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INTERNATIONAL LAW STATES & SOVEREIGNTYEach country has laws for its own people, known as domestic law

A country can do this because it is an autonomous state which has sovereignty.

State sovereignty is the power to rule and make laws for that area.

STATES & SOVEREIGNTYThe term state can refer to a political division within a federation (NSW) or to an autonomous nation-state.

Australia is a sovereign state as only Australia can make laws for Australia.

In the legal sense, a state is an independent entity that is recognised by other states on an international basis.STATES & SOVEREIGNTYIn order to be a state, a place must have:

A defined territoryA permanent populationAn effective governmentThe capacity to enter into international negotiations

STATES & SOVEREIGNTYInternational law: governs the relationships between nation-statesEnables nations to participate in trade and commerceProvides mechanisms for the maintenance of peace and security, and the reduction of conflict.Covers fundamental human rights making it illegal to do things such as torture and genocide.

Domestic Law VS. International LawInternational LawAustralian Domestic LawApplicationApplies only to those nations that agree to be bound by the lawIs universal, meaning it applies to all (i.e. the rule of law)EnforcementComplex legal tribunals exist but countries are permitted to exempt themselves from casesLaw enforcement agencies exist, such as police, to enforce the lawCreationMade through negotiations between nationsMade by parliament or the rulings of judgesSOVEREIGNTYThe notion of state sovereignty is at the centre of all international law. It emerged at the same time as that of the nation state that all nations are fundamentally equal and that each nations rulers have the right to make decisions on behalf of the nation.

Why is this a problem for International Law?

SOVEREIGNTYIn Australia, when international law is made, it is up to the federal government to decide if they want the law to become part of Australian law. No other country can force Australia to accept the international law.

Commonwealth Rights CharterTHE Queen has signed a charter calling for an end to discrimination across the 54 Commonwealth nations.

http://au.news.yahoo.com/video/national/watch/cd99d390_0a65_30f1_8e50_a9f3f0640043/s/

Sources of International Law10Customary International Law (CUSTOMS)Not contained within a written document

Based on long established traditions/common practices

Accepted as being fair and right

Develops over time

Requires constant and uniform practice

Not considered law unless the nation-states accept the practice as binding = OPINIO JURISIVE NECCESSITATIS11EXAMPLECustomary International Law regulating war had been in existence for a long time before the Hague and Geneva Conventions explicitly outlined rules governing the conduct of nations when in conflict such as the way in which prisoners of war and civilians were to be treated.

12Customary International Law (CUSTOMS)Why can it be difficult to establish that international law exists?Difficult to establish it exists due to the law not being written downThe number of nations in existence has grown since WWI hence getting consensus can be problematic.Rate of change in the world today is rapid, therefore at times a more immediate response is required.

13Treaties and DeclarationsTreaties are the most commonly used source of international law.

According to the Vienna Convention on the Law of Treaties (1969), a treaty isan international agreement concluded between states in written form and governed by the guidelines of international law.

14TreatiesTreaties can either be:

Bilateral: - between two nationsE.g. Agreement between the Republic of Indonesia and Australia on the Framework for Security Cooperation (The Lombok Treaty) - concerning their common security and respective national treated.

Multilateral between many nationsE.g. Charter of the United Nations (UN) and its organs and agencies.Each country that is a signatory to this treaty has a seat in the General Assembly and participates in UN processes.

15TreatiesThe more nations that sign a treaty, the more powerful that treaty will be.

Treaties are used to make specific laws and to control conduct and cooperation between and within nations.

A treaty may also establish an international organisationE.g. Rome Statute of the International Criminal Court.

16TreatiesThere is no set way of making a treaty, but most treaties are made through direct negotiations between nations.

If all parties involved agree, then the treaty will be signed.

A document will only become a treaty if all parties have the intention of being bound by its provisions and obligations at the time of signing.

17TreatiesA treaty only becomes binding on a nation when that nation RATIFIES it confirms that it intends to be bound.

What does this mean in your own words?

This means passing the domestic law to accept the terms and conditions of international law.

18TreatiesFor some countries, such as France, treaties which a country ratifies automatically become part of their domestic law.

19DeclarationsDeclarations:State and clarify the parties position on particular issuesDo not impose legally binding provisions

A famous example is the United Nation Declaration on Human rights.

20DeclarationsUnited Nation Declaration on Human Rights.

The United Nations Commission on Human Rights was established following WWII and the Holocaust to draft the first universal statement on the basic principles of Human Rights.

21https://www.youtube.com/watch?v=hTlrSYbCbHE

Universal Declaration on Human Rights22Universal Declaration of Human RightsThe declaration is the foundation for two binding UN human rights covenants:

The International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Economics, Social and Cultural Rights (ICESCR)23Legal Decisions & WritingsThe International Court of Justice (ICJ) is the judicial body that deals with disputes between states.

Many treaties designate the ICJ as the means of resolving disputes that arise under the treaty.

24ICJhttps://www.youtube.com/watch?v=JkVMiyVkA6c 25Legal Decisions and WritingsStare decisis does not apply to decisions of the ICJ

Stare decisis latin term for the decision stands. The doctrine that a decision must be followed by all lower courts.

A decision of this court only binds the parties to the particular dispute.

ICJ decisions may help shape the content of treaties

26Legal Decisions and WritingsThere are other international courts and tribunals whose judgement contribute to establishing international law.

The International Criminal Court (ICC)Set up to prosecute the most serious crimes concerning the world wide community.

The European Court of Human Rights (ECHR)A regional court that rules on violations of the European Convention on Human Rights.

27Legal Decisions and WritingsSpecialised courts have also been set up for particular purposes and time-frames such as war crimes arising from a specific conflict

E.g. the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.

28Legal Decisions and WritingsThe writings of respected international lawyers, judges and academics have an important role to play in guiding decision making and treaty formation.

Scholarly writings:Are a means of determining the rules of international lawMay be drawn upon for the purpose of interpreting treaties or determining their application in international disputes.29Legal Decisions and WritingsGovernments may also seek the advice of experts on matters of international law.

E.g. The 2007 Panel of Independent International Legal Experts provided advice to the Australian Government on whether the legality of Japans scientiffic whaling program could be challenged under the Antarctic Treaty System International Convention for the Regulation of Whaling (1946).30Legal Decisions and WritingsAlthgouht commercial whaling has been prohibited since 1986 for all memebrs of the International Whaling Commission, Japan has relied on an exemption in the whaling treaty that permits killing whales for scientific research.

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Use pages 51 54 of your textbook to write notes on:

a)The United Nationsb)The General Assemblyc)The Security Councild)Non-government organisations

TOMORROW: We are looking at international law case studies and the relevance of international law to Australian law.

FRIDAY practice exam under exam conditions. Please be prompt!!