Wednesday 19 May 2010

Legal Studies - International Law


Differences Between Domestic and International Law

International Law
Australian Domestic Law
Application
Applies only to those nations that agree to be bound by the law
Is universal, meaning it applies to all
Enforcement
Complex legal tribunals exist but countries are permitted to exempt themselves from cases
Law Enforcement agencies exist, such as the police, to enforce the law
Creation
Made through negotiations between nations
Made by the parliament (statute) or the rulings of judges (common)

State Sovereignty
The notion of state sovereignty is at the centre of international law. It states that all nations are fundamentally equal and that each nation’s rulers have the right to make decisions on behalf of the nation.
State sovereignty gives nations the right to refuse to participate in international laws and in hearings of international courts and tribunals.

 Sources of Law:
International Customary Law
An international custom is a rule that has been established because it has long been a tradition and followed by many nations. Until the 19th Century, almost all international law was customary, but customary law takes a long time to create. Despite the decrease in active creation of customary law, laws such as “The Law of The Sea” are largely based on customary law.
Instruments (declarations and treaties)
These can include conventions, protocols, covenant and declarations, but all cab be referred to as treaties. A treaty is described as an agreement between nations that is entered voluntarily. Those nation states which have signed are known as “parties to the agreement” and agree to be bound by the conditions and rules established in the agreement.
There are two main types of treaties. These are:
  1. Bilateral Treaties – these are treaties between two nations
  2. Multilateral Treaties – treaties between more than two nations.
 There is no prescribed way of making a treaty, although most follow this method:
  1. Negotiation – various nations that have an interest in the treaty discuss the clauses and conditions of the treaty
  2. Consent to be bound – participating nations agree to be bound by the treaty and they sign it.
  3. Ratification – considered the most important step, it involves the signatory nation passing domestic law to accept the treaty.
  4. Reservation - this allows nations to withdraw from a treaty or a part of it.
Legal Decisions
The International Court of Justice (ICJ) deals with most international law disputes. It is part of the United Nations structure and has the power to make rulings regarding treaties that nominate the court as the dispute resolution mechanism. Its rulings are considered a subsidiary means of international law making, but whilst not setting precedent, they are becoming an important source of international law as the ICJ has a tendency to use past cases to influence rulings.
Aside from the ICJ, there are also specialised international courts and tribunals. Cases involving war crimes are heard in ad hoc war crimes tribunals.
Legal Writings
In the 16th – 18th Centuries, legal writings established that the concepts of Natural Law – which held that law came from God and was above the authority of the state – were dominate. This included international law.
 By the 19th Century, the concept of positive law took over dominance.  This put a greater emphasis on the role of the state in making law and treaties and customs began to dominate international law rather than the legal writings.
 Legal Writings in the 20th Century are important as they focus the attention on defects in international law, leading to the rectification of these flaws. They also stimulate discussion and debate about the nature of the law.

Roles of organisations
The United Nations (UN)
When it was first established in 1945, the UN saw itself as providing a forum for nations in dispute with each other, but would not intervene in any matter that was domestic. In more recent times, the UN has deployed peacekeeping forces to various places where internal conflicts have developed. It remains a powerful force in the promotion of world peace and international law, despite heavy criticism. It uses a vast array of organisations to promote human rights and has established a legal framework for the prosecution of international criminals.
Courts and Tribunals
·         The International Court of Justice (ICJ) – this is the main judicial organisation of the UN. It consists of 15 judges and it serves two main functions:
1.        to decide on disputes brought before it by member nations
2.       To offer legal advice on matters of international law when requested by a member nation.
The ICJ is a court for nations only, only nations can bring a case to court. However, the ICJ’s jurisdiction is limited to agreements which have given jurisdiction over disputes to the ICJ, or from countries who have agreed to accept the ICJ’s jurisdiction on all matters.
·         War Crimes Tribunals – these are special international courts, created when needed (ad hoc) to try individuals accused of war crimes and crimes against humanity.
·         International Criminal Court (ICC) – created by a special treaty known as the Rome Statue in 2002.  This court is a permanent court and deals with cases against individuals who have been accused of the most serious international crimes (eg. Genocide.) The ICC will not hear as case that is currently under investigation by another body unless the investigation is no genuine or it is unfair.
Intergovernmental Organisations (IGOs)
These are organisations that represent the governments of member nations. The UN is the most significant, but other regional based ones such as the European Union (EU) exist. These organisations have their own international laws and regulations; some enforce these with their own tribunals and sanctions.
Non-governmental Organisations (NGOs)
These groups represent special-interest groups but are not recognised under international law and have no direct legal role. However, they play a significant role in applying political pressure to nations to abide by international laws.

Relevance to Contemporary Australian Law
Australia plays a very active role in international law, being one of the found members of the UN and remains active in UN peacekeeping activities.
International law plays an important part for Australian Domestic Law as well. Eg. Tasmanian Dam Case (1983) – Franklin River Dam blocked by Federal Government after Government signed treaty regarding world heritage listed Gordon River.

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