International LawSources of Contemporary Australian Law

What is International Law? All interactions between nation-states

rely on international law Trade Peace & security Human rights

Definitions

Domestic Law Applies universally

Enforced by agencies

Created by parliament or in courts

International Law

Applies only to countries which agree to adopt it

Countries can exempt themselves from enforcement

Created through international negotiations

Negotiati

on

• Between nation states. May last for an extended period of time

Agreement

• A law is proposed and written. Countries which are in favour of the law will sign an agreement.

Ratificatio

n

• A declaration of intent to make the international law binding in the home country. (In some countries, eg France, this is all that is required to make domestic law.)

Enacting

• In other countries, eg Australia, domestic law must be written and passed in parliament before it becomes binding.

Making International Law Domestic Law`

State sovereignty Belief that all nations are equal, and each

nation’s leaders have the right to make decisions for their own nation

Means that external countries (or even International organisations) have no authority to interfere with another nation.

Countries can even refuse to participate in international processes – even if they have previously agreed to abide by the International Law

Advantages

Independence – laws can suit a nation’s own culture/values

Prevents one person from ruling the world

Countries can be influenced positively by other countries

Disadvantages

Human Rights cannot be enforced

Different laws in different countries can cause conflict between states

Countries can be influenced negatively by other countries

Wealthy nations may be better positioned to prosper

Examples of breaches of international law Japanese whaling Russia and the Crimea (Ukraine) Australia spying on East Timor

Major sources of International Law

Declarations and Treaties

CustomsLegal Writings

Legal Decisions

Declarations & Treaties Most common sources for International Law Vienna Convention on the Law of Treaties

(1969): “international agreement concluded between states in written form and governed by the guidelines of international law” Bilateral – between 2 nations Multilateral – between more than 2 nations

Aka: conventions; covenants Declarations are similar to treaties: they

state beliefs, but they have no binding consequences for breaches.

Customary International Law Not written down – based on long-

established traditions Develops over an extended period of

time; countries must still agree to it. Most treaties originated as customary

international law.

Legal Decisions The International Court of Justice (a UN

court) has the power to make rulings regarding treaties.

These rulings (aka “decisions”) can act as a type of precedent in future, similar cases

(There are also other types of UN court which make decisions)

Legal Writings May be made by judges or other

academics and philosophers Even though these do not form binding

precedent, they can guide international lawmakers

Legal writings may spark discussion in international communities/organisations and can draw attention to flaws in international law.