Transcript Document

Australia’s Global Links
Chapter 6
Useful programs
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• Australia as a Global Citizen
• International law and Global Governance
International Law = system of rules
governing relationship between
sovereign nations
Treaty = official agreement between
nations (bilateral) or nations and UN
(multilateral conventions)
Treaties are bilateral and conventions are multilateral
International Law and the Constitution
There are only two references to
international law in the
Constitution:
• S51 (29) external affairs power
• S75 (1) High Court has jurisdiction over “all matters arising
under a treaty”
High Court cases include:
• Tasmanian Dam (Franklin River)
• Mabo v State of Queensland
The reasons for signing international treaties
• Trade reasons (globalisation) – e.g. China, Japan
• Security and defence issues
• Environmental concerns (whaling)
• Human rights and equality (children, racial)
• Where a problem cannot be adequately addressed by a
country acting alone (for example, in relation to ozone
depletion, global warming or the depletion of migratory fish
stocks)
International treaties – protocols or covenants
• Bilateral treaties
• Two nations
• Specific issues
• Decided between themselves without UN influence
• Multilateral conventions
• Three or more nations
• Most commonly with other members of the UN
• Usually in areas such as
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Human rights
Environment
World trade
Non-proliferation of weapons
https://www.youtube.com/watch?v=QoIafzc0k74
How does a Treaty become a domestic law?
• Executive signs a treaty under s61 = ratification
• Signing a treaty does not give effect to domestic law
(but might give a limited expectation of such a right –
Teoh case – intention to incorporate into domestic
Australian law))
• Parliament can then legislate on this treaty under
s51(29) = incorporation
• The Bill is debated through parliament as per
bicameral process and subject to scrutiny
1996 reforms: greater transparency and
accountability
• Must be tabled in parliament for 15 days first (20 for major) to allow
for scrutiny
• National Interest Analysis required which outlines legal obligations
and benefits to the community
• Joint Standing Committee on Treaties (JSCOT) was established
• Treaties Council established (PM and Premiers) was established
• The Australian Treaties Library was established on the internet
Check out the Australian Treaties database – Dept. of Foreign Affairs and Trade
http://www.dfat.gov.au/treaties/index.html
Treaty making process
• Page 122
• Questions 1 – 3 page 123
The High Court of Australia and international
law
• The High Court’s main role in its original jurisdiction is to decide two
legal issues:
1. Is the Commonwealth Parliament using a valid power in the
Constitution to incorporate international law into Australian law?
2. Does the treaty have the international obligation in it that the
enabling Act purports it to have?
Sovereignty and international law
Protecting Australia’s boarders
• Page 120 – 121
• Questions 1 - 3
Commonwealth of Nations
• Membership based on allegiance to the British Crown
• Half of the members are republics. Customary to resign and re-apply
• Commonwealth Heads of Government Meeting (CHOGM) – forum for
leaders to discuss international issues
• Share links – eg Commonwealth Games
Structure of the United Nations
• The General Assembly:
• Consists of all the member states
• Meets every September in New York
• Security Council:
• 15 Members – 5 permanent
• Maintain international piece and security
• The Economic and Social Council (ECOSOC)
• 54 members elected from the General Assembly for a four year term
• Promotes the economic and social fields of the UN
Structure of the United Nations
• The Trusteeship Council
• No longer active as all Trust Territories under UN supervision have all attained
self-government
• International Court of Justice
• The Secretariat
• Performs administrative tasks for the UN under the leadership of the
Secretary-General
The United Nations
https://www.youtube.com/watch?v=Ew_3f-o4pVY
Structure of the United Nations
Non-human rights multilateral conventions
• Australia is a signatory to many conventions
• Conventions that are not based on human rights
• International Civil Aviation Organisation(ICAO)
• World Health Organisation (WHO)
WHO helps partners provide Ebola care
https://www.youtube.com/watch?v=v3dlBn8fJho
Human rights and multilateral conventions
• International human rights framework – preservation of human rights
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General human rights discussed at the General Assembly
Specific committees draft treaty
General Assembly endorses the treaty
Member-states sign the treaty
Human rights treaty committee is created to monitor compliance and review
complaints
• Committee reports to ECOSOC and ultimately to the General Assembly
• International court of Justice can hear cases regarding breaches of basic human
rights specified in the treaty
• Member states which sign the treaty are expected to:
• Ratify the treaty in domestic law
• Report regularly to the appropriate committee
Human rights and multilateral conventions
• Australia is signatory to six main human rights conventions
• Australia has not met its obligations in relation to all of these treaties
• International Covenant on Civil an Political Rights (ICCPR) – Human Rights
(Sexual Conduct) Act 1994 (partial compliance)
• Convention on the Elimination of all Forms of Racial Discrimination (CERD) –
Racial Discrimination Act 1975 (direct compliance)
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT) – no specific legislation, but the Crimes (Torture) Act
regarding torture outside of Australia. Asylum seekers arriving by boat. (no
compliance)
https://www.youtube.com/watch?v=sqsS6k7UXGU
Human rights and multilateral conventions
• Convention of the Elimination of all Forms of Discrimination Against Women
(CEDAW) – Sex Discrimination Act 1984. Too many exceptions or omissions to
genuinely comply (partial compliance)
• Convention on the Rights of the Child (CRC) – no specific legislation but the Family
Law Reform Act 1995 complies with some articles in the treaty (partial
compliance)
• International Covenant on Economic, Social and Cultural Rights – (no compliance)
Australia has been criticized for its non-compliance. But we have common law.
International Court of Justice (ICJ)
• ICJ is the judicial body of the United Nations – sits in The Hague
• Settles international disputes about international law
• e.g. Australia took Japan to the ICJ concerning whaling
• Other examples might involve asylum seekers, disputes over territory
and maritime borders
• ICJ decisions are not binding on Australian courts (they may be
persuasive though)
Australia takes Japan to court over whaling
https://www.youtube.com/watch?v=dlcitVdQX3Y
International Court of Justice (ICJ)
• Functions of the court – two roles, both civil
• Settle disputes in accordance with international law brought by
member states.
• To give advisory opinion on legal questions referred to it by
authorised international organisations and agencies.
• Does not hear cases regarding individual complains
• Both parties must agree about the decision
• Decision is binding but no powers to inforce
International Court of Justice (ICJ)
• Composition of the court
• 15 judges elected for 9 year terms by the General Assembly and the Security
Council
• Elections every three years for one-third of the seats
• Judges do not represent their country, judge in accordance with international
law
• Working of the Court
• Page 132
• Relationship with Australian courts
• Not binding on Australian courts, but are persuasive
• Often have no direct relevance to Australian law
https://www.youtube.com/watch?v=_dARtYCvM4I
International Criminal Court (ICC)
• Established under the UN’s Rome Statute in 1998
• Federal parliament passed the International Criminal Court
(Consequential Amendments) Act 2002 to exercise the principle of
“complementarity”
• This means anything that the ICC has jurisdiction to hear (such as
genocide cases), Australian courts will also have jurisdiction.
https://www.youtube.com/watch?v=vbhmASsYdv8
What's next for the International Criminal Court? (4.43 mins)
International Criminal Court (ICC)
• Page 133 – 136
• Questions 1 – 7 page 136