LAWS2250 Lecture Notes - Lecture 12: High Water Mark, Non-Refoulement, Judiciary Of Australia
International Law and Municipal Law
Sunday, 15 October 2017
22:29
International law does not prevail over domestic law in the domestic system
On the international plane, International law prevails over municipal law: Greco
Bulgarian Communities Case
Every state is subject to international law in relation to other states, but every state
governs its internal affairs by its own domestic legal system: Louis Henkin
The relationship between IL and ML
CJ French: the intersection between both are complex and difficult
How do IL become part of domestic law?
Monism (natural law) and Dualism (legal positivism)
oMonism: IL and DL are part of one system, generally applies in civil law
country
oDualism: IL and DL operate separately,
1. Incorporation
a. Once a IL norm is formulated, it becomes domestic law automatically
2. Transformation
a. Rules of IL is not part of domestic law unless and adopted by jduges,
parliament , or long established norm
b. Need an action to transform IL norm to domestic law
UK
‘[A]a treaty is not part of English law unless and until it has been incorporated into
the law by legislation’ (Parlement Belge, Maclaine Watson v Dept of Trade H&S 74-
75)
[T]he making of a treaty is an executive act, while the performance of its obligations
… requires legislative action. [T]he stipulations of treaty … do not, by virtue of the
treaty alone, have the force of law’ (Att.-Gen.for Canada v AG for Ontario Ld Atkin
H&S 76)
oNeed domestic legislation to transfer IL into UK Law
oParliamentary sovereignty
oIf the executives were able to ratify a treaty, for a treaty norm to become a
domestic law, the legislature needs to pass a legislation
oParliamentary action required
‘the law of nations, in its full extent was part of the law of England’ (Triquet v Bath
H&S 63-4); ‘the doctrine of incorporation is correct’ [regarding customary law]
(Trendtex D&McC 32)
oTriquet v Bath:
Whether central bank of Nigeria enjoys state immunity?
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Immunity does not apply to state entity which carrying
commercial transaction
Therefore that rule is part of British rule
Parliament is required to act to transform a treaty norm into domestic law
Customary norm automatically incorporated into British Law: Triquet
Transformation of a treaty norm
But Customary norm is incorporation
US
Qualified incorporation
Art.6 US Constitution: treaty norms automatically incorporated into US laws
oBecause of the requirement of consent Senate in the US for a treaty
Sei Fuji:
Where treaty provisions not detailed, then need further actions
Custom: IL is part of US law
oUS is one of incorporation
Treaty norms automatically incorporated into US law unless it is not self-executing
Australia
Teoh 1995:
oProvisions of international treaty must be transformed into municipal law
Australia is party to ICCPR and ICESCR, but these are not legislated
Horta:
oHC said no question of finding a treaty invalid, it is irrelevant to Aus law if the
treaty is transformed into Aus, then it is sufficient.
Tajjour 2014
oThe Cth's ratification does not affect the states to enact legislation contrary to
the Convention
oThe validity of State legislation is not dependent on its conformity with
international agreements made by the Cth where the agreement has not been given
effect by Cth legislation
oIf a treaty provision is not transformed, then it cannot be used in an Australian
Court
Direct effect when treaties are transformed into Aus
Parliament has final say , Parliament can repeal provisions of IL after it is transformed
Refugee Convention was transformed into Australian Law, but was later repealed and
modified and removed most of the effects
Chow Hung Ching:
oIncorporation theory did not apply to custom
oIL is a source of Australian law, but whether received and so becomes a
source of national law is a question
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