International Law Recognition in Australia

International law is the system of rules and principles concerning the relations between sovereign states, and relations between each state and international organisations such as the United Nations.

Sources of International Law

There are rules of international law that all states are required to observe. This includes rules prohibiting slavery and torture, the use of force, and piracy on the high seas, and the right to self-determination. Such a basic principle of international law, jus cogens, in latin ‘compelling law’, is also known as a peremptory norm.

 Other sources of international law are:

  • international conventions and treaties
  • international custom
  • general principles of law
  • judicial decisions and teachings of highly qualified publicists of various nations

The International Court of Justice (ICJ), which is the principal judicial organ of the United Nations, is authorised to consider these sources when deciding disputes. A decision of the Court has no binding force except between parties and in respect of that particular case: Article 59, Statute of the International Court of Justice. This list does not prevent the ICJ from considering other matters, such as resolutions of the General Assembly of the UN, and it does not identify all the sources of international law.

The United Nations

The UN was established in 1945, with 51 members, including Australia. As at September 2000 it has 189 members. The purposes of the UN are: 

  • to maintain international peace and security,
  • develop friendly relationships between states,
  • achieve international co-operation in solving international problems, and co-ordinate and harmonise actions to achieve these ends. (Article 1, UN Charter)

The UN Charter established six main organs of the UN:

  • Security Council
  • General Assembly
  • International Court of Justice
  • Secretariat
  • Trusteeship Council
  • Economic and Social Council.

How does International Law Become Part of Domestic Law?

There are two principal theories that explain how international law becomes part of domestic law:

  • incorporation – international law is regarded as being part of domestic law, and so the rules of international law automatically become part of domestic law unless they conflict with domestic laws.
  • transformation – international law and domestic law are separate bodies of law and the rules of international law can only become part of domestic law through some positive act of the state. The laws of each state determine which approach applies in that state. In some states, such as the Netherlands, France, and Switzerland, ratification of treaties results in their incorporation into domestic law, often with a status superior to ordinary national law. In other states, including Australia, the rules of international law are not incorporated into domestic law automatically.

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