Background
International law entails principles and rules that govern relations among countries, individuals, and organisations. It also has public international law that deals specifically with rights among different states and various citizens of different states. On the other hand, private international law looks at disputes among private individuals, natural or juridical, which occur among parties of different nations. In some cases, the line between public and private international laws has become unclear.
International law in Australia
Australia operates under the federal system of laws. This makes its relation to international law a complex affair. Enforcement of international law in Australia has met challenges. However, we must understand that enforcement alone does not determine the extent of what the term law means. This is because, in some cases, domestic laws may also be unenforceable.
In the recent case of Jenton Overseas Investment Pte Ltd v Townsing [2008] VSC 470 (11 November 2008), the Supreme Court of Victoria offered an essential observation of how the uses Foreign Judgement Act 1991 may affect enforcement of international law. The Judge turned down an application from a foreign country (Singapore). He observed that Australian courts are reluctant to invoke public policy as an avenue for refusing enforcement or recognition of foreign judgement.
Australian courts have not recognised or enforced foreign judgement on this basis. The main reason is the “interest of comity’ to maintain” (mutual respect among sovereign states) (Foreign Judgment Act 1991). This happens when courts observe the Foreign Judgment Act. In this regard, enforcement and registration are only relevant on the grounds that are ‘significant reciprocity of treatment’ of Australian judgement in a foreign country.
The courts also observe this because of public policy volatility. In this sense, a repugnant law may exist or repugnant applications of such laws may occur; thus, offending public policy. However, such cases only occur in crucial cases where there are offenses of laws of Australia public policy.
Despite such challenges, Australia wants to enhance enforcement of international law. This is an attempt to understand various laws from different nations, legal procedures, and institutions in areas of international laws. Australia planned to enhance this approach through establishing institutions, training, and legal exchanges.
In the international front, Australia has signed several treaties relating to international law on areas of social security, trade, shipping, security, non-proliferation, and defence among others. These treaties form the basis of international law. However, the country experiences challenges in enforcing such laws due to its federal system.
The federal system provides an opportunity for opposing parties to opt for arbitral laws instead of relying on Model Law based on the International Commercial Arbitration of the United Nations Commission on International Trade Law (UNCITRAL). This is a significant source of challenge to application of international law in Australia where various laws of different nations interact.
Another source of a challenge lies in the appeal or review powers of different states with regard to Commercial Arbitration Acts. Recent trends also indicate the process is litigious and reflect those of court processes. These technical issues make application of international law in Australia difficult.
In 2009, the federal government of Australia has realised such technical, legal challenges and consequently introduced a bill so as to change the relevance of international law in the country. This bill seeks to repeal section 21 of the International Arbitration Act 1974 (Cth). The section has allowed parties to disregard application of Model Law.
The bill also seeks to repeal loophole that allow parties to “nominate an alternative arbitral tribunal” under the International Commercial Arbitration in Australia. This implies that State and Territory laws shall only operate in the domestic cases. This bill shall transform the relevance of international law in Australia as it seeks to eliminate legal challenges that arise from the federal system. The process has also not been so efficient in Australia such as in the area of confidentiality.
International law requires states to comply with certain conditions in enforcement with regard to individuals. Thus, it is an offence for a nation to treat a foreigner in a way that violates provisions of the international law. The challenge lies in lack of a relevant agreement that a foreigner can use to complain before the international tribunal. However, a country can raise such issues.
Nations are not under any obligation to enforce such rights. This implies a nation can choose to enforce or not to enforce such law. Such observations lead scholars to conclude that international law is never a law. This is because countries which formulate such international law, through treaties and conventions, do not recognise or treat international law as law in their countries.
Despite such challenges to international law, we must recognise that the law is applicable and works in all states. Nations must recognise it, and adhere to set benchmarks. In this regard, Australia has recognised its relevancy in areas of peace, development, human rights, and democracy. Australia must comply with such international law so as to safe its self-interest and on the ground of reciprocity.
We can argue “that the Commonwealth only enters into an international obligation because doing so is relevant, therefore, important to the advancement of the interests of Australia.” This is so because Australia needs to address matters of international cooperation and of common concerns.
In case Australia fails to fulfil needs of international law, it becomes an issue of international interest and disapproval. In this context, most states observe international law even if such observations are mundane in nature, and have less impact relative to national law. This also explains why Australian lawyers practice international law before domestic courts.
We cannot ignore functions of courts in enforcement of laws. Australian courts are important in facilitating enactment and enforcement of international law. Thus, Australian courts should not be hostile in enforcement of international law through facilitation, interpretation, and implementation, but should harmonise its law with those of other countries. Other jurisdictions may have high regards of judgements of Australian courts; thus, enhancing enforcement of international law.
Sources and evidence of international law
Article 17
Decisions of the United Nations Human Rights Committee (HRC) in cases brought by individuals against Argentina, France and Gabon involving Article 17 issues:
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation (UN HCR 1988).
- Everyone has the right to the protection of the law against such interference or attacks (UN HCR 1988).
The UN Human Rights Committee (HRC) has Counter-Terrorism Strategy that the General Assembly has recognised in the resolution of 64/297. According to the UN, states terrorist acts can destroy human rights, democracy, and freedom. In addition, such measure may violate or prejudice the rule of law and human rights.
Thus, observing human rights can address factors responsible for the spread of terrorism. Still, effective counter-terrorism acts and human rights protection are necessary for combating terrorism. As a result, the HRC has “ten best practices” for combating terrorism. According to HCR, ‘best practices’ reflect legal and institutional provisions that enhance promotion and protection of human rights and the law in all various cases of counter-terrorism.
Best practices also cover benchmarks of the international law, human rights, and all aspects of a country’s legally binding conditions. Best practices can be existing, emerging, required, and recommended among international bodies and domestic courts. Such practices must also relate and promote effective fight against terrorism. Best practices must also comply with human rights, enhance the enjoyment of human rights, and fundamental freedom.
A UN General Assembly resolution on the right to privacy
A UN General Assembly resolution on the right to privacy indicated that International human rights law condoned invasion of privacy where it was mandatory for legal reasons, and performed with agreeable dignity. For instance, in the US (United States v United States District Court, 1972), the Supreme Court ruled that it was illegal to carry out surveillance of a US citizen without a warrant even if the operation benefits a nation’s national security. However, in reference to ICCPR Article 17, invading individual’s privacy without a warrant is tantamount to interference with an individual’s privacy the law does not allow; thus, such actions are unlawful.
A general comment by the UN HRC on Article 17
A general comment by the UN HRC on Article 17 is in General Comment No. 16 (04/08/1988). It has provisions on the right to “respect of privacy, family, home and correspondence, and protection of honour and reputation” (UN HCR 1988). It protects people against unauthorised or arbitrary interference with individual privacy from the state or other bodies. In this context, every country should uphold the UN HRC provision whether such interferences originate from the state, lawyers, or natural persons. Therefore, countries should enact laws that guard against such interferences so as to protect individual rights.
A decision of the Supreme Court of New Zealand, which upheld the compatibility of their law with international human rights standards
A decision of the Supreme Court of New Zealand, which upheld the compatibility of their laws with international human rights standards rely on the provision of the New Zealand Bill of Rights Act 1990. New Zealand observes that such laws have same provisions as those of the Australia law of statutory interpretation.
This also applies to Section III of the British Act that needs the court to interpret the law in a way that is compatible with Convention rights. There may be ambiguity in interpretation, but the jurisprudence in New Zealand can provide guidance, in the use of the common legislation in Australia.
An article written by Professor George Williams, a leading expert on anti-terror laws
Professor George Williams, a leading expert on anti-terror laws, observed that Australia passed several anti-terror laws after the 9/11 attacks. The country passed at least one anti-terrorism law after every seven weeks. The Professor observed “It would be unthinkable, if not constitutionally impossible, in nations such as the United States and Canada to restrict freedom of speech in the manner achieved by Australia’s 2005 sedition laws.”
At the same time, Australia also empowered ASIO to detain and interrogate “non-suspect citizens” for a period of one week. He notes that such approach to anti-terrorism was unique among Australia comparable legal systems. In addition, the country’s Federal Parliamentary committee on intelligence and security also embarked on a mission of reviewing over 40 proposals that seek to increase the country’s intelligence-gathering power. On his view, such tough anti-terrorism laws were unnecessary and draconian.
A report published by Human Rights Watch examining New Zealand’s anti-terrorism laws and their compliance with international human rights standards
A report published by Human Rights Watch examining New Zealand’s anti-terrorism laws and their compliance with international human rights standards (2010) showed that national security (counterterrorism) measures impacted on the enjoyment of human rights. For instance, in 2007, the police used heavy-handed tactics to arrest suspected terrorists (Maori Terrorism suspects).
In this regard, New Zealand has recognised that it has a different constitution from the rest of the world, but was working to enhance provisions of human rights both nationally and internationally. These rights are in the Human Rights Act 1993, and New Zealand Bill of Rights Act of 1990. In 2009, the country noted that provision of human rights was mandatory so as to enhance the country’s credibility and promotes its international reputation.
The US had criticised New Zealand for weak counter-terrorism law. In this regard, the country decided to toughen its anti-terrorism law. The Terrorism Suppression Act 2002, according to New Zealand’s Solicitor General was incomprehensible. This means the Court could not prefer terrorism charges against the accused. This is a clear violation of human rights. However, the state still maintained some charges related possession of illegal firearms and grouping among others.
In 2010, the state had “Urewera 18” in custody awaiting trials. This is after three years since the court charged them. In this case, the Appeal Court of New Zealand ruled that the “Urewera 18” were to face trial without a jury. No one knows the reasons behind such decisions. The police faced criticism for such arrests, but it tries to maintain its dignity through insisting that such suspects must face trial related to organised crimes.
Bibliography
International Arbitration Amendment Bill 2009 (Cth).
Jenton Overseas Investment Pte Ltd v Townsing [2008] VSC 470.
Koowarta v Bjelke-Petersen [1982] HCA 27 [13].
Law Society of New South Wales (Young Lawyers), The Practitioner’s Guide to International Law (New South Wales Young Lawyers International Law Committee, 2010).
United Nations Human Rights Council, A/HRC/16/51, [22 December 2010].
Williams, George, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35 Melbourne University Law Review 1137-1175.