International Law is the universal system of rules and principles concerning the relations between sovereign states, and relations between States and international organisations such as the United Nations. The modern system of international law developed in Europe from the 17th century onwards and is now accepted by all countries around the world. International law is concerned with the rights and duties of States in their relations with each other and with international organisations where as Domestic law, is within a State and is concerned with the rights and duties of legal persons within the State. This essay will evaluate how international impacts on Australian Domestic Law.
State sovereignty implies a state’s ability to govern its own internal affairs without outside interference, while protecting its claim to equality in the society of states. Enshrined in Art 2 of the UN Charter, sovereignty provides the basis and remains at the heart of all state interaction in the modern world. The nature of international law is very different to domestic legal structures. Considering how this impacts international human rights, sovereignty does not always become an issue. If human rights abuses occur within a particular state that is governed by laws that protect human rights, the victims are given recourse through domestic institutions. The incorporation of international law is the process by international agreements which become part of the municipal law of a sovereign state. A country incorporates a treaty by passing domestic legislation that gives effect to the treaty in the national legal system. Whether incorporation is necessary depends on a country's domestic law.
A case on State Sovereignty is the Democratic Republic of the C...
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...mination in the workplace focusing on Indigenous people and so on. In the late 1970’s the Queensland government claimed the Murray Islands of Torres Strait as a part of Queensland, and prohibited Islanders the use of their land and from practicing traditional law. In 1982, Eddi Koiki right of the Queensland government to do this. Eventually he took this case to high court. He argued that his people had occupied the Murray Islands for a long time and had become too known as the ‘Mabo decision’; the high court overruled the terra nullius notion. The idea of terra nullius was a declaration in the 19th century by the British Parliament that Australia was not inhabited by anybody who could claim to have ownership of the land. The ‘Mabo Decision’ meant that Aborigines could claim to crown land where it could be proven that continued occupation and use had occurred.
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
The National Apology of 2008 is the latest addition to the key aspects of Australia’s reconciliation towards the Indigenous owners of our land. A part of this movement towards reconciliation is the recognition of Indigenous Australians and Torres Strait Islanders rights to their land. Upon arrival in Australia, Australia was deemed by the British as terra nullius, land belonging to no one. This subsequently meant that Indigenous Australians and Torres Strait Islanders were never recognised as the traditional owners. Eddie Mabo has made a highly significant contribution to the rights and freedoms of Indigenous Australians as he was the forefather of a long-lasting court case in 1982 fighting for the land rights of the Torres Strait Islanders. Eddie Mabo’s introduction of the Native Title Act has provided Indigenous Australians with the opportunity to state claim to their land, legally recognising the Indigenous and the Torres Strait Islanders as the traditional owners.
The connection Indigenous Australians have with the land was established, and maintained, by The Dreamings, passed down through generations binding Indigenous Australians to the land (National Film & Sound Archive, 2015). National Film & Sound Archive (2015), highlight that land and being can not be separated for Indigenous Australians as they form part of the land and are accountable for the preservation of the land. Indigenous Australian land rights originated from an intricate social process constructed on traditional core values; where the rights of the land were established on principles of descendants, kinship and marriage (Dodds, 1998). However, despite this, the British colonisation of Australia in 1788 brought about change when the land was declared Terra Nullius (Short, 2007). Short (2007) stated that as a result of Australia being declared Terra Nullius, Indigenous Australians had no legitimate claim to their land. Hence, British colonisers dispossessing Indigenous Australians of their land rights as the customs established by Aboriginal and Torres Strait Islander people were not recognised or taken into consideration by the British Government (Short,
The Doctrine of terra nullius is “land that is uninhibited” or “land that belongs to no-one” was used in association with the original British Settlers. When the British settlers arrived, a lot of issues had risen as they ignored the indigenous Australians and regarded them as “not human” who owned land even though they had practiced traditions and customs for hundreds and thousands of years. The British treated Australia as terra Nullius. However due to the doctrine of Terra Nullius it states that Indigenous Australians could not sell or assign any land, nor could any individual person to retain or acquire it, besides from the distribution of royalty. According to international law the British were only able to take possession of a country through only 3 different ways. 1- If the country was uninhabited meaning that British could claim ownership of that land 2- if the country was inhabited Britain would have to seek permission from the owners of the land. In this case it would be the Aboriginal people and they would have to purchase it for ...
Furthermore, due to the relationship between states and international law, some states have incorporated some aspects of international law into their domestic laws. For example, states such as the United Kingdom (UK) and the United States America (USA), have adopted the 1951 Convention Relating to the Status of...
Carl Schmitt once stated, “The protego ergo oblige” (n.d); meaning I protect therefore I oblige. This is the basis of a key aspect of International Relations: Sovereignty. Theoretically, it can be defined as the supreme power or authority. Sovereignty as a concept plays a critical role in maintaining international order however has been interpreted in several different ways; its context in theory and in reality. In order to appreciate Sovereignty, defining the term ‘state’ is essential. A state is essentially a structured political society, existing under a government. Consequently, State Sovereignty is a state with a definite territory and a government where domestic and international sovereignty is practised permitting the associations with other sovereign states. This may be divided into the two categories of State Sovereignty: Domestic Sovereignty and International Sovereignty. The former, otherwise referred to as Internal Sovereignty, deals with the internal affairs of a state, focusing on how it functions and the relationship of dependency between the sovereign power and its own citizens. Every state has political institutions acknowledged by the citizens essentially: The Executive, Judiciary and Legislature that solely concentrate on governing the state, making laws and protecting its citizens from external harm. The latter argues that states acknowledge the existence of other states through diplomatic relations while emphasising that no state has higher authority than the other due to anarchy. This is absence of a supreme international power. Derived from The Westphalian model in 1648, the European rulers agreed to halt intrusion in one another’s domestic affairs after a 30-year war. International Sovereignty asserts that...
International legal personality may entitle a subject of international law in order to have the power to make international agreements, enjoy various privileges and immunities, bring legal claims to enforce international legal rights and be under certain international legal obligations. ‘Subjects’ of international law are defined in Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep. 174, where the ICJ stated that “subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community..” Under the long-established rule, subjects of international law are considered to be sovereign states, however, numerous International Governmental Organisations possess international legal personality for specific purposes, also individuals have been given delimited forms of of international legal personality.
Moreover, different norms and rules of different territorial states may contradict and cause problems between them. However some scholars say it is a solution for the consequences that may be caused to a nation from another nation. Another advantage of customary international law is that even if it has been existing for a very long time, it is still being practiced by many different states universally. Customary international law is not prioritised in any way over the treaties, instead they both co-existed. The third source of public international law is the General Principles of law, which is mainly based on the basic ‘natural law’, meaning the normal law that nature enforces on us simply stating what is wrong and what is right, and its main objective is equality and justice. Nations that practice this type of law are called the ‘civilised nations’ as it was mentioned in the UN charter, article 4. The fact that it is valid to all different societies, and communities is counted as an advantage for the general principles of law. The general principles of law is usually
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...
Von Galhn and Taulbee. 2013. Law Among Nations. An Introduction to Public International Law. Pearson Education.
International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.
The study of international relations takes a wide range of theoretical approaches. Some emerge from within the discipline itself others have been imported, in whole or in part, from disciplines such as economics or sociology. Indeed, few social scientific theories have not been applied to the study of relations amongst nations. Many theories of international relations are internally and externally contested, and few scholars believe only in one or another. In spite of this diversity, several major schools of thought are discernable, differentiated principally by the variables they emphasize on military power, material interests, or ideological beliefs. International Relations thinking have evolved in stages that are marked by specific debates between groups of scholars. The first major debate is between utopian liberalism and realism, the second debate is on method, between traditional approaches and behavioralism. The third debate is between neorealism/neoliberalism and neo-Marxism, and an emerging fourth debate is between established traditions and post-positivist alternatives (Jackson, 2007).
International Law has been around for ages although it had yet to be titled. The definition of international law is “, the legal responsibilities of States in their conduct with each other, and their treatment of individuals within state boundaries” (“Global Issue at the United Nations”). Although international law can be traced back to the ancient Middle East, the foundation was not actually set till the European Renaissance. The Renaissance developed sovereignty and nation states which make it the most similar international legal system in history in comparison to today's legal system. The Europeans enacted treaties with other states and laws that all states agreed to follow in order to keep boundaries, just as the modern world does today. According to International Law, The Charter of the United Nations sets the objective “, to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained” (“Charter, United Nations, Preamble” ).International law is no longer exclusively used in states but in countries all over the world. The League of Nations wa...
International law depends on a huge part on the consent of states. Provision of this consent by states emerges from a complex communication process. The process of communication and negotiation typically leads to certain outcomes. One such result of this process is in the mode of an explicit treaty, which imposes certain obligations on states (Bethlehem 2008, 14). The treaty law constitutes a major part of the modern international law. In addition to treaties, other agreements and documents serve as guidelines on how states should behave. It is vital to note that these guidelines are not necessarily legally binding. There are many sources of international laws and states choose to interpret and adopt them in different degrees. The international classification of international law is for...
Before we delve deeper into this topic, it is imperative to properly provide a definition of sovereignty and lay down some foundation on this topic. There are four different definitions of sovereignty – international legal sovereignty, Westphalia sovereignty, domestic sovereignty and interdependence sovereignty. International legal sovereignty deals with “the practices associated with mutual recognition, usually between territorial entities that have formal juridical independence” (Krasner 4). The main definition of sovereignty that this paper will use is the ...