Module 1 - Lecture 3 Notes: International Law and Domestic Law in Australia — Non-State Actors, Treaties, Customary Law, and Monism vs. Dualism

International law and non-state subjects; and their incorporation into domestic law (Australia)

  • Overview and context

    • The lecture starts from last week’s discussion on international legal personality and recognition, and connects that to non-state subjects of international law.
    • Aim: show how the status of non-state subjects under international law is given effect in domestic (Australian) law, and then examine how international law relates to Australian municipal law, especially treaty and customary law.
    • Focus areas: how Australia’s treaty obligations can be incorporated into domestic law; how customary international law operates within Australian common law; and related topics across the two systems.

  • International legal personality; non-state subjects

    • International organisations (IOs) have international legal personality distinct from states; not sovereigns but capable of rights and duties in international law.
    • Foundational case: Reparations for Injuries case (ICJ) – the UN possesses a large measure of international personality and the capacity to bring international claims; IOs are not states but are subjects of international law.
    • Contrast with the Permanent Court of International Justice: earlier reluctance to grant personality to IOs; the ICJ moved toward a functional conception that IOs are subjects with distinct status from states.
    • UN Charter recognition: IOs’ status is anchored in the Charter and later treaties; organs and representatives have status under international law, with rights/duties varying by mandate.
    • Articles of the UN Charter illustrating personality and immunity:
    • ext{Art. } 104: the UN shall enjoy in the territory of each member state such legal capacity as may be necessary for the exercise of its functions and fulfilment of its purposes.
    • ext{Art. } 105: privileges and immunities arising from being an international legal person; immunities within member states.
    • Privileges and immunities treaty framework
    • The Convention on the Privileges and Immunities of the United Nations (1946) – UN shall enjoy absolute immunity from suits within national courts (civil and criminal).
    • Australian domestic legislation recognises IO immunities and immunity from jurisdiction in Australia; this will be discussed further in privileges/immunities modules (state-immunity analogies noted).

  • Non-state subjects: specific examples and status under international law

    • Human rights and individuals
    • UDHR (1948): recognition of individuals as rights-holders under international law; foundational moment for individual rights beyond state-to-state interactions.
    • UDHR did not create binding obligations or causes of action; binding obligations emerged with later treaties.
    • ICCPR and ICESCR (binding treaties from the 1970s onward). Optional Protocols enable individuals to bring complaints to UN human rights bodies; mapping of which states have signed optional protocols (Australia has signed some protocols; regional architectures differ).
    • Australia is not part of a regional human rights regime with a court like the European Court of Human Rights or Inter-American system; however, UN human rights mechanisms still influence domestic law and can be used by civil society for advocacy and reform.
    • International criminal law and individuals
    • The International Criminal Court (ICC) established by the Rome Statute (2002); Australia is a State Party.
    • ICC jurisdiction over core crimes (genocide, crimes against humanity, war crimes, etc.), pre-trial procedures, arrest warrants, extradition to The Hague, and reparations for victims.
    • Australia has internal legislation to recognise ICC arrest warrants and obligations to comply with ICC processes; domestic law supports ICC cooperation.
    • Indigenous peoples and international law
    • UNDRIP (UN Declaration on the Rights of Indigenous Peoples) foregrounds rights to self-determination, cultural autonomy, and self-government.
    • UN bodies and fora (Permanent Forum on Indigenous Issues; mandate holders) promote Indigenous rights; Australian Human Rights Commission applies UNDRIP obligations domestically.
    • Transnational corporations (TNCs) and international law
    • Generally, TNCs do not have status under general international law; however, they gain personality through specific regimes, notably investment law.
    • Investor-State Dispute Settlement (ISDS) in dozens of free-trade agreements; private investors can initiate disputes under treaty provisions when state action affects investment rights.
    • Australia participates in ISDS provisions across multiple treaties; link to DFAT resources for treaty details.
    • Soft law and non-binding mechanisms: UN Global Compact (2000) – voluntary; 10 Principles (e.g., anti-slavery, child labour, etc.); many jurisdictions require corporate due diligence (e.g., Australia’s Modern Slavery Act 2018).
    • Other special entities and NGOs
    • Holy See (Holy See = Vatican) – sui generis status; capable of international treaty making; historically engaged in international law through treaty practice; not a UN member state.
    • International Committee of the Red Cross (ICRC) – NGO with special status under the Geneva Conventions; protected symbols and personnel; maintains a database of customary law in humanitarian law; not part of general IO status but has unique status in humanitarian law.
    • NGOs with treaty-regime observer status (e.g., UNFCCC) – observer status confers influence in deliberations and participation in certain processes; NGOs can engage with accountability mechanisms of IOs (e.g., World Bank grievance redress – non-binding but significant as an accountability mechanism; critiques include limited ability to stop projects despite violations).

  • The relationship between international law and domestic law: two-way interplay

    • The translation of international law into domestic law (monism vs dualism)
    • Monism: international and domestic law are part of a single universal legal order; ratification automatically makes international law part of domestic law (no separate implementation required). Example given: Germany’s post-WWII Basic Law recognises ratified international treaties as part of German law.
    • Dualism: international law and domestic law are separate legal orders; international obligations must be incorporated or transformed into domestic law by legislation or other formal acts (emphasises state consent).
    • Australia’s approach: dualist transformation
    • The Australian Constitution does not define the relationship; the High Court and Commonwealth Parliament have shaped the approach.
    • Incorporation vs transformation: two models about how international law can become part of domestic law within dualist frameworks.
      • Incorporation: international law is incorporated into domestic law unless there is an express conflict with domestic law (e.g., lack of compatibility with Parliament’s acts).
      • Transformation: international law is not part of domestic law unless explicitly adopted by domestic legislation or a domestic court decision.
    • A key UK decision (Trinex Trading Corp. v. The Secretary of State) highlights the difference: incorporation makes domestic law adapt to changes in international law; transformation keeps domestic law fixed unless Parliament acts. The UK generally follows incorporation; Australia follows transformation.
    • Important distinction: monism/duality are theories about whether international and domestic law are one or two orders; incorporation/transformation are pragmatic doctrines about how international law enters the domestic system under a dualist framework.

  • Australia’s constitutional and institutional evolution shaping external relations

    • Historical context: Australia’s status evolved from a British imperial framework to a federated Commonwealth with external sovereignty emerging gradually.
    • Key milestones:
    • League of Nations era: questions about dominions’ ability to bind international treaties; Australia gained some external sovereignty via parliamentary acts (UK and then Commonwealth acts).
    • Statute of Westminster Act 1931 (UK) and Australian constitutional evolution; 1946 citizenship changes; 1986 Australia Act severing imperial ties; Australia remains a constitutional monarchy with the British monarch as Head of State in a ceremonial sense.
    • Contemporary Australia’s external affairs power
    • Section 61: executive power to conduct foreign affairs and enter into treaties on behalf of Australia.
    • Section 51(xxix) or more generally external affairs power: enabling implementing legislation to give effect to international obligations; requires specificity in treaty terms and appropriate implementing legislation.
    • Tasmanian Dams case: external affairs power broadly capable of expansion; concerns about limits on Commonwealth legislative power; need for democratic scrutiny of treaties.
    • Joint Standing Committee on Treaties (JSCOT): Senate/House committee examining treaty texts; national interest test; submissions invited during treaty processes.
    • Treaty practice and domestic effect
    • Australia has entered into hundreds of treaties; around 1,800 treaties in force create binding international obligations.
    • Domestic incorporation varies; a treaty can create a binding international obligation without domestic action; implementing legislation can be partial or annexed schedules to formal acts.
    • Ratification vs domestic ratification (two separate acts): international ratification (signing/ratifying as an international obligation) vs domestic ratification (legislation enacted to give effect in domestic law).
      • Example: CERD (International Convention on the Elimination of All Forms of Racial Discrimination)
      • Australia signed in the 1960s; ratified in 1975; domestic effect through Racial Discrimination Act 1975 (RDA 1975).
      • Domestic ratification and international ratification are distinct; domestic legislation may implement only parts of treaty obligations.
    • Legitimate expectations from treaties
    • High Court: in the TO/Teoh line of cases (Migration Act), international obligations can create legitimate expectations for decision-makers to consider obligations when making administrative decisions; not an automatic requirement but a recognized consideration.
    • Subsequent developments limit or reframe this doctrine in some jurisdictions (e.g., South Australia statements; Ex parte Lands; 2021 Plaintiff S10 references) to restrict how unincorporated treaties can influence decisions.

  • Customary international law and Australian domestic law

    • Status and uncertainty
    • Historically: early Australian cases (Pottie/Chow Hung Ching) suggested international law could be a source of domestic law or guide interpretation; later High Court practice moved away from treating international law as automatically part of domestic law.
    • Nullarimba/Nullarooma era: the leading Full Federal Court decision (Nullaroonba/Nullaroomba—as named in the transcript) holds that customary international law norms prohibiting genocide are recognized, but customary international crimes are not automatically crimes under Australian law absent implementing legislation; the majority says no domestic crime of genocide exists unless Parliament enacts it; a strong dissent (Justice Whitlam) argued for incorporation of customary international crimes even without explicit domestic legislation.
    • After Nullaroomba, Parliament created domestic genocide offences under domestic law, with consent of the Attorney-General required for prosecutions; this demonstrates a shift toward requiring legislative action for domestic criminalisation of international norms.
    • Recent jurisprudence on international law and the common law
    • Mabo No. 2 and other cases: incorporation of international law principles to develop common law (native title recognition) and to inform statutory interpretation.
    • The High Court in Teo emphasized that interpreting statutes in line with international obligations is permissible when possible; but cautioned that judicial development of common law should not be a backdoor to importing unincorporated conventions into Australia.

  • International law and statutory interpretation in Australia; migration case (2021)

    • A notable case (High Court, 2021): a challenge to Australia’s migration arrangement with Malaysia under the Migration Act (forced transfer of refugees). The core issue: how to interpret the terms “provide access” and “provide protection” in light of Australia’s obligations under the Refugee Convention.
    • Plurality held that the terms must be understood in light of Australia’s international obligations; the minister’s declaration of Malaysia as a “specified country” for processing was ultra vires because it failed to satisfy the interpretation under Australia’s refugee obligations.
    • Aftermath and law reform: Parliament amended the Migration Act to remove the interpretive constraint, enabling regional processing in accordance with public interest; this reform avoided similar constitutional challenges in future, but the plurality decision remains a landmark example of international law guiding statutory interpretation.

  • Practical implications and concluding reflections

    • International law is not a formal source of Australian domestic law, but it informs domestic law in several ways:
    • It can guide the interpretation of domestic statutes (Teo); it can influence development of common law (Mabo No. 2); it can shape executive decision-making via legitimate expectations (TO/Teoh).
    • Treaties may be domestically implemented to varying degrees; ratification alone does not automatically create domestic causes of action unless implementing legislation is enacted (Dietrich v The Queen; Racial Discrimination Act 1975 example).
    • Customary international law has a contested status; some norms (e.g., genocide prohibition) reach domestic recognition via the legal framework (legislation or judicial interpretation) but require implementing steps for enforcement; a strong trend toward domestic criminalisation where Parliament acts.
    • The broader lecture’s takeaway: Australia has a “deep anxiety” about international law’s role in domestic law; yet international law remains integral in shaping domestic norms, interpretation, and policy, especially in human rights, refugee law, trade, and governance of international obligations.
    • The practical reality for lawyers: expect to encounter international-law-informed interpretation and decision-making in a wide range of areas (human rights, migration, indigenous rights, corporate accountability, and environmental/climate change regimes). Understanding the interaction between international and domestic law is essential for accurate legal analysis and advocacy.

  • Key people, cases, and instruments mentioned

    • International Court of Justice (ICJ) – Reparations for Injuries case (personality of IOs, UN status)
    • UN Charter: Article 104 and Article 105 (immunity and legal capacity)
    • Convention on the Privileges and Immunities of the United Nations (1946)
    • UDHR (1948); ICCPR; ICESCR; optional protocols granting individual communications
    • Rome Statute (ICC) – 2002; Australia’s status as a state party; ICC procedures and reparations
    • UNDRIP – Indigenous rights and self-determination
    • ICRC – humanitarian law, protected symbols, customary law database
    • Holy See (Vatican) – sui generis international personality; treaty-making history
    • Global Compact (2000) and Modern Slavery Act (Australia, 2018)
    • Genocide: Genocide prohibition; Genocide Act (Australia) – domestic recognition; consent of Attorney-General for prosecutions under Australian law
    • Pottie and Chow Hung Ching (early Australian engagement with international law)
    • Teoh (MIMA v Teoh) – legitimate expectation and use of international obligations in decision-making
    • Ex parte Lands; Plaintiff S10 (2021) – narrowing of unincorporated international obligations’ normative effect
    • Tasmanian Dams case – external affairs power and its potential breadth
    • Joint Standing Committee on Treaties (JSCOT) – scrutiny of treaty text and national interest test
    • Migration Act (Australia) – 访 regional processing arrangements; 2021 High Court decision on Malaysia arrangement
    • Dietrich v The Queen – international law as a consideration in criminal procedure and the right to a fair trial
    • Mabo No. 2 – native title recognition and use of international law to inform Australian common law
    • Australia Act 1986 – severing imperial ties; constitutional monarchy structure

  • Summary of numerical references and key dates (formatted for study use)

    • UDHR adopted: 1948
    • ICCPR/ICESCR opened for signature: 1966; Optional Protocols enabling communications: various dates post-1966
    • Rome Statute established: 2002; Australia is a State Party
    • CERD ratified by Australia: 1975; Racial Discrimination Act enacted: 1975
    • Statute of Westminster Act (external sovereignty developments) – relevance to domestic authority over external affairs; pre-1986 changes
    • Australia Act and symbolism of constitutional links to Britain via the monarchy; 1986
    • MIMA v Teoh: decision around legitimate expectations tied to international obligations (mid-1990s)
    • 2021: High Court case on refugee processing and interpretation of Migration Act; subsequent legislative changes

  • Practical study tips

    • Map the flow: (international obligation) → (domestic implementing legislation) → (domestic enforcement or interpretation)
    • Distinguish between: (i) incorporation and transformation; (ii) monism and dualism; (iii) ratification versus domestic ratification
    • Be ready to discuss: how Australian practice shows flexibility in integrating international norms while preserving parliamentary sovereignty and democratic accountability
    • Use the cases as tests of doctrine: e.g., Teoh for legitimate expectation; Nullaroomba for customary international law status; Mabo No. 2 for the use of international law in domestic development of common law; the 2021 migration case for interpretation and the consequences of statutory reform

  • Final reflections

    • International law remains an integral, though sometimes contested, influence on Australian domestic law
    • Legal professionals should understand both the normative framework and the practical procedural pathways (legislation, interpretation, and judicial development) through which international law operates in Australia