The value of law related to international human rights lies in whether and upto what extent these laws are inherited into domestic law of the country. There are number of UN human rights treaties which are ratified by the Australia, and this ratification makes the Australia accountable towards the international community for implementation and fulfills the obligations stated by treaty. Like many other countries, law of Australia does not recognize the treaties as source of law unless provisions of that treaty specifically introduced through legislation into Australian law.
Every country has own procedure of law for the purpose of implementing the obligations sated in international treaties through their domestic law. There are some cases, in which constitution of the country specifies that international treaties form part of the land such as monist states. In other countries like Australia it is necessary to pass legislation for the purpose of reflecting the provisions of treaty effect the domestic law, and it is known as act of transformation, and it is applicable in case of dualist states.
In Australia, it is necessary to pass specific legislation which implements the provisions of treaty in country, and if no such legislation is passed then such treaty does not create any rights in domestic law. However, there are some situations in which provision of treaty are applicable even without enabling legislation. Therefore, international treaties and law influence the ways of Court for applying Australian laws (Parliament of Australia, n.d.).
Australia is organized as a federation which means that country has central government, Federal government, the commonwealth government, and it also includes state and territory government. This country also has local government for efficient working, and both commonwealth and federal bear’s responsibility related to protecting and respecting human rights in Australia. The main purpose of these governments is to ensure that other levels of government are fulfilling their obligations related to human rights, and it also includes corporations and individuals which are considered as non-state actors.
Therefore, in federal legal system transformation of international law into domestic law can cause issues, and constitution of Australia gives power parliament to make laws related to specific subjects and the other things are left for the states. These things are seems simple but in actual dividing the responsibilities between parliament and state are not clear. This can be understand with the help of the example, section 51(xxix) of the Australian Constitution gives external affair power to the federal government which interpreted by High Court as power to enter into international treaties on behalf of Australia, and federal government also has power to pass domestic legislation for the implementation of international treaty in the country. But for the purpose of fully implementation of international treaty it is necessary to introduce or amend some laws in particular areas so that they can traditionally inherited under state or territory jurisdiction.
There are some treaties which become the part of the domestic law of Australia such as The Australia, New Zealand and United States Security Treaty, or ANZUS Treaty, it is an agreement which was signed in 1951 for the purpose of protecting the security of the Pacific (Office of the historian, n.d.).
Usually rights under ICCPR are almost protected in every country in the world, and provisions of this treaty are implemented by the domestic guarantee of rights, and normally it is known as the bills of rights. For example, numbers of guarantee rights are appeared in the constitution of South Africa cover civil rights, political rights, social rights, and economic rights which are recognized in ICESCR. Working at Federal level, Australia is the only democratic country in the world which does not pass any law which directly implements the provisions of ICCPR. Some of the treaty commitments related to human rights has been implemented by Australia, and such commitments directly impacts the daily lives. This can be understand through example such as Commonwealth Racial Discrimination Act 1975 directly implements the Convention on the Elimination of All Forms of Racial Discrimination into Australian law, and the Commonwealth Sex Discrimination Act 1984 directly implements some rights related to women stated in the Convention on the Elimination of All Forms of Discrimination Against Women. Therefore, it is clear that Australia is slower as compared to other countries for the purpose of implementing provisions of international treaties related to human rights. There is one example which makes the picture clearer such as Australia does not introduce any national legislation for implementing their obligations stated under the Convention on the Rights of the Child. Australia make announcement that they protect the rights under ICESCR by included those rights under existing Australian Law which is considered as claim disputed by some commentators.
It must be noted that conflicts arise at domestic level cannot be used as an excuse againstthe failure of implementing obligations under international treaty. As per the Article 27 of the Vienna Convention on the Law of Treaties of 1969, state cannot use any answer related to its law and deficiency for the purpose of answering the claim made for breaching its obligations under international law. Therefore, it is necessary that all governments in Australia actively participated in protecting the human rights of the Citizens, but ultimately only federal government is accountable towards the international community for any breach. It must be noted that ultimate liability towards the international community is lie on the Federal government, but all the governments in Australia play the important role in human rights protection (Austlii, n.d.).
In case Samootin v Shea [2012] NSWCA 378, Campbell JA applied the law for the purpose of stating that whether the initiation of this proceeding is considered as an abuse of process in Australian domestic law. In this case, Judge stated that those international treaties which have been ratified by the government of Australia does not become the part of the domestic law of Australia. In case Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449 at 462, 471 and 477, court stated that these international treaties does not operate as a direct source in case of individual rights and obligations under that law. If government make any law for the implementation of treaty than it is considered as Australian legislation which become the part of the domestic law but it not become the treaty itself (Austlii, n.d.).
In case Brennan v Brennan [1953] HCA 28; (1953) 89 CLR 129 at 134,Williams ACJ, Webb and KittoJJ stated that as per the domestic law of Australia , order made by the judge of superior court is valid until it is set aside by appeal. Reasons stated in Appeal judgment made in 2010, Ms. Smootin does not have standing to challengeon appeal that order which she seeks to challenge in the Appeal of 2012 proceedings. Therefore, Appeal made in 2012 is considered as an abuse of process (Piets, n.d.).
Treaties and development of common law: there are number of issues which have been recognized by governments and other authorities, and the recent issue is implementation of international treaties which includes the recent acknowledgement that international conventions which are ratified by Australia especially those which are considered as universal fundamental rightsmust be used by the domestic courts in Australia as aguide for the purpose of development of common law. Early recognition of international treaty within the High Court of Australia for the purpose of influencing Australian law is found in the judgments of Murphy J. This can be understand with the help of example that is case lawsDugan v Mirror Newspapers Ltd, 20 McInnis v R21 and Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs, in these cases Murphy address international human rights which had direct influence on common law. In these three examples, murphy stated the influence of international treaty on common law in those areas in which common law doctrine is applicable but this approach is accepted by majority. It must be noted that in recent years, judicial functions are accepting the approach of international law and international treaty. Brief mention may be made in number of cases in which international treaties are considered by judges while discussing the common law, but role played by international conventions was minimum. The issue related to recognition of international human rights from domestic law is raised by the Kirby J. However, it is only Mabocase law in which concept that international treaties are considered as important part of the development of common law and this concept was truly accepted by High Court.
In case, Mabo v Queensland (No 2), High Court stated that common law of Australia recognizes the native title of the Australian aboriginals. In case such title had not been extinguished then aboriginal peoples were inherited to their traditional lands as per their laws and traditions. This decision of court overturned the doctrine of terra nullius stated by common law, which treated Australian territory without owners and which can be acquired through occupation during the time of European settlement. Brennan J filed appeal to international standards related to civil and political rights which is the one reason for reconsidering the refusal made in history for recognizing the rights and interest in land of indigenous inhabitants of settled colonies.
Therefore, implementation of international conventions in common law development is now very well accepted by number of Courts, but there is no clarification of the circumstances in which such treaty will be used. In other words, it is not clear whether international treaties can justify any change in the common law, as opposed to justifying the resolution of ambiguity and uncertainty. After considering all the facts it is clear that treaties are used by High Court for the purpose of deciding the situation when they can replace the common law. While filling the gap between common law and introducing new provisions in common law are issues at this time and approval from Courts are still pending. Everything is clearly depend on whether judges can promote the concept of the common law which also includes the implementation of international treaties into domestic law for the purpose of introducing new laws (Cranwell, 2001).
The International Court of Justice (ICJ) is the principal judicial organ of United States (UN), and the international Court is the only Court which has jurisdiction on all the matters related to disputes between the UN members, in other world all the states of the World. ICJ is considered as important from both political and scholar view, and there are number of disputes at international level which are solved by the ICJ’s Judgments. There are number of cases in which states do not complied with the judgments of ICJ or they are fail to acknowledge the jurisdiction of ICJ. In international legal system, ICJ remains potent symbol of possibilities. For the purpose of its defenders ICJ plays leading role in managing the international legal system by resolving the disputes between the members in principal manner. Usually, politics and diplomats who lost their cases criticize the working of ICJ, and stated that judgments of ICJ are politically motivated. In the words of Jeane Kirkpatric, ICJ is the body which is semi-legal, semi-juridical, and semi-political which is accepted by states sometimes and sometimes don’t (Posner & Figueiredo, 2005).
For the purpose of becoming the party to a contentious case before the Court, it is necessary that state must have access to the Court and they accept its jurisdiction. All the states which are parties to the Statute of the Court (Article 35(1) of the Statute of the Court) have access to the Court, and all members of the United Nations automatically become the party of the Statute of the Court under Article 93(1) of the UN Charter, but some exceptions are also there which state that any state which is not the UN member can also become the Party to the Statute of the Court Article 93(2) of the UN Charter. Therefore, ICJ is also open for those states which are not the party of the Statute of the Court that is Article 35(2). But for this purpose conditions are stated by the Security Council (ICJ, n.d.; UN org, n.d.).
Jurisdiction of International Court of justice is based on the consent of the states to which it is open. In some particular cases, Court has jurisdiction to settle the dispute if parties give their consent. This consent is given by the means of unilateral declarations, which is also known as ’optional clause’ declarations in treaties or by the way of special agreements (ICJ, n.d.).
The compulsory Jurisdiction of ICJ is not compulsory in actual, and the jurisdiction of the Court is clearly based on the consent of the parties. States which are the parties of the dispute have option to accept or not to accept the jurisdiction of the Court and they can do it as per their terms and conditions they determine themselves. However, if once state given their consent, and when dispute is conducted under the scope of that consent than in such case state is bound by the Jurisdiction of the Court. This legal obligation is considered as compulsory (Alexandrov, 2006; Mccluret, 1960).
Article 79 of the Rules of the Court governs the decision related to preliminary objections. Preliminary objections are considered as objections which require that decision before the Court proceed for the purpose of considering the disputes on its merits. As the Court itself stated that main aim of preliminary objection is not only to avoid the decision but also the discussion of merits. There are some cases if jurisdictions and merits are concerned by issues on the basis of facts then it is not possible to strictly separate it, the Court has power to join the preliminary objections on the basis of the merits of the case (Lalive, n.d.).
Preliminary objections is considered as an issue only when one state party accepting the optional jurisdiction of the Court, and filed suit against the other party on the basis of the declaration state stated under Article 36(2) of the Statute. The bases include an objection related to capacity of a state for presenting their claim before the Court, objection related to jurisdiction of the Court for announcing the merits of the case because of an applicable reservation, and also it includes the objection on the basis of the ground that matter has already been decided, and lastly such matter is pending in another forum between the same parties. Such objection is also raised on the ground that such instrument conferring jurisdiction is not in force or that instrument is not applicable at that time when such dispute arose or if such dispute is genially fall under the jurisdiction of domestic law or if such matter is not fall under the jurisdiction of international law.
Parties also raised objection on the basis of ground that diplomatic means of settlement have not been exhausted or if such issue is of political nature or if such matter is under the consideration before the Security Council of the United Nations. Objections which are not exhausted by local remedies have been raised in cases which are brought before the Court by parties related to infringement of the rights of their nationals, because courts does not accepted any jurisdiction on the ground that such issues are involved political factors. Court also rejects that argument which states that Court should not entertain any matter which is pending before and considered by Security Council of the United Nations (Llamzon, 2008).
On 11th June 1998, the International Court of justice stated that court has jurisdiction in the case brought by Cameroon against the Nigeria in 1994. This Court has power to settle the disputes between the member states. Therefore, ICJ consider the application made by Cameroon on 29th March 1994, and this application was amended on 6th June 1994 by the request made to Court for the purpose of determining the question of sovereignty related to Bakassi Peninsula which was occupied by Nigerian armed forces and islands in Lake Chad, and also for the purpose of specifying the course of the land and maritime boundary between Cameroon and Nigeria. The Court includes 15 judges which are appointed by the UN General Assembly and Security Council for the term of 9 years. It also includes two judges ad hoc which was specially appointed for the case of Cameroon and Nigeria.
On December 13, 1995, eight preliminary objections are filed by Nigeria which challenges the jurisdiction of the Court ad admissibility of the application of Cameroon. As per the rules of the Court, if any state filed preliminary objection then it will automatically consider as suspension of the main proceedings and it is necessary that Court must rule on such objections by judgment before initiating the proceedings of the case (Bekker, 1998).
In the present case, Z has number of objections which it can raise on the jurisdiction of ICJ such as lack of appropriate nationality. As per this objection any state of dual national may file a suit o behalf of their national but the link between sponsoring state and national must be genuine. In this case there are some formal links such as Ecks was incorporated in State X, but genuine links are no present in this case such as headquarters of Ecks, operating plant, maximum number of employees and maximum shareholders of company are in state Y. therefore, there is no genuine link between the national and the state.
There is one more objection which can be stated by state Z and as per this objection State X failed to exhaust all remedies which are available at domestic or local level such as Ecks never appeared to file appeal against the decision made by the Court of state Z.
References:
Piets. International treaties do not as such form part of Australian domestic law. Available at: https://www.piets.com.au/wcms/index.php?page=international-treaties-do-not-as-such-form-part-of-australian-domestic-law. Accessed on 10th April 2017.
Brennan v Brennan [1953] HCA 28; (1953) 89 CLR 129 at 134.
Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449 at 462, 471 and 477.
Samootin v Shea [2012] NSWCA 378.
Parliament of Australia. Treaty-Making Options For Australia. Available at: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/cib9596/96cib17. Accessed on 11th April 2017.
Cranwell, G. (2001). Treaties and Australian Law —Administrative Discretions, Statutesand the Common Law. Available at: file:///C:/Users/USER/Downloads/62-1-122-1-10-20120619.pdf. Accessed on 11th April 2017.
Austlii. Samootin v Shea [2012] NSWCA 378 (20 November 2012). Available at: https://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/378.html. Accessed on 11th April 2017.
Office of the historian. The Australia, New Zealand and United States Security Treaty, or ANZUS Treaty. Available at: https://history.state.gov/milestones/1945-1952/anzus. Accessed on 11th April 2017.
Austlii. The Operation of International Human Rights Law in Australia. Available at: https://www3.austlii.edu.au/au/other/liac/hot_topic/hottopic/2008/2/4.html. Accessed on 11th April 2017.
Posner, A. E. & Figueiredo, P. F. (2005). Is the International Court of Justice Biased? The Journal of Legal Studies, Volume 34 (2), Pp-599-600.
ICJ. How the Court works. Available at: https://www.icj-cij.org/court/index.php?p1=1&p2=6. Accessed on 11th April 2017.
ICJ. Contentious Jurisdiction. Available at: https://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1. Accessed on 11th April 2017.
Alexandrov, A. S. (2006). The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It. Chinese Journal of International Law, Volume 5( 1), Pp- 29-38.
Mccluret, W. (1960). World rule of law: the jurisdiction of the international court of justice. Available at: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1698&context=dlj. Accessed on 11th April 2017.
UN ORG. Handbook on accepting the jurisdiction of the International Court of Justice. Available at: https://legal.un.org/avl/pdf/rs/other_resources/Manual%20sobre%20la%20aceptacion%20jurisdiccion%20CIJ-ingles.pdf. Accessed on 11th April 2017.
Lalive, P. Some objections to Jurisdiction in Investor – State Arbitration. Available at: https://www.arbitration-icca.org/media/4/91763475627521/media012319105289900objection_jurisdiction_investor_state_arbitration.pdf. Accessed on 11th April 2017.
UN conference. Dispute Settlement. Available at: https://unctad.org/en/docs/edmmisc232add19_en.pdf. Accessed on 11th April 2017.
Llamzon, P. A. (2008). Jurisdiction and Compliance in Recent Decisions of the International Court of Justice. The European Journal of International Law, Vol. 18(5).
Bekker, F. H. P. (1998). International Court of Justice Upholds its Jurisdiction in Case Brought by Cameroon Against Nigeria. The American Society of International Law, Volume 3(6).
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