International Law (HSC SSCE Legal Studies): Revision Notes
International Law
Understanding states and sovereignty
What is a state?
A state is an independent entity recognized by other states on an international basis. To qualify as a state, a territory must have:
Requirements for Statehood:
- A defined territory
- A permanent population
- An effective government
- The capacity to enter into international negotiations
Sovereignty refers to a state's authority to make rules for its population and the power to enforce these rules. The term 'state' can mean either a political division within a federation (such as New South Wales or Tasmania) or an autonomous nation-state in an international context.
Domestic law is the law of a state—the laws that apply within a particular country to its own people. A country can make these laws because it is an autonomous (independent) state with sovereignty.
How international law differs from domestic law
International law governs the relationships between states. It serves several important purposes:
- Enables states to participate in trade and commerce
- Provides mechanisms for maintaining peace and security
- Reduces conflict between nations
- Covers fundamental human rights issues
Key differences from domestic law
Enforcement challenges: One major criticism of international law is its lack of enforcement power. Unlike domestic law, where governments can compel compliance, international law relies heavily on countries consenting to cooperate. There are numerous examples of states breaching international law, particularly regarding human rights. For instance, international law could not prevent the genocide in Rwanda during the 1990s, crimes against humanity in Darfur since 2003, or atrocities during the Syrian civil war.
Cultural diversity: International law faces additional challenges because the world comprises diverse cultures with different values. Not all countries agree with all international laws, and states may ignore laws they believe conflict with their national interests.
Global interdependence: Despite these challenges, states are interdependent in many ways. Recognition of this global interdependence creates a world community, which provides motivation for following international law even when enforcement is difficult.
Sources of international law
International law derives from five main sources: customs, declarations, treaties, legal decisions, and legal writings.
Customary international law
Customary international law is not contained in written documents. Instead, it develops from long-established traditions or common practices followed by many states until they are accepted as fair and right by the international community.
Key principle: opinio juris sive necessitatis (shortened to opinio juris) means "opinion that an act is necessary by rule of law." This principle states that for a practice to become customary international law, states must believe that international law requires it—not just that it is a useful practice.
Requirements for customary law:
- Constant and uniform practice by states
- Acceptance that the practice is legally binding (opinio juris)
Example: Customary international law regulating war existed long before The Hague Conventions (1899) and Geneva Conventions (1864, 1906, 1929, 1949) formally outlined rules governing state conduct in conflict, such as the treatment of prisoners of war and civilians.
Criticisms of customary international law:
- Difficult to establish that customary law exists
- Time lag involved in acceptance renders it secondary to treaties
- Getting consensus among the growing number of nations has become problematic
- Modern world changes rapidly and often requires more immediate responses
Important examples: Most laws prohibiting crimes against humanity originated as customary international law, including the condemnation of slavery and genocide.
Case Study: Child Executions and Evolving Customary Law
The prohibition against executing offenders for crimes committed when they were under 18 is an example of evolving customary international law. International treaties such as the International Covenant on Civil and Political Rights (ICCPR) Article 6 and the Convention on the Rights of the Child (CROC) Article 37 explicitly prohibit such executions.
In Roper v Simmons (2005), the US Supreme Court found that executing juvenile offenders violates the Eighth Amendment prohibition on "cruel and unusual punishments." The court noted that standards of decency had evolved and considered international trends in reaching its decision.
Bodies including the Inter-American Commission on Human Rights and Amnesty International believe that excluding child offenders from the death penalty has become a rule of customary international law due to its widespread acceptance.
Declarations
A declaration is a formal statement of a party's position on a particular issue. Importantly, declarations are not legally binding under international law—they clarify positions but do not impose obligations that must be followed.
The Universal Declaration of Human Rights (1948)
Following World War II and the Holocaust, the UN Commission on Human Rights drafted this declaration—the first universal statement on basic human rights principles. Its chief purposes included defining the terms "human rights" and "fundamental freedoms" used in the UN Charter.
In 1948, the UN General Assembly ratified the declaration with 48 countries voting in favor, none against, and only 8 abstaining. While not legally binding itself, the declaration formed the basis for two binding UN human rights covenants:
- International Covenant on Economic, Social and Cultural Rights (ICESCR)
- International Covenant on Civil and Political Rights (ICCPR)
Treaties
Treaties are the most commonly used source of international law. According to the Vienna Convention on the Law of Treaties (1969), a treaty is "an international agreement concluded between states in written form and governed by international law." Treaties are agreements between legal equals and may cover any sphere of international relations.
Types of treaties:
Bilateral treaties: Agreements between two nations.
- Example: The Lombok Treaty (2006) between Indonesia and Australia concerning common security and national security cooperation
Multilateral treaties: Agreements between many states.
- Example: The Charter of the United Nations (1945), which established the UN and its organs and agencies
Strength in numbers: The more states that sign a treaty, the more powerful it becomes. Treaties are used to make specific laws, control conduct and cooperation between and within states, and establish international organisations (such as the International Criminal Court established by the Rome Statute 2002).
Treaty-making process:
- Most treaties result from direct negotiations between states
- Once all parties agree, the treaty is signed
- A document only becomes a treaty if all parties intend to be bound by its provisions at the time of signing
- Treaties become binding when states ratify them—that is, formally confirm their intention to be bound by the treaty's conditions
Implementation varies by country: In some countries like France, ratified treaties automatically become domestic law. Other countries, including Australia, require domestic legislation to implement treaty obligations.
Legal decisions
The International Court of Justice (ICJ) is the judicial body within the United Nations that deals with disputes between states. Many treaties designate the ICJ as the mechanism for resolving disputes arising under the treaty.
Important principles:
- Stare decisis (precedent) does not apply to ICJ decisions
- According to Article 59 of the Statute of the International Court of Justice, ICJ decisions only bind the parties to the particular dispute
- However, the court considers past rulings in its decisions
- ICJ decisions help shape the content of treaties
Other international courts: Other courts and tribunals also contribute to establishing international law:
- International Criminal Court (ICC): Prosecutes the most serious crimes concerning the worldwide community
- European Court of Human Rights (ECHR): Regional court ruling on violations of the European Convention on Human Rights
- Specialized tribunals: Established for particular purposes and timeframes, such as the International Criminal Tribunals for the Former Yugoslavia and Rwanda
Australia v Japan Whaling Case
Australia initiated action against Japan regarding whaling in the ICJ. The court ruled that Japan had to cease whaling in Southern Ocean waters, demonstrating how the ICJ can produce binding rulings in contentious disputes between states.
Legal writings
Due to the changing international political landscape and the developing nature of international law, writings of respected international lawyers, judges, and academics play an important role in guiding decision-making and treaty formation.
Official recognition: Article 38(1)(d) of the Statute of the ICJ mentions scholarly writings (along with judicial decisions) as a means of determining the rules of international law. Scholarly legal writings may be drawn upon to interpret treaties or determine their application in international disputes.
Example: In 2007, the Sydney Panel of Independent International Legal Experts provided advice to the Australian Government on whether the legality of Japan's "scientific" whaling program could be challenged under international treaties. Although commercial whaling has been prohibited since 1986, Japan relied on an exemption permitting killing whales for scientific research.
International organizations
The United Nations
The United Nations (UN) is the chief organization involved in international law. It is "a world organization dedicated to world peace and the sovereignty and equality of all its members."
Establishment: The UN was established in 1945 by the Charter of the United Nations. At its first meetings, 51 countries were represented; by 2012, membership had grown to 193 member states.
Main objectives of the United Nations:
- Maintain global peace and security
- Develop good relations between states based on recognition of equal rights and each state's right to self-governance
- Promote cooperation in solving international problems
- Protect human rights
- Develop legal frameworks to address terrorism, drug trafficking, landmine clearing, and environmental protection
- Fight disease, reduce poverty, and provide emergency relief
UN International Law Commission: This body is primarily responsible for codifying and developing international law. The UN General Assembly's Legal Committee (Sixth Committee) receives the Commission's reports and may organize conferences to draft conventions based on recommendations.
Criticisms and challenges:
- State sovereignty often poses challenges to UN authority, especially regarding peace and security
- The UN has no power to make states enact its resolutions into domestic law or follow particular courses of action
- Effectiveness depends heavily on the political will of states
- The structure of the Security Council may need re-examination
The General Assembly
The General Assembly is the main body of the United Nations, made up of all member states. It serves as the main forum for multilateral discussion on all international matters covered by the UN Charter.
Functions:
- Discusses and makes recommendations on UN operations
- Addresses conflicts between states
- Considers practical questions regarding political cooperation, human rights, and international law
- Appoints non-permanent members of the Security Council
- Oversees the UN budget
- Establishes committees, commissions, and working groups for particular purposes
The General Assembly meets annually and can convene more often if required.
The Security Council
The Security Council is the most powerful part of the UN. It is "the arm of the United Nations responsible for maintaining world peace and security" and serves as the executive of the UN.
Composition:
- Five permanent members: United Kingdom, United States, Russia, China, and France (countries victorious in World War II)
- Ten non-permanent members: Serve two-year terms (Australia has been a member five times since 1945)
Powers and responsibilities:
- Primary responsibility for maintaining international peace and security
- Can investigate disputes that could lead to conflict
- Can issue economic sanctions to persuade states to change policies or stop aggression
- Can send peacekeeping troops from member states to conflict areas
- Can authorize collective military action
The veto power: Security Council resolutions require a unanimous vote of all five permanent members. If one permanent member votes against a resolution, it is not carried. This veto power is considered a fundamental weakness of the Security Council system.
The Darfur Crisis (2004)
During discussions about the humanitarian crisis in Darfur, Sudan, China and Russia (which had significant oil interests in Sudan) threatened to veto any Security Council resolution involving economic sanctions. Resolution 1564, passed in September 2004, disappointed human rights groups due to the absence of stronger measures like an oil embargo and targeted sanctions against government officials.
The Syrian Civil War
The ongoing Syrian civil war, with its massive loss of life and destruction, has been declared "unacceptable" by the UN. However, no economic sanctions have been imposed because general agreement has not been reached among Security Council members. This lack of consensus has meant UN workers cannot access refugee camps to provide aid, limiting the UN to making statements calling for member countries to carry out sanctions.
Criticism: The Security Council was established over 60 years ago and may not reflect the broad spectrum of cultural values evident in the world today. For example, including a Muslim nation as a permanent member could make the Security Council more representative.
Courts and tribunals: The International Court of Justice
The International Court of Justice (ICJ) is the primary judicial body of the United Nations, established in 1945.
Principal activities:
- Settle disputes submitted by states
- Provide advisory opinions on legal questions submitted by the General Assembly, Security Council, or other authorized UN bodies
Jurisdiction: The ICJ can only hear disputes if the nations involved accept the court's jurisdiction.
Two types of cases:
1. Contentious issues: Legal disputes between states on which the court produces binding rulings.
2. Advisory proceedings: The General Assembly or Security Council requests the court's opinion on any legal question. Other UN organs may request advisory opinions only regarding their own activities. Advisory opinions often concern particular controversies between states but are not binding.
Intergovernmental organizations (IGOs)
Intergovernmental organizations (IGOs) are organized groups of states established to pursue mutual interests in various areas. Many IGOs are subsidiary agencies of the UN; others make collective decisions about international issues such as refugees, tariffs, or wealth.
Example: International Labour Organization
A UN agency whose aim is to ensure safe and fair treatment of workers.
Example: European Union
A regional organization—an economic and political partnership of European nations that have agreed to cooperate for the common good. It has regulatory powers covering areas such as human rights, the environment, economic policies, and trade.
Non-government organizations (NGOs)
Non-government organizations (NGOs) are associations based on common interests and aims with no connection to any government. They make contributions in areas ranging from world peace, disaster relief, and environmental protection to promoting education and alleviating poverty.
How NGOs work:
- Inform the public about important issues
- Lobby governments to take action on concerns
Examples: Red Cross, Greenpeace, World Vision
Amnesty International: A well-known human rights NGO described as a "global movement of over 7 million people committed to defending those who are denied justice or freedom." It is independent of any national government (does not rely on government funding) and campaigns on issues including:
- Rights of women, refugees, and indigenous peoples
- Regulation of global weapons sales
- Abolition of torture and the death penalty
Relevance of international law to Australian law
How treaties become Australian law
Unlike some countries (such as France), ratification of a treaty does not automatically make it part of Australian domestic law.
Implementation process:
Some treaties require new legislation: The federal government may rely on the external affairs power in s 51(xxix) of the Constitution to pass new legislation implementing a treaty. It may also use other powers such as the trade and commerce power in s 51(i) if the subject matter involves shipping.
Other treaties are already satisfied: For some treaties, existing federal or state/territory legislation is sufficient because Australian law already satisfies the treaty's terms.
Method of implementation: International law does not dictate how Australia implements treaty obligations. The preferred method is incorporating the actual text of treaty provisions into domestic legislation.
Space Activities Act 1998 (Cth)
This Act contains provisions from several UN treaties regulating the exploration and use of outer space, demonstrating how treaty obligations can be incorporated directly into Australian legislation.
Influence beyond legislation
Treaties also influence Australian law through:
- Development of the common law
- Judicial review of decisions
- Judicial interpretation of statutes
Examples of treaty implementation
International Covenant on Civil and Political Rights (ICCPR):
- Human Rights Act 2004 (ACT)
- Charter of Human Rights and Responsibilities Act 2006 (Vic)
Convention on the Rights of the Child (CROC):
- Family Law Act 1975 (Cth), particularly s 67ZC
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW):
- Sex Discrimination Act 1984 (Cth)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT):
- Division 274 of the Commonwealth Criminal Code
Remember!
Key Points to Remember:
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International law governs relationships between states, while domestic law applies within a single country. A state needs defined territory, permanent population, effective government, and capacity for international negotiations.
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Five main sources of international law: customary international law (unwritten traditions requiring opinio juris), declarations (non-binding statements), treaties (binding agreements), legal decisions (ICJ rulings), and legal writings (scholarly works).
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The United Nations is central to international law. The General Assembly (all member states) discusses and makes recommendations, while the Security Council (5 permanent + 10 non-permanent members) maintains peace and security. The veto power of permanent members is a key weakness.
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International law faces enforcement challenges because it relies on state consent and cooperation rather than compulsion. Cultural diversity means not all states agree with all international laws.
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In Australia, treaties don't automatically become law. New legislation is often required to implement treaty obligations, typically using the external affairs power in the Constitution. Treaties also influence common law development and statutory interpretation.
Key terms: domestic law, state, sovereignty, international law, treaty, declaration, ratify, opinio juris, United Nations, General Assembly, Security Council, International Court of Justice (ICJ), intergovernmental organizations (IGOs), non-governmental organizations (NGOs)