1

International legal institutions and processes

Sustaining national sovereignty and global peace

2

Aims

Institutional role of international law

Ethics & values that inform international

law

Explain how international law can be

upheld in domestic context

Relate international institutions to

institutions of law

Differentiate Australian framework of law from

international law

3

Recall…

Domestic Law

Aims

Source

Legitimacy

Subjects

Institutions

Processes

Enforceability

4

WHAT IS INTERNATIONAL LAW?

The nature and origins of law

5

What are the goals of international law?

6

Origins

Ratification of the Peace of Westphalia of 1648 in Münster |Gerard Terborch (1617–1681)

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‘International’ law (origins): whom did it serve?

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Contrast

Treaties Internationa

l sale of goods

Peace keeping

Inter-country adoption

Public international law (law of

nations)

Private international

law

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ContrastDomestic law: expression of sovereignty over citizens

Domestic Law

Citizen Citizen Citizen

International law: agreement between

nations

International law

Nation

Nation

Nation

Nation

10

Who is the subject of law?

Domestic Law International law

11

Hard law, soft law

TreatiesConventions

ProtocolsCovenants

ChartersRecommendations Declarations

Principles

12

International law reflects shared values

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UNITED NATIONSInternational law’s governing body

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Genesis of legitimacy, authority – think

constitution

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WE THE PEOPLES OF THE UNITED NATIONS DETERMINEDto save succeeding generations from the scourge of war, which twice

in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and

worth of the human person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom,

AND FOR THESE ENDSto practice tolerance and live together in peace with one another as

good neighbours, and to unite our strength to maintain international peace and security,

and to ensure, by the acceptance of principles and the institution of

methods, that armed force shall not be used, save in the common interest, and

to employ international machinery for the promotion of the economic and social advancement of all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS

[Preamble – UN Charter]

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INSTITUTIONS OF THE UN International law

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General Assembl

y

Security Council

International Criminal

Court

International Court of Justice

Economic & Social

Council

UN organs, agencies

Secretary General

UN Governance

decides

implement

s

recommend

s

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The General Assembly

Does it remind you of a legal institution?

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The Security Council

Does it remind you of a legal institution?

20

UN Secretary-General

Does this role remind you of a legal institution?

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MAKING LAWSInternational law

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What makes international law legitimate?What makes international laws valid?

Consider what you know about law

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Consider the logic: IF

Law reflects sovereignty

UN makes law

How is a nation

sovereign?

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Sovereignty

‘[t]he Organization [the UN] is based on the principle of the sovereign equality of all its Members’

UN Charter – Article 2

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Negotiate Adopt authenticate

Sign Ratify Reservations

Entry into force Treaty process

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Interpreting international law – parallels with Australian law?

Good faith

Ordinary meaning

In context

To achieve the

purpose

Supple-mentary means

Supple-mentary means

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How to connect?

International law (eg treaty)

Domestic law

(statute)

28

Enter treaty

Parliament passes

legislation

Only then will

international law become

part of domestic law

Australian law requires two steps

29

Cth executive

power

Enter treaty

Legislative power

Pass legislatio

n

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International law within domestic law: examples

Sex discriminatio

n

Race discriminatio

n

Torres Strait Treaty

World heritage

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Why do nations comply with international law?

Fear of ostracism

Sanctions Keep favour with other

nations

International friendship

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DISPUTE RESOLUTIONInternational law

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UN Charter – Article 33The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

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International Court of Justice

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ICJ

Where is it?

How many judges

?

Are judges

represent-ative ?

How are judges

selected?

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Sanctions

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Force

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Increasing or decreasing impact of international law in

Australia?

Mabo Response to anti-torture breach

Response to climate change

targets

39

Review

Origins; source; nature

Relationship: sovereignty; international + domestic law

Governance ~ constitution; parliament; executive; court

Making international law

Dispute resolution under international law