As illustrated in Samootin v Shea [2012] NSWCA 378, since 2001, Ms Samootin had engaged various courts seeking right to appeal and challenge various rights arising from a sale of property she and her former husband, Mr Shea, had engaged in. She and husband had sold a house in Mona Vale and the purchase price received from the sale had been used to purchase other properties in Beacon Hill. Some years after the sale, however, Ms Samootin was declared bankrupt. A petition to the court in 2010 (Samootin v Shea, 2010), saw Ms Samootin seek leave to appeal, or an extension of time to appeal, against previous judgments entered against her.
The 2010 court held that she lacked standing to bring any action and declined to grant the leave on grounds of abuse of process. In her submissions as to why her applications should not be dismissed on grounds of process, the plaintiff Ms Samootin relied on various treaties (CEDAW, 1979) ratified by the Australian Government. In response the court held that ratification of a treaty by the Australian Government did not necessarily serve to make it domestic law; legislation has to be enacted that embodies the provisions of the treaty in order to make it domestic law (Chow Hung Ching v R, 1948). This paper aims to discuss the implications of this statement by analysing the treaty making process in Australia; additionally, it will look into treaties that have been ratified and enacted into Australian domestic law.
Treaties are a source of international law; they go by various names Conventions, International Agreements, Pacts, Charters, Covenants, Declarations among others (Shaw, 2014, pp. 93-94). They are generally an agreement between states that binds them to act or abstain from acting in a particular manner or to establish certain relations among them. However, before a treaty can have any binding effect on a party, the party has to show consent or approval to be bound. In international law, ratification is the formal act by a state to give and express its acceptance of the treaty terms; it is expressed by the executive organ of the state (Doeker, 2012, p. 129). The objective of the ratification process is to express the willingness to be bound. This process consists of; the execution of a ratification instrument, exchange of ratification instruments or lodging the instrument with the depositary (Aust, 2007, p. 103).
In some states like Australia, legislation is required to give the treaty binding force under domestic law. There are generally two theories with regard to the relationship between international and domestic law. International law is comprised of the rules and principles, embodied in treaties, that govern the relationships between sovereign states (LLI, n.d.). Domestic law, on the other hand, is the law governing the internal affairs of a state. States can either take a dualist or monist approach in determining the relationship between international law and their domestic policies (Muller, 2013). Dualism provides a separatist approach to this relationship; according to this theory, international and national law are characteristically distinct and independent of each other (Crawford, 2012, p. 48).
Neither of the two can affect the rules of the other, but the force of international law can only come into effect through the enactment of domestic law permitting it. Monism, on the other hand, posits that domestic law and international law exist in the same sphere and as such the ratification of international law automatically gives it force in the domestic realm. Australia has adopted a dualistic approach to the interpretation of the relationship between international and domestic law and as such a ratified treaty does not automatically become part of Australian law, it has to be incorporated through legislation (Prest & Anleu, 2004, p. 186).
In Chung Chi Cheung v The King [1939] AC 160, UK courts were met with the challenge of how to interpret international customary law whose principles have not been incorporated into national law. Lord Atkin held that these rules and principles would have force in so far as they were not inconsistent with the provisions of domestic legislation; this is generally the position in Australia.
In 1948, an appeal from the Supreme Court of Papua New Guinea was brought before the High Court of Australia. The appellants had been convicted of causing bodily harm and unlawfully detaining a native against his will. By law, any appeals had to be by leave of the High Court. The appellants claimed that the Supreme Court lacked jurisdiction to hear the matter as they were members of the armed forces of a friendly foreign power. In determining this case, guided by the findings in Chung Chi Cheung v The King [1939], the court upheld that international law did not form part of Australian Law, however universally recognised international law principles could be recognised and applied in Australian Courts (Chow Hung Ching v R, 1948).
Similarly, in Nulyarimma v Thompson [1999] 96 FCR 153, two cases on the grounds of genocide were brought before the Australian Federal Court. In the first case, the appellants challenged a ten point plan proposed by the government to change the operation of the native title in Australia. The appellants believed that the application of this plan resulted in genocide and would restrict and infringe various rights of indigenous Australians. In the second case, the Minister of Foreign Affairs and the Minister of Environment allowed a mining company to mine instead of pursuing the World Heritage Listing of Lake Eyre. This refusal was challenged as amounting to genocide.
Although an offence under international law, Australian domestic law did not recognise genocide as an offence and as such the court held that customary international law did not form part of Australian law. However in a dissenting opinion, Merkel J held that jus cogens made customary international law recognisable as domestic law; nevertheless, the claim failed. These cases illustrated the position that, where legislation has not been enacted to incorporate a treaty into domestic law, the treaty will not influence courts decisions. However, as evinced, some courts recognise certain common principles of international customary law regardless of enactment.
Following the decision in Nulyarimma v Thompson (1999), parliament enacted the International Criminal Court Act 2002, which recognises genocide as a crime. As such, should a claim on grounds of genocide arise, claimants are protected by this piece of statute which embodies the principles of the Convention on the Prevention and Punishment of the Crime of Genocide 1951, which had earlier been ratified by Australia in 1949 but had no legal force due to the dualistic approach discussed above. Similarly, empowered by section 51 of the Australian Constitution, Parliament has enacted various legislation so as to give domestic force to various international treaties such as; the Convention on the Rights of People with Disabilities 2006 through the Disability Discrimination Act 1992 (Cth), the Racial Discrimination Act 1975 (Cth) which embodies the International Convention on the Elimination of All Forms of Racial Discrimination 1965.
The Racial Discrimination Act 1975 was relied on in the landmark case of Mabo v Queensland (No 2) [1992] 175 CLR. In this case, the native title doctrine was incorporated into Australian law with the overturning of terra nullius; the operation of this doctrine was found to be a form of discrimination under the Race and Discrimination Act. Overturning the doctrine recognised the rights of Meriam people and all indigenous Australians to their land where such title had not been legally extinguished. The enactment of this Act sees to it that people’s rights are protected in areas of employment, accommodation, ownership pf land, provisions of goods and services, access to public facilitates among others. These are but a few of the Acts that give effect to international treaties within Australian domestic law.
Conclusion
In conclusion, it is evident that Australia adheres to a dualistic interpretation of the relationship between international and domestic law; mere ratification does not give force to international instruments, they must be enacted by legislation. Although there are instances where courts will recognise international customary principles as binding, the orthodox standing is that, if not enacted through legislation, treaties have no force. As aforementioned Australia has ratified many treaties such as the CEDAW treaty mentioned in Samootin v Shea (2012), however without enactment as evidenced in this and many other cases, litigants cannot rely on the provisions and protections of these treaties; attempts to do so will be dismissed under grounds of lack of jurisdiction or abuse of process. Campell J A was, therefore, right in upholding that ratified international treaty do not form part of Australian law; they are subject to legislation by parliament. Only after legislation has been enacted recognising the provisions of the treaty can litigants and courts alike rely on these provisions.
The International Court of Justice is a judicial body established to determine cases guided by international law (Shaw, 2014, p. 1065). It does not create law, it merely states and interprets it. In determining its jurisdiction, the court is to be guided by three criteria; consistency with previous cases with regard to judicial reasoning, secondly certitude and finally the implications of the decision to future cases (Serbia and Montenegro v UK, 2004, pp. 1353-54). The Statute of the International Court of Justice also provides that states may recognise the compulsory jurisdiction of the court by way of declaration. This declaration may be unconditional or otherwise with regard to the interpretation of treaties, questions in law, international obligations or reparation for breach of these obligations (International Court of Justice, 2016). As such, where a state recognises this jurisdiction it is bound by it in matters that are outlined in the declaration. In the case study provided, State Z and State X, which are the two states mentioned as parties to the suit, have expressly recognised the jurisdiction of the International Court of Justice and are such bound by it to the extent in which they recognise its authority. However, the following discourse will highlight objections that State Z can raise in defence against the claims State X seeks to bring on behalf of Ecks Co.
Lack of nationality is an objection that challenges the authority of the litigating party to bring a claim before the court. The position in international law is that only states can bring actions before international courts or tribunals (August, et al., 2013, p. 76). As such where an individual or a company has a claim against a state, they petition their country or state to bring the claim on their behalf. However, a state can only bring a claim for its national and not the national of another state; where it is found that the individual or company is from a different state than that used to bring the complaint then the case will be dismissed for lack of nationality.
Where a dual nationality issue arises, the Merge Case (1955), allowed for the state for which the complainant had most links, the master state, to bring the claim on their behalf. As such, in the provided case, Ecks Co cannot bring a complaint before the Court as it lacks standing. State Z can challenge whether State X has master nationality by challenging the linkage between the state and the company. Ecks was merely incorporated in State X, this remains the only link as most of its operations are elsewhere. Based on this, State Z can challenge the jurisdiction of the court to hear the matter on a lack of standing by nationality of State X.
Lack of genuine link arises from lack of nationality; where a party’s claim is being sponsored by a state, as aforementioned, the nationality must be genuine (August, et al., 2013, p. 77). The relationship must be significant so as to give the sponsoring state the authority to represent the party as held in the Nottenbohm Case (1955). In this case, the complainant visited Liechtenstein for a few weeks to gain nationality and later travelled abroad. An attempt to rely on Liechtenstein as a sponsoring state for a claim was dismissed as the relationship was insignificant. On the same grounds, State Z can challenge the jurisdiction of the court to hear the matter based on the fact that the only link between State X and Ecks is the incorporation of the company, all its headquarters and operations are in State Y and therefore a genuine nationality link can only be found in State Y. State X, therefore, lacks a bona fide relationship with the company and cannot bring a suit on its behalf.
Another objection that can be raised against a claim brought before the International Court of Justice is the failure to exhaust locally available remedies. Before an individual or a corporate person can bring a claim to an international forum, it must ensure it has exhausted all locally available avenues for recourse (August, et al., 2013, pp. 77-78). However, where a suitable remedy is unavailable locally then this requirement can be waived. In the Interhandel Case (1959), a Swiss company had spent years in US courts in an attempt to recover assets that had been confiscated during the World War II. The company lost its case at the trial court and subsequent appeals had been denied, it, therefore, saw it best to bring the matter before the International Court of Justice.
However, at this time, the US Supreme Court ordered a new trial, the International Court, therefore, dismissed the case before it as all other avenues had not been exhausted. Similarly, in the case study provided, Ecks Co at first instance failed to present itself before the court during the first hearing to defend itself, a default judgement was therefore entered against it. Subsequently, after the judgment, the company did not make any efforts to appeal the decision or challenge the confiscation of its assets or the denied attempts to set up a new headquarters. State Z can, therefore, challenge the jurisdiction of the International Court to hear this case based on the fact that Ecks made no attempt to utilise possible local remedies.
A defendant in a suit brought before the court can also challenge the jurisdiction to hear the matter while relying on the doctrine of laches; that is, the claimant took too long to bring the issue before the court (August, et al., 2013, p. 83). The doctrine of laches is an equitable remedy that bars a state from bringing a claim due to passage of time (Ibrahim, 1997, p. 647). It aims to rectify the mischief that may be brought about by unreasonably delayed claims. As a component of the doctrine of estoppel, the doctrine estoppes parties whose claims surpass a certain period of time, or a reasonable period of time as prescribed by law from bringing claims before court. It embodies the maxim that equity aims to help those who are vigilant and do not sleep on their rights.
With this in mind, Ecks’ case before court was first presented in 1980, when judgement was passed, the company had the opportunity to appeal. However, for well over a decade, Ecks made no effort to challenge the judgement entered against it, not until recently when it has petitioned State X to bring a claim on its behalf. State Z can counter this claim raising the doctrine of laches as a defence, it would be prejudicial to State Z for State X and Ecks to be allowed to bring this claim so long after judgement was entered, especially seeing as the neither the company nor the state made any previous attempts to challenge the judgement.
International law, as illustrated above also recognises equitable remedies; the International Court of Justice has expressly recognised equity as law. The clean hands doctrine is one of the recognised equitable principles, in essence, he who seeks relief from equity must do so with clean hands. As such, as state or individual who has been found guilty of illegal acts or behaviour can lose the right or legal standing to bring a claim for their rights where such rights are deprived of them due to their illegal conduct (Moloo, 2010, p. 1).
In the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (1986), Nicaragua brought a claim against the US citing that the US had contravened various conventions by recruiting, training, funding, supporting various actions that were considered military and paramilitary against Nicaragua. In its defence, the US stated its acts were in response to an earlier attack by Nicaragua against it. The Judge held that Nicaragua had not brought the claim with clean hands and as such it claim would fail. In the same way, State Z can object to the case brought before the court by State X citing that Ecks cannot lodge a claim through the state as it has no clean hands, the company hired a spy to gather information on State Z’s defence which amounts to espionage. The spy Mr Steven and the Branch Manager are evidence that the offence of espionage holds water and as such Ecks does not have clean hands in this matter.
Conclusion
In conclusion, although State X may have standing to bring a case on behalf of Ecks as a state, State Z can challenge this standing and as such the jurisdiction of the court to hear the matter on various preliminary objections. Firstly, State Z can raise an objection on lack of nationality citing that State X and Ecks Co lack a genuine link, this is because the only relationship they have is the incorporation of the company, the operations and headquarters are all in State Y. Additionally, State Z can object that the Ecks failed to exhaust local remedies as it made no efforts to challenge the judgement in local courts through appeal or other dispute resolution methods. State Z can also rely on the doctrine of laches to challenge the length of time that had passed before Ecks instituted any claims. Finally, State Z can rely on the doctrine of clean hands as Ecks was found guilty of espionage and has therefore not brought a claim in good faith.
Reference List
August, R., Mayer, D. & Bixby, M., 2013. International Business Law: Text Cases and Readings. 6th ed. s.l.:Pearson.
Aust, A., 2007. Modern Treaty Law and Practice. 2nd ed. Cambridge: Cambridge University Press.
Case concerning the military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America) (1986) ICJ 14.
CEDAW, 1979. Convention on the Elimination of All Forms of Discrimination Against Women. New York City: UN General Assembly.
Chow Hung Ching v R (1948) HCA 37.
Chow Hung Ching v R (1948) HCA 37.
Crawford, J., 2012. Brownlie’s Principles of Public International Law. Oxford: OUP.
Doeker, G., 2012. The Treaty-Making Power in the Commonwealth of Australia. s.l.:Martinus Nijhoff.
Ibrahim, A. R., 1997. The Doctrine of Laches in International Law. Virginia Law Review, 83(3), pp. 647-692.
Interhandel Case ( Switzerland v United States of America) (1959) ICJ.
International Court of Justice, 2016. Basis of the Courts Jurisdiction. [Online]
Available at: https://www.icj-cij.org/court/index.php?p1=1&p2=6
[Accessed 14 April 2017].
LLI, n.d. International Law. [Online]
Available at: https://www.law.cornell.edu/wex/international_law
[Accessed 12 April 2017].
Mabo v Queensland (No 2) (1992) 175 CLR 1.
Merge Case Decision No 55 (1955) Reports of International Arbitral Awards.
Moloo, R., 2010. A comment on the clean hands doctrine in international law. SSRN Electronic Journal, pp. 1-10.
Muller, A., 2013. Relationship between national and international law. [Online]
Available at: https://www.uio.no/studier/emner/jus/jus/JUS5540/h13/undervisningsmateriale/nat-int-law_14oct2013.pdf
[Accessed 12 April 2017].
Nottenbohm Case (Leichtenstein v Guatemala) ( 1955) ICJ.
Prest, W. & Anleu, S. R., 2004. Litigation: Past and present. 1st ed. NSW: UNSW Press.
Samootin v Shea (2010) NSWCA 371.
Samootin v Shea (2012) NSWCA 378.
Serbia and Montenegro v UK (2004) ICJ Reports.
Shaw, M., 2014. International Law. s.l.:Cambridge University Press.
Wadjularbinna Nulyarimma & Ors v Phillip Thompson; Buzzacott & Ors v Minister for the Environment (1999) 96 FCR 153.
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