Introduction
In Australian jurisprudence it is widely acknowledged that treaties ratified by the government do not assume direct incorporation into Australian law. In most nations or states, treaties are generally not considered part of domestic law unless and until the legislature enact them one way or another. In Australia, the situation is no different. In absence of a legislative process a treaty cannot create rights or impose obligations on the citizenry and residents. But this scenario does not mean that prior to incorporation treaties will not have any effect on Australian law. On the contrary, the Australian High Court held that treaties may have some effect on domestic law before going through the legislative phase.This landmark jurisprudence should be appreciated for its progressive approach. The holding tends to conform to the standards expected of international law. This because it beats logic for nations to make laws at the international arena then sit back and refuse to implement the same pending domestic enactment of the same. It is critical for internationalism to be given preference over nationalist approaches. Such arguments are premised on the historical contexts in which the international law operates. Take for instance the emergence of fascism in Europe under the then dictators Hitler and Mussolini. It is instructive to note that the two were propelled into leadership on a nationalist premise that was blind to international law. Hitler was to later cause the death of millions of Jews and the resettlement of tens of millions of the same. It can be argued that had the world gave a hearing to international law, such sad moments in the history of the world would not have occurred. It is on that premise that this paper shall consider the issues of international law and its nexus to Australia.
While the quintessential of treaties forms an ancillary matter to this paper, it would be in order to outline the basics for a better response to the core issues. In common parlance, a treaty is an agreement entered into by two or more states which is binding in international law. This hypothetical case raises many questions touching on the interaction between international law and domestic law in Australia.
How treaties become binding to Australia
According to the Australian Constitution, the government can conclude valid treaties on behalf of the state. The power to enter into treaties lies with the executive within section 61 of the Constitution. This section gives discretion to the minister and in most cases the cabinet the power to deliberate and negotiate on the bilateral and multilateral conventions. The Constitution also allows parliament an examination role by ensuring that it passes legislations that would give effect to the treaty. The judiciary also enjoys an oversight role in ensuring that the application of the treaties is in consonance with basic international and domestic laws.
Although the Constitution does not confer any formal role to the legislature in the treaty making, all treaties are usually tabled in both houses of parliament for at least 15 days before binding action is taken. However the tabling is often done after the signing by the executive but before it. This means that the hypothetical Transfer Treaty signed between Australia and State B is binding to Australia because the Constitution allows the government to enter into treaties with any consultation with any authority.
The ‘Transfer Treaty’ in Conflict with International Law
The International Court of Justice is the principal judicial organ of the United Nations. Article 38 of the Statute is regarded as a provision of the classic, non-exhaustive listing of international law sources. Whether the listing is hierarchical (that is treaties being the most important while customary international law comes second) is still a contested issue. However Article 103 imposes the supremacy of obligation stemming from the UN Charter for the UN members in case of conflict with obligations deriving from any other international agreement. In light of the fact that all states are now members of the United Nations, this would be absolute for all states. The Convention Relating to the Status of Refugees is a United Nations multilateral treaty that is grounded in Article 14 of the Universal Declaration of Human Rights of 1948. The initial Convention adopted in 1951 is the centerpiece of international refugee protection today. The convection came into force on 22 April 1954.
The fundamental principles in this convention include non-discrimination, non-penalization and non-refoulement. The latter provides that no one shall expel or return (refouler) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threat to life or freedom. Granted that the principle of non-refoulement is so fundamental that no reservation or derogations may be made to it, I submit that it is not binding under international law because of its inherent conflict with the Convention Relating to the Status of Refugees.
The Constitution Does Not Allow Executive Enter Into an ‘Illegal Treaty’
The Constitution of Australia at section 61 grants the executive the power to enter into treaties, however, in recognition of the implications that can emanate from such powers, other arms of the government often have a role in ensuring that the treaty is in consonance with other domestic and international laws. Of particular significance are the Jus cogens whose derogation is not permitted in international relations. While the Constitution does not expressly talk of ‘illegal treaties’ Australia mostly relies on the different instruments that protect human rights to ensure that all laws and treaties domesticated respects the rights, attendant to citizens and residents, is aligned to local and international law.
The Constitutional Role of Commonwealth Parliament in Treaty Domestication
There are no detailed provisions relating to treaty-making in the Australian Constitution that touches on the legislature. However section 51 (xxix) of the Constitution give the government power under the external affairs power to advance legislations within the Commonwealth. But this power of external affairs is limited to legislations that are constitutional. They must not go contrary to some fundamental constitutional rights.
‘Transfer Bill 2013’ Inconsistent with International Law
Having argued out the high regard granted to the Convention Relating to the Status of Refugees in international law parlance, if the Transfer Bill 2013 gets parliamentary approval then it must be interpreted to be inconsistent.
Can State B be held Accountable in Australian Court?
The laws regarding state responsibility only apply to their international obligations. These obligations often emanate from the treaties that have been ratified by such states under international law or customary international law. While there is an apparent violation of Ms. M rights, such as being detained and suffering physical assault, she cannot initiate criminal proceedings against State B in Australian court. State B is an independent sovereign which cannot be subjected to the laws of an equal sovereign. The violation of her rights can however be arbitrated at the International Court of Justice where state B can be made accountable for the violation of customary international law. She could also initiate private criminal proceedings against her assailant at the immigration office in State B.
Individual Complaint to the United Nation Human Rights Council
Indeed Ms. M can lodge a complaint against the Australian government alongside State B under resolution 5/1 of the Human Rights Council which establishes procedures by which individuals, groups, or non-governmental organizations may lodge their complaints. In this regard the purported complaint will be verified to see if it meets the threshold before the council can choose to act upon it
Conclusion
This hypothetical scenario points to certain issues touching on illegal treaties entered into multilaterally or unilaterally by states and their implication on both the international and domestic law. It is important to note that sovereign are at liberty to enter into treaties but the treaties must not be in violation of the fundamental principles of international law and practices. Customary international law and the Jus Cogens should be respected. The constitutional framework of jurisdictions also has a role to play in the application some treaties with Parliament and the Judiciary playing a significant role in ensuring their conformity to the core international laws.
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