruling, the State Z has high chances of challenging the jurisdiction of the ICJ. While challenging the same, it is quite possible that State Z would put forward the protestation with regards to the jurisdiction of ICJ. This is because the body had to deal with similar matters time and again in most of the cases heard by it; and in some cases the mater had to be dropped by the ICJ. The common objections which can be raised by the State include:
Reflection of Ideology in Ruling of ICJ
A potential objection relating to ICJ’s jurisdiction is regarding the reflection of the ideology which begs the questions of the same being that of the judges or whether it relates the unbiased operation of the traditions of legal reasoning, on the ruling given by ICJ. The decisions of the judges and the voting patterns have been a matter of significant curiosity for the legal academicians, particularly regarding the jurisdiction of ICJ (Ryngaert et al. 2016). It has been argued by the legal academicians that ICJ, as a court, is similar to the United States’ domestic courts, as well as, the ones present worldwide. Due to this point, the judicial voting is a key issue in this matter, on the basis of the premises to the rulings reflecting the national interests or ideology, where the legal reasoning is applied in a predictable manner (Coleman, 2014).
It has also been noticed that the national interests, coupled with the different legal considerations influence the judges. And due to these reasons, a proper lawful result is an uncommon parlance in the ICJ’s cases (Voigt, Albert and Schmidtchen, 2006). Hence, if the case gets the permission of being continued, a judge belonging to State X has high chances of ruling in the favor of State X, and the situation would be the same for State Z. This demonstrates that the reflection or national interest and ideology of the judges form the base of challenging the jurisdiction of ICJ.
Absence of Appropriate Nationality
As per the statute of ICJ, claims which have been made by the nationals can be sponsored by the state, against the other states. The rationale behind this is to make certain that the diplomatic protection is maintained, and also for establishing that only states can be the parties before the ICJ, particularly in such jurisdictions which are contested (Thirlway, 2016). In Ecks Company’s matter, nationality is a major concern as contentious jurisdiction is involved here.
In the given case study, the jurisdiction of ICJ is most likely to be challenged by State Z on the basis of foundation of lack of appropriate nationality. The Statute of ICJ allows the states of a dual national to sponsor the litigation on behalf of their national; though, for the same, there has to be an authenticity in the association or linkage between the sponsoring state and the national. In the absence of such an authentic linkage between the two, there is a deficiency of a suitable nationality, as a result of which, the ICJ’s jurisdiction is hindered.
A contention which can be put forward by State Z is that since Ecks is incorporated in State X, it has a formal link with this state, but it cannot be ignored that an authentic link was not present in this case. And this is because of the fact that the company’s headquarter was situated in State Y, along with the presence in State Y of the operating plant and most of the company’s employees and the shareholders. Basically, due to the majority of operations of Ecks Company being located in some other state, which was not the State X, there is an absence of a legitimate connection. Hence, a lawsuit cannot be filed by State X at ICJ, for the reasons of Ecks Company being its national.
Failure in exhausting all the Possible Local Remedies
On the basis of the statue of ICJ, it is crucial that all of the possible local remedies have been exhausted to such an extent that the same exceeds the procedural requirement. So, when a dispute is brought forward, it is crucial that before knocking the door of ICJ, the available local remedies should be explored. This is a key requirement as unless and until the possible domestic remedies have been exhausted, none of the remedies can be feasible for a legal injury, at the international level (Couvreur, 2016). Though, for such local remedies to be exhausted by the foreign nations, the same have to be effective, easily accessible and cannot be merely notional or illusionary. In Switzerland v United States (1959) ICJ Rep 6, as Switzerland failed to exhaust its local remedies, the case could not be brought to ICJ (Abass, 2012).
In the given case study, Ecks Company would have to exhaust all of the available local remedies before a contention can be made in the ICJ. And in case such a contention is made, State Z would be able to raise the objection of lack of jurisdiction on part of ICJ due to the non-exhaustion of the local remedies, before making an application to ICJ, by the company.
References
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