Disputes over Treaties

By Kerley, Bill | IPA Review, January 1, 1996 | Go to article overview

Disputes over Treaties


Kerley, Bill, IPA Review


Trick or Treaty? Commonwealth Power to Make and Implement Treaties; report of the Senate Legal and Constitutional References Committee, November 1995.

Treaty-Making and Australia: Globalization versus Sovereignty edited by Philip Alston and Madelaine Chiam The Federation Press in association with the Centre for International and Public Law, ANU, 1995

AUSTRALIA is currently party to about 920 principal international treaties, about 500 of which are bilateral. For some time, critics from industry, the com^ munity and politics have observed that many of these treaties impose obligations that are unclear, unwanted and, in some cases, even unknown to those most affected by them. Considerable disquiet now surrounds the whole issue.

These treaty obligations are usually incorporated in domestic law through new laws and regulations developed by the Commonwealth. However, even those not incorporated in this way, strongly influence our common law and judicial decisionmaking. This pervasive influence has been demonstrated by the Teoh case, amongst others.

This case (Minister of State for Immigration and Ethnic Affairs u Teoh, 1995) concerned the validity of a deportation order and the application of the Convention on the Rights of the Child, a convention which Australia has ratified but not incorporated into law through legislation. The High Court held that the ratification of the Convention created a "legitimate expectation" that a Commonwealth decision-maker would act in accordance with it. The court's ruling means, in effect, that any decisions and rules made by Commonwealth officials, courts or tribunals involving discretionary powers must be made with a thorough knowledge of the expectations established by any treaties Australia has ratified - an impossible requirement.

The Senate Committee report released last November was the result of a wide-ranging public inquiry which gathered a considerable amount of evidence reflecting a wide spectrum of views. The recommendations (outlined in the box below) are practical ones and, if adopted, will deliver more accountability and greater certainty to the treaty-making process.

Treaty-Making and Australia, which consists of papers from a conference at the Australian National University in May 1995, also provides a range of views on the place and importance of international treaties, but the contributors are mainly drawn from those interest groups, lawyers, academics and others with close professional interests in international law. Most of the contributors take the view that international law thoroughly dominates Australian law and practice. Many see this as a welcome, if not irreversible, trend. A typical view is put by David Kinley of the Australian Law Reform Commission: " ... as the web of international relations grows and the globalization of international law grows with it, so the application of the external affairs power will expand."

If so, then Australian law and judicial practice likely to continue to be adventurous, activist and uncertain, as international treaty obligations impact on domestic affairs and the constitutional balance. Justice Kirby's and David Kinley's papers in Treaty-making and Australia detail the influence of international obligations in many areas of Australian life.

SELECTIVE: International law activists, many of whom are represented in this volume, usually favour the imposition of international treaties to impose social rights and obligations. But they like to be selective. For example, Professor John Braithwaite, a leading activist in the consumer movement, disapproves of the Trade Related Intellectual Property Agreement (TRIPS), now under the GATT agreement. In his view, most countries had no idea of the implications of what they were signing.

But TRIPS is not the only agreement signed by Australia with farreaching and unforseen consequences. The Basel Convention on Transboundary Movements of Hazardous Wastes and Their Disposal, which Australia joined in 1992, is but one of many others. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Disputes over Treaties
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.