international law Flashcards
domestic law
system of law which operates within one country
application - universal and applies to all
enforcement - law enforcement agencies exist, such as the police to enforce the law
creation - made by parliament or the rulings of judges
international law
system of law which governs relationships between countries
application - applies only to those nations that agree to be bound by the law
enforcement - ICJ but countries are permitted to exempt themselves from cases
creation - made through negotiations between nations
two types of international law
private: rules which govern the rights of individuals who cross national boundaries ( citizenship, marriage, travel, business contracts)
public: rules which govern relationships between countries
state
another word for nation or country
a state is an independent entity or body that can enter into relations and be recognized internationally
state requirements
- a permanent population
- a defined territory
- an effective government ( supreme power imposed on population )
- capability to enter into international negotiations
state sovereignty
sovereignty is the power of a state to do everything necessary to govern itself
limitations of international law
- nations cannot interfere with each other’s sovereignty
- international law is based on agreement and cooperation
three sources of international law
- international customary law
- instruments ( declarations and treaties
- legal decisions, writings
treaties
an international agreement concluded between States in written form and governed by international law
two types of treaties
- bilateral: formal agreement between two states
- multilateral: a formal agreement between three or more states
conventions and declarations
a treaty which is agreed to and proclaimed by a large number of nations
conventions: regulate a particular aspect of international law
declarations: are similar and is usually a resolution of the united nations
customary international law
principles and procedures that have been generally used to the point that they are accepted as being fair and right by the international community
Jus Cogens
principle of international law that can not be contradicted by any nation
any treaty that goes against customary law that is jus cogens is declared invalid
legal decisions in international law
decisions are made by international organisations such as the UN and the ICJ
legal writings
writings of international lawyers, judges or despected journalosts or politicians, can be used as advisory notes by ICJ judges
united nations
- 1945 after WW2
- mission: the maitenance of international peace and security
key functions of the un
- protect human rights
- deliver humanitarian aid
- promote sustainable development
- uphold international law
general assembily
- the main deliberative, policymaking and representatie organ of the un
- 193 member states
security council
- the secuirty council has primary responsibility for the maitanance of inetnational peacce and security
- it can approve peacekeeping missions, impose sanctions, or authorise the use of force when there is a threat to international peace and security
- 15 members ( 5 permanent ) ( 10 changed every 2 years )
- 5 have power of vito ( if one doesnt agree something can not happen )
- china
- france
- russia
- the uk
- us
economic and social council
- the principal body for coordingation, policy review, policy dialouge and recommendations on economic, social and environmental issues
- implementation of internationally agreed development goals
courts and tribunals
- settle disputes between nations
- the international court of justice ( ICJ )
ICJ
- all members of the un are entitled to take matters before the ICJ
- before engaging, the nations involved must recognize the right of the court to settle the dispute and accept their decision
- can not enforce its decision in the same way as domestic
- reduces the effectiveness of the ICJ
the jurisdiction of the court recognized in three ways
- a special agreement, when an agreement is given in relation to a specific dispute
- a clause in a treaty, there are more than 300 international treaties that nominate the ICJ to resolve disputes between the signatories
- a unilateral declaration, some nations have agreed to accept the jurisdiction of the ICJ in all members
war crimes tribunals
- special international courts established on the basis to try individuals accused of war crimes and crimes against humanity
- important so individuals act within the rules of war
ICC
international criminal court
- 2002
- permanent court and deals with individuals accused of the most serious international crimes ( genocide, against humanity, serious war crimes)
- ICC will not hear a case currently being investigated by another body unless the investigation is not genuine
intergovernmental organizations (IGO)
- organs of UN
- bodies established to meet and decide upon certain topic and issues within international laws, such as refugees and wealth
- example of IGO:
ECOSOC
EU
nongovernmental organizations (NGO)
- these organizations are separate from the Un and government but usually have their support
- as these organizations are not recognized under international law, cannot bring matters before the ICJ
- pressure nations to abide by international law
relevance to contemporary Australian law
- Australia has an active role in international law
- one of the founding members of the UN
treaty process in Australia ( ext affairs )
(section 51 xxix the external affairs power) 51, 29 of the constitution.
- allows international signing of treaties
treaty steps in Australia
STEP 1 - a mandate to enter a treaty
- minister who wants to create or enter a treaty must seek permission from the minister of foreign affairs or cabinet
STEP 2 - ministerial and executive council approval ( once terms and conditions have been finished)
- lead minister seeks agreement from the minister for foreign affairs, the attorney general, and any minister that will be affected by the treaty
STEP 3 - signature
- once the federal executive council has given its approval, a treaty may then be signed
STEP 4 - review by parliament
- both houses of parliament then review the treaty
STEP 5 - ratification
- the treaty must be ratified at a domestic and international level
a. domestic ratification - if any changes are required to domestic law or procedures and policies are required, legislation will be introduced into the federal parliament to implement the treaty in Australian domestic law
b. international ratification - international act whereby Australia expresses its consent to be bound, an expression that Australia accepts the terms of the treaty including any qualifications or reservation
