A treaty can be described as anything in between States that is binding under international law. There are certain cases, when international organizations can also be a party to the treaties. As a result, any agreement created between an Australian State or Territory and a foreign government will not be considered as a treaty. In the same way, even in case of a document that has been agreed upon by two sovereign states, the document cannot be considered as a treaty unless these two nations intended that the document will be binding under the international law (Cranwell, 2001). In the present case, the statement made by Campbell JA in Smootin v Shea (2012) NSWCA 378 will be discussed and at the same time, some examples of the treaties that have been identified by the government of Australia will be given that have become a part of the domestic law in Australia.
The brief facts of Smootin v Shea (2012) NSWCA 378 are that the case started in 2001 when Alexandra Smootin was involved in a lawsuit in different courts related with the circumstances where she and her former husband have sold the house to Mona Vale and the rest of the acquisition will you was used as a part of the purchasing value of the positions that 24/26 Ox Ford Falls Rd., Beacon Hill. However after five years, she turned out to be a bankrupt.
The court had to deal with a number of requests made by Ms. Smootin, who wanted to leave to petition or the postponement for the time to seek leave to appeal as a numerous decisions have been made against her in earlier lawsuit in the Supreme Court of NSW. Eventually, orders were made by this Court in which all the claims of Ms. Smootin were disapproved. One of the reasons given by the court for rejecting the claims of Ms. Smootin was that she was standing in order to bring the different claims. Due to this reason, the claims pursued to defend the alleged rights would have happened, would have been interested in a representative and not reinvested in her after her discharge from bankruptcy. The domestic law is a part of the national or the internal law of a sovereign nation that can be defined in comparison with the international law. After stating this, the observation made in Smootin v Shea can be explained properly. It is generally believed that the treaties are not openly made a part of the domestic law of Australia by an act of ratification. Therefore a treaty does not become a part of the domestic law automatically unless the treaty has been implemented by legislation. On the other hand, if such legislation is not present, the treaty cannot result in creating rights or imposing obligations on the citizens of Australia.
Moreover, it needs to be mentioned that the international treaties ratified by the government of Australia do not result in creating any part of the domestic law of Australia and in the same way, these treaties do not act as the direct sources of personal rights and duties (Chow Hung Ching v R). Or in other words, it can be stated that if a legislation has been passed by the government to instrument and agreement, the Australian lawmaking becomes a part of the domestic law and not the treaty alone. While dealing with this issue, it can also be stated that according to the domestic law of Australia, an order made by a judge of the Superior Court is valid, until and unless the order has been set aside by the court on an appeal (Brennon v Brennon (1953) HCA 28).
In view of the reasons given in 2010 Appeal Judgment, it can be said that Ms. Smootin did not have the standing to bring an appeal against the orders that she wants to challenge in 2012 appeal proceedings. The result is that the Appeal Proceedings of 2012, were considered as an abuse of this process (Downing, 1996).
Treaties ratified by Australian government: It has been shown by research that generally Australia does not take to be bound by a human rights treaty except in cases where it is satisfied that the domestic law of Australia will be in a position to be observed in relation with the provisions of the treaty. However, it has been decided by Australia to be guaranteed by ICESCR and ICCPR. Apart from the other major human rights devices like the agreement on prevention and punishment of the crime of genocide, global convention on the elimination of all forms of racial judgment and agreement on women’s political rights. Although it has been decided by Australia that will be bound by these major global human rights treaties, they are not treated as a part of the domestic law of Australia except the treaties that have been integrated into the domestic law of the country by legislation. Research also reveals that some provisions of the treaty could be a part of the national legislation (Shearer, 1995). An example in this regard can be given of the situation where many terms of the Convention on the Rights of People have been reflected in the domestic law of Australia in the form of Disability Discrimination Act, 1992 (Cth). The legal experts is playing in this context that this principle reveals the information that by approving to become bound by the agreement is the duty of the Executive while exercising its relative power even if it does not have the lawmaking power. According to section 51(xxix) of the Constitution of Australia, the external affairs Authority provides a power to the Commonwealth Parliament to ratified the legislation that reflects the relations of global treaties signed by Australia (Riesenfeld and Abbott (eds), 1994)). It does not mean that by identifying the international treaties, Australia is going to hand over its sovereignty to another international body. The treaties to describe the scope of the actions of the State and the treaties that are ratified by Australia can have an impact on the way in which the government of Australia conducts itself, domestically and internationally (Donaghue, 1995).
Some particular examples of the treaties that have been identified by the government of Australia and that have become a part of the domestic law are as follows.
Convention on the rights of the Child: In November, 1989, the UN Gen. Assembly adopt it this convention (CRC). It is considered as the most extensively identified human rights treaty. It is also revealed by the research that there are only two countries that are not a part of the CRC. This treaty was ratified by Australia in December 1990. As a result of the ratification of this treaty, a duty has been imposed on the government of Australia to ensure that all the children in Australia. Enjoy the privileges that have been mentioned in this treaty. Some of the core ethics behind the Convention on the Rights of the Child are the right of the children who survive and grow, the right of the children to express their views regarding all the matters that influence them and the privilege to enjoy the rights provided by the CRC without any kind of discrimination.
The next such treaty that has been identified by Australia is the convention related with the status of refugees. This treaty was ratified by Australia on 22nd January, 1954 to give effect to the UN convention related with the status of the refugees, 1951. It has been stated by many that now is the time that Australia should again start taking the lead and ask for the review of the 1951 convention and the international protection system that is considered as the keystone. On the basis of this analysis, it is argued by certain persons that the 1951 refugee convention is not proving to be particularly effective in ensuring the welfare of the refugees and also the author of the States. Therefore, Australia is in a position to lead the international efforts for improvements in this regard. Some of the reforms that need to be taken in the opinion of the experts should comprise of the greater accountability of the State due to which the dislocation of people has been caused and the measures that can reduce the need for long distance asylum seeking as well as the steps that need to be taken even order to reduce the weight of the receiving countries.
Another example of such international treaty is the Convention on the Political Rights of Women. A committee was established by the government on 24 November, 2008. This committee was formed with a view to confound the human rights of the woman in Assyria by taking steps for the purpose of becoming a party to the CEDAW Optional Procedure. This will allow the persons residing in Australia to have an international Avenue, where they can seek the redressal in case they believed that the rights provided by CEDAW have been denied to them. Therefore, when the government of Australia agreed to the Optional Protocol, a bold statement has been made that it is against the discrimination against women in any form, and also revealed the seriousness of the government of Australia in ensuring gender fairness.
On the basis of the above-mentioned discussion, it can be said that an international treaty that has identified by the government of Australia only becomes a part of the domestic law if it has been integrated into domestic law by the government. In this regard, certain examples of international treaties rectified by the government of Australia have also been mentioned.
Are there any objections to the ICJ’s jurisdiction that State Z may be able to raise?
In this part of the assignment, the issue is if State Z can raise any objections against the jurisdiction of ICJ? Under the law, ICJ can deal with two types of cases. The first are the legal disputes among the states that have been presented to the ICJ and the second is the request for advisory opinion made to the court regarding the legal questions that have been submitted by the organs of UN or its specialized agencies (Shihata, 1965). These are known as the advisory proceedings while the first type of cases is known as contentious cases. In case of contentious cases, only the States (the states that are the members of the UN or other states that have become party to the statute of international Court of Justice or the states that have accepted the jurisdiction of the ICJ under certain conditions) can become parties to the contentious cases (Reisman, 1966). In this regard, the ICJ is to begin to deal with the dispute only if the court’s jurisdiction is accepted by the states concerned in one of the below mentioned ways:-
By creating a special agreement, according to which the dispute should be referred to the ICJ;
As a result of a jurisdiction clause, typically when the states are a party to a treaty, which contains a provision that in case of a dispute between the states one of the states may refer the dispute to the ICJ;
As a result of the mutual impact of the declarations of the States under the statute according to which each state accepts the ICJ’s jurisdiction as compulsory in case of a disagreement with other state. That may arise after making such a declaration. However, in case of several such declarations, which are required to be placed with the Secretary Gen. of the UN, there has reservations that exclude certain types of disputes.
It needs to be noted that the states do not have permanent representatives ascribed to the ICJ. Normally they communicate with the registrar through the representative of the Minister for foreign affairs or the. Ambassadors appointed in Netherlands. In case the states are a party to a case that has come to the court, the states are represented by an agent. A similar role is played by the agent, and it has the same rights and obligations which are present in case of the solicitor in context of a national court (Rosenne, 1983). But in the present case, we are dealing with international relations. Therefore, the agent also heads the special diplomatic mission, which has the powers to commit a sovereign state. The agent receives communication from the Registrar of the ICJ related with the case and in the same way, the agent also forwards all correspondence and pleadings to the Registrar.
The law provides that proceedings can be instituted in the ICJ in one of the following two methods:-
Through the notification of a special agreement: In this case, a bilateral nature of document is present. It can be lodged with the ICJ by either of the States that is a party to the proceedings or by both the states. A special agreement is required to reveal the subject matter of the dispute and the parties to the dispute. As there is neither an applicant state nor the respondent, in the publications of the court, the names of the states are separated by an oblique stroke that is mentioned at the end of the case’s official title.
By an application: on the other hand, this application is of unilateral nature. It is submitted by the applicant state against the respondent. The purpose of this application is to communicate to the letter State and the rules of ICJ prescribe stricter requirements in case of contents of the application. Apart from the name of the party against whom the claim has been initiated and the subject matter of the dispute, the applicant state is also required to briefly reveal the basis of the claim which can be a treaty or the declaration regarding the acceptance of compulsory jurisdiction, and also briefly mentioned the facts and the grounds of the blame. After the official title of the case, the names of the parties are separated by the abbreviation v (versus).
It needs to be mentioned at this point that while exercising its jurisdiction in litigious cases, the ICJ is required to make a decision on the disputes of the legal nature, according to the provisions of international law, that have been submitted before the ICJ by the states. In this context, an global legal dispute can be described as a disagreement related with a question of law or a question of fact or conflict of legal views or interests. It is significant to mention at this point that only states can apply to and appeared before the ICJ. The result is that international organizations, private persons and other collectivities are not allowed by the law to institute in the proceedings before the ICJ. The conditions for access by the states to the ICJ have been mentioned in article 35 of the statute. In paragraph 1 of article 35, it has been mentioned that the state parties to the statute can bring a dispute to the ICJ. Similarly, the purpose behind paragraph 2 is to regulate access to the Court by the states that are not a party to the statute. In case of such states, the conditions of access, subject to the special provisions that may be present in the treaties in force, have to be decided by the Security Council, along with the proviso that in no case, these conditions shall place the parties in any unequal position before the court. Therefore the law provides that the ICJ can deal with the dispute only when the jurisdiction of the court has been recognized by the states concerned. Therefore, no state can become a party to the proceedings before the court unless such a state has given its consent to do so in some manner.
While exercising the contentious jurisdiction that has been conferred on the International Court of Justice, the court is required to decide, by applying the principles of international law, the disputes that are of a legal nature and that have been presented before the Court by the States. In this context, an international legal dispute can be described as a disagreement related with the question of law or fact, conflict or a batch of legal views or interest. However it is worth mentioning at this point that only States can apply and appear before the International Court of Justice. As a result, international organizations and private persons are not allowed to institute proceedings before the International Court of Justice. According to article 35 of the Statute, the conditions of access for the States to the International Court of Justice have been defined. In the first paragraph of this Article, it has been mentioned that the States that are the parties to the Statute are allowed to do so. The intention behind this second paragraph is to regulate the access of the States to the ICJ that are not parties to the Statute. However it needs to be noted that the conditions of access to the ICJ by these States are subject to the provisions that are present in the treaties in force at the date of entry into force of the Statute, that has to be decided by the Security Council, along with the proviso that in no case, these conditions shall place the parties in a position of inequality before the ICJ. In this way, the Court can only deal with a dispute when the jurisdiction of the court has been recognized by the States concerned. Therefore, does it can become a party to the proceedings taking place before the Court unless such a State has consented in some manner thereto.
Under the circumstances, it can be clearly stated that only the states can appear before the ICJ in contentious cases. This basically means that at present there are 192 member states of the United Nations. On the other hand, the ICJ does not have the jurisdiction to give the allegations that have been made before it by individuals, corporations, nongovernmental organizations or other private entities. As a result, the ICJ cannot provide legal counseling or help to these parties while they are dealing with state authorities. However, the law provides that it is available to a state to take up the case of any of its nationals or to invoke the wrongs against another state, which are claimed by its nationals to have been suffered at the hands of the other state. In such a case, the dispute becomes a dispute between the two states.
Therefore in the present case, Z State may raise an objection that Ecks company is not a national of state X due to reason that the headquarters, operating plant, as well as most of its shareholders and employees are in state Y. As a result, state X cannot raise the dispute regarding the wrongs suffered by Ecks Company at the hands of state Z.
References
Glen Cranwell, (2001) “Treaties and Australian Law – Administrative Discretions, Statutes and the Common Law”, 1 Queensland University of Technology Law and Justice Journal 49
Ivan Shearer, (1995) ‘The growing impact of international law on Australian domestic law – implications for the procedures of ratification and parliamentary scrutiny’, 69 Australian Law Journal 404.
Reisman, W. M. 1966, “Revision of West South Africa Cases – An Analysis of the Grounds of Nullity in the Decision of 18 July 1966 and Methods of Revision”, The Virginia Journal of International Law, Vol. 7, No. 1, 4.
Rosenne, S. 1983, Procedure in the International Court. A Commentary on the 1978 Rules of the International Court of Justice, 232
Shihata, I. 1965, The power of the International Court to determine its own jurisdiction: competence de la competence, 41-42
Stefan Riesenfeld and Frederick Abbott (eds), (1994) Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study
Stephen Donaghue, (1995) ‘Balancing Sovereignty and International Law: The Domestic Impact of International Law in Australia’, 17 Adelaide Law Review 213, 241
Susan Downing, (1996) Treaty-Making Options For Australia, Parliamentary Research Service, Current Issues Brief No 17, 4-10
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