Part 1: International and Comparative Law

Procedure of law for incorporating the provisions of international treaties in domestic law is different in case of every country, and in case of monist states constitution of the country stated that provisions of international treaties become the part of the domestic law. In Australia and other dualist states, it is necessary that government of the country introduce new legislation for fulfilling their obligations stated under international treaties and put the effect of treaty on domestic law. Such act of government is also known as the act of transformation.

For implementing the obligations of international convention in Australia, it is necessary that government passes particular legislation, and if government fail to pass such law then it is not possible to recognize the rights provided by international treaty in domestic law. Some exceptions are there related to this general rule which stated that in some particular situations provisions of international conventions are applicable without passing any legislation for that purpose  (Parliament of Australia, n.d.).

Values of international human rights are laid in the extent up to which these laws are includes in the domestic law of the Country. In Australia, government ratified number of treaties related to UN human rights, and such ratification by government of Australia make them accountable towards the international community for implementing and fulfills the treaty obligations. In number of countries international conventions are not recognized as source of law unless obligations stated under that treaty especially introduced by government as legislation under domestic law of Australia.

In Australia, concept of Federation is followed which states that country has both central as well as federal government, commonwealth government, and it also have state and territory government. In Australia there is one more government which worked at local level and this government known as local government. It is the responsibility of commonwealth government and federal government in Australia to protect and respect the human rights of individuals. These governments make sure those human rights obligations are fulfilled by the other levels of government and also by corporation and other individuals of government who are acted as non-state actors.

The process of transformation of international law into domestic law create number of difficulties, and these difficulties are solved by the use of doctrine of separation of power in which constitution of the Australia imposed power under parliament for making the laws related to particular subjects and other laws are enacted by state governments as per their working culture. Such division of power seems easy and simple but in actual practice it is difficult to divide the power between the state and parliament because responsibilities of these governments are confusing in nature. Section 51(xxix) of the Australian Constitution is considered as good example for understanding this concept, and as per this section Constitution of Australia imposed external affair power under the Federal government, and this power is interpreted by high court as power of Federal government to ratified any international treaty on behalf of the country, and this level of government can make changes or enact new law for implementing the provisions of international treaty in the government. For the complete implementation of ratified international convention it is necessary that federal government introduce new law or make amendments in some specific law  which are traditionally inherited in the jurisdiction of state or territory.

The Relationship Between Treaties and Australian Law

There are number of treaties which are ratified by the Federal government of Australia such as International Covenant on Civil and Political Rights 1966 (ICCPR), and this treaty was ratified by government on 13^th August 1980, and it states the rights of inherent dignity of the human being (Austlii, 1966). There is one more treaty International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), and this treaty was ratified on 10^th December 1975 (AHRC, n.d.)

If government fails to fulfill its obligation under international treaty then they cannot use the conflicts of domestic level as an excuse for such failure in front of international community. According to the Article 27 of the Vienna Convention on the Law of Treaties of 1969 any state cannot use any excuse related to the law of that state or any other deficiency of the state for answering the breaching claim related to international law made by international community. Therefore, it is the duty of all levels of governments in Australia to protect the human rights of Australian citizens, but it must be noted that in case of any breach of international law, accountability towards international organizations lies only on federal government (Austlii, n.d.).

Campbell J in case Samootin v Shea [2012] NSWCA 378, applied various laws for determining whether proceeding of this case is considered as an breach of law process in domestic law of Australia. The proceeding is considered as an abuse because provisions of international treaty are not inherited in domestic law. In this case, Court said that international treaties ratified by Federal government of Australia do not inherited by the government in domestic law of Australia.

Williams ACJ, Webb and KittoJJ stated in case law Brennan v Brennan [1953] HCA 28; (1953) 89 CLR 129 at 134, that in Australian domestic law any judgment provided by higher court is valid until that judgment is set aside by appeal. Reasons provided by Court in appeal judgment of 2010, that Ms. Smootin does not have standing to challenge on appeal that order which she wants to challenge in the proceedings conducted in 2012. Therefore, appeal proceedings conducted in 2012 is determined as breach of process (Piets, n.d.).

There is one more example that is case law Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449 at 462, 471 and 477, in this case Court said that international conventions ratified by the government are not used as direct source of law, especially in case of rights and obligations of individual under that law. Court further said that if any provision of the international convention is implemented by enacting new law than it is considered as part of the Australian domestic law but and treat as legislation of Australia but it not become the treaty itself (Austlii, n.d.).

Government and other authorities face number of issues while conducting their process, and recent issue faced by government and other authorities is implementing the provisions of international convention under the domestic law. It is necessary for the development of common law that domestic courts must acknowledge the treaty ratified by the government of Australia as a guide for development, especially those treaties which are related with the universal fundamental rights. Murphy J recognized the Use of provisions of international treaty within the High Court for affecting the Australian Domestic law. Many examples are stated for understanding the approach recognized by Murphy J, and one example among those examples is case law Dugan v Mirror Newspapers Ltd, 20 McInnis v R21, in this case Murphy determine those provisions of international treaty which are related to human rights and has direct influence on the common law of Australia, especially in those specific areas in which doctrine stated by common law was applied but by majority judges applied the provisions of common law. In recent years, many judges consider the provisions of international treaty while providing their judgment, there are number of cases in which international law is recognized by the judges while discussing the common law but this discussion is very short. In other words, role played by international law was very short.  This issue was raised by the Kirby J for increasing the scope of international law into domestic law. In case law of Mabo, High Court recognizes the provisions of international law as the source of development of common law. Therefore, in case Mabo v Queensland (No 2), High Court further stated native title of the Australian aboriginals are recognized by the Australian common law. If such native title had not been extinguished by Court then aboriginal peoples were inherited to their traditional lands according to their traditions and law. Judgment of Court in this case overturned the terra nullius doctrine under common law, as per this doctrine Australian territory is treated as without owners and it can be acquired through occupation during the time of European settlement. Appeal was filed by Brennan J for international standards related to civil and political rights, and this is the reason for reconsider the decision of refusal made in previous time for the interest of aboriginal in land.

Treaties That Have Become Part of Domestic Law in Australia

Brennan J with the support of Mason CJ and McHugh J stated that availability of remedies provided by international law to individual related to accession of Australia for optional protocol to the international treaty on Civil and Political Rights powerfully influence the common law of the Australia. It must be noted that it is not necessary to conform the international law to common law but provisions of international law are important for the development of common law especially in case of presence of international human rights.

Therefore, number of Courts accepts the implementation of international convention for the purpose of development of common law, but courts do not clarify any circumstances in which such treaties are applied. In other words, there is no clarity whether international law reflects any change in the common law, as opposed to justifying the resolution of ambiguity and uncertainty. Above facts clearly states that High Court used the international treaties for deciding that situation in which they can replace the common law by the provisions of international treaty. While issue relating to the introducing the provisions of international law in domestic law still pending for court’s approval. Use of international law is based on the promotion of concept of common law which also involves the implementation on international treaty into domestic law for enacting new laws (Cranwell, 2001).

The International Court of Justice (ICJ) is the main judicial body of United States, and this court is the body which exercise jurisdiction over all the matters of the members of UN. In other words, ICJ exercise jurisdiction on all the states of the world. From scholar and political concept ICJ is considered as important body of UN, and this judicial organ help many states by resolving their disputes through their judgments (ICJ, n.d.). It is not necessary that states complied with the judgments of ICJ, and this can be seen in many cases in which states does not consider the jurisdiction on ICJ. ICJ reflects number of possibilities in the legal system at international level. In case of defenders, major role was played by ICJ for managing their issues and disputes at international level and resolving the disputes between the UN members. Working of ICJ was criticized by those who lost their cases such as politicians and diplomats, and they also said that judgments provided by ICJ are influenced by other factors also. As stated by Jeane Kirkpatric, ICJ is semi-legal, semi-juridical, and semi-political body and judgments provided by ICJ are sometimes accepted by the states and sometimes they don’t accept the judgment (Posner & Figueiredo, 2005).

For becoming the party of any contentious case presented before the ICJ, parties to the case must have access to the Court and they are willing to accept the Jurisdiction exercised by the ICJ. It is necessary under (Article 35(1) of the Statute of the Court) that all the states which become parties to the statute of the Court have access to the court, and after signing the UN charter all the states automatically become the party of the statute of the Court under of the Court Article 93(2). There is one exception to this general rule also which state that any state which does not become part of the UN charter can also access the Court by becoming the party of the Statute of the Court Article 93(2) of the UN Charter. Article 35(2) of the state that those states which are not become the party of the statute of the Court can also access the international court of justice. But for accessing the Court it is necessary to fulfill the conditions stated by Security Council (UN org, n.d.). ICJ jurisdiction completely depends on those states which have right to access the ICJ. Some cases are there in which court can only exercise its jurisdiction when parties give their consent, and such consent by states is given by the way of unilateral declarations, and it also called optional clause which is also declared under the treaties by the way of special agreements (ICJ, n.d.).

Part 2: State Responsibility and Environmental Regulation

In practical aspect compulsory jurisdiction is only a word and it is completely depend on the consent of the states related to dispute. It is completely the discretion of the parties to the dispute to rely or not to rely on the jurisdiction of the Court, and they can exercise this discretion as per terms and conditions stated by them. It must be notes that if once state provided their consent related to jurisdiction of the Court and dispute is proceeded on the basis of that consent then in such case state cannot deny the Court’s jurisdiction, and they are bound by compulsory jurisdiction of the Court (Alexandrov, 2006).

Decisions considering preliminary objections are governed by the Article 79 of the Rules of the Court, and these objections are determine as those objections which required that decision must be proceed before the Court for the purpose of considering the disputes on the basis of merits of the case. As stated by judges preliminary objections are raised not only for the purpose of avoiding the decisions but parties also raise the objections for making the discussion on merits of the case before the Court. Many cases are there which states that if issues related to jurisdiction and merits are concerned on the basis of facts then in such case it is not possible to find difference between them, but it must be noted that court can join the preliminary objections on the basis of the case merits.

Issue related to preliminary objections occurred only when partial jurisdiction is accepted by one party. In other words, when one party of the dispute accepts the optional jurisdiction of the Court and filed suit against the other party under declaration made under Article 36(2) of the Statute. Preliminary objections include objection related to state’s capacity for the purpose of presenting their claim before the ICJ, objections which relates with the jurisdiction of the court for announcing case merits because reservation is applicable on it, objection which state that this matter is already been resolved, and objection that same matter is pending before any other forum. Party can also raise objection on the ground that instrument on the basis of which dispute is filed is not in force or at the time of dispute instrument is not applicable or domestic law has jurisdiction over the matter of dispute, and international law does exercise any jurisdiction over this matter (ICJ, 2015).

Objection can also be raised by parties that ICJ cannot solve the diplomatic means of settlement, or issue related to dispute is of political nature or matter is already presented before the Security Council of the United Nations. Objections on the ground that local remedies are not exhausted can be raised by parties in those cases in which rights of nationals are infringed by other party. It must be noted that ICJ does not accept any objection which involve political factors. ICJ also rejects many arguments which state that ICJ has no power to deal with any such matter which is pending before the Security Council of the United Nations (Llamzon, 2008).

Case Study: Ecks Company and State Z

In 1998, judgment was provided by ICJ in which they said that ICJ can exercise the jurisdiction in the case filed by Cameroon in 1994 against the Nigeria. ICJ can settle the disputes of number of states. Therefore, when Cameroon made application on 29th March 1994, ICJ decided to proceed with the application. On 6^th June 1994, application made by Cameroon was amended on the request, and this request was made for considering the question involved sovereignty related to Bakassi Peninsula which was occupied by Nigerian armed forces and islands in Lake Chad, and it also includes the issue of boundary between Cameroon and Nigeria. ICJ constitute 15 judges appointed by the UN General Assembly and Security Council for the duration of 9 years, and two judges was especially appointed for this case on the ad hoc basis. On 13^th December 1995, Nigeria filed 8 preliminary objections on the ground of jurisdiction of the court and proceeding of application filed by Cameroon. According to the court’s rule, in case any party related to dispute filed preliminary objection then it is necessary to hold the main proceedings, and court is bound to provide decision on preliminary objections first before initiating the main proceedings of the case (Bekker, 1998).

In this present case, Z can raise various objections on the ICJ jurisdiction, and these objections are stated below:

• Z can raise objection that there is lack of appropriate nationality, which means that it is necessary that there must be genuine link between the national and state for the purpose of filling the suit by state on behalf of national. In this case, there is formal link between the parties such as incorporation of Ecks in state X, but genuine links are not there such as headquarters of Ecks, operating plant, maximum number of employees and maximum shareholders of company are in state Y. Therefore, no genuine link is exists between the national and the state.
• Z can raise one more objection that is exhaustion of local remedies, which means that state does not applied for any local or domestic remedy such as appeal was not filed by Ecks against the decision of the Court of state Z.

References:

AHRC. Chart of Australian Treaty Ratifications as of May 2012 – Human rights at your fingertips – Human rights at your fingertips. Available at: https://www.humanrights.gov.au/chart-australian-treaty-ratifications-may-2012-human-rights-your-fingertips-human-rights-your. Accessed on 11^th 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.

Austlii, (1996). Australian Treaty Series. Available at: https://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html. Accessed on 11^th 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 11^th 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 11^th April 2017.

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).

Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449 at 462, 471 and 477.

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 11^th April 2017.

Dugan v Mirror Newspapers Ltd, 20 McInnis v R21.

ICJ. Contentious Jurisdiction. Available at: https://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1. Accessed on 11^th April 2017.

ICJ. Obligations concerning negotiations relating to Cessation of the nuclear arms race and to nuclear Disarmament. Available at: https://www.icj-cij.org/docket/files/160/18912.pdf. Accessed on 11^th April 2017.

ICJ. The Court. Available at: https://www.icj-cij.org/court/index.php?p1=1. Accessed on 11^th 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).

Mabo v Queensland (No 2).

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 11^th April 2017.

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 10^th 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.

Samootin v Shea [2012] NSWCA 378.

UN conference. Dispute Settlement. Available at: https://unctad.org/en/docs/edmmisc232add19_en.pdf. Accessed on 11^th 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 11^th April 2017.