International law

Examples

  • Universal Declaration of Human Rights 1948
  • International Covenant on Civil and Political Rights 1966 (ICCPR ratified in 1980)
  • International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR ratified in 1972)
  • Convention relating to the Status of Refugees 1951 (Migration Act 1958, M70 v. Immigration Minister 2011 concerning s 198A)
  • Australia is a signatory to 7 international covenants/treaties

International covenants

  • Agreement between states and are used synonymously with ‘treaty’ or ‘convention’, usually mediated by an international organisation
  • These covenants usually bind states to ratify them in their legislatures in international law, but are not really binding in each individual state until ratified.
  • International protocols are definitely non-binding, and usually supplements or amends a covenant.

Australia’s engagement with international covenants

  • Has always shown support for human rights frameworks
  • Granted some UN bodies to hear complaints against Australia concerning rights abuses (Toonen v. Australia 1994)
  • Agreed to be bound on the international stage, but slow to implement obligations into law
  • Without ratification, human rights treaties cannot effectively protect individuals
  • Australia still has not implemented many of the majority of international protections
  • However, some have (e.g. Racial Discrimination Act 1975)
  • Parliament relies on s 51 xxix to ratify the treaties (Koowarta¬†v Bjelke Peterson 1982, Tas v. C’th 1983)

Toonen case

  • Toonen v Australia 1994
  • Example of how international agreements can provide a process by which individuals can have the rights upheld.
  • Toonen complained to the UN Human Rights Committee that TAS criminal laws regarding sodomy were interfering with his rights
  • Commission found in favour of Toonen¬†pursuant to the ICCPR
  • Federal gov’t passed an Act to override the TAS one using s 51 xxix

Strengths

  • Can result in domestic law being updated to conform with international treaties
  • Failure to uphold international treaties raises public awareness
  • Can provide a process by which individuals can raise concerns that their rights are not being protected

Weaknesses

  • There is no enforcement of treaties by Australia, and therefore no consequences if these treaties are not upheld.
  • Australia is not obliged to ratify international covenants simply because of its existence.
  • Governments may introduce legislation that is contrary to international treaties
  • Existence of international law may undermine democratic principles

 

 

 

 

 

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