Lecture Notes on International Treaties and Their Implementation in Australia

Introduction

• Presenter: Renato Costa
• Focus: International treaties and their implementation in Australia

External Affairs Power

• Section 51(29) of the Commonwealth of Australia Constitution:
  • Allows for the implementation of international treaties.
  • A law under this section is valid if it is adapted to implement the treaty in good faith.
  • Partial implementation is possible if it gives effect to the treaty.
  • Peripheral regulation possible if it aids treaty obligations.

Understanding International Treaties

• Vienna Convention on the Law of Treaties (1969):
  • Australia acceded in 1974.
  • Article 2 Definition: Agreement between states, in written form, governed by international law.
  • Treaties include conventions, pacts, protocols.
  • Non-state actors like territories can also conclude treaties.
  • Key elements:
    1. Concluded between states
    2. In written form
    3. Governed by international law

Distinction in Agreements

• States can have agreements not governed by international law (e.g., commercial).
• International treaties must be governed by international law.

Implementation of Treaties

Monist vs Dualist Systems

• Monist Countries: International law becomes domestic automatically.
• Dualist Countries: International law needs domestic acceptance to take effect.
• Australia:
  • A dualist state.
  • Treaties require Federal Parliament legislation to become domestic law.

Legislative Process in Australia

• Commonwealth Executive can make treaties.
• Federal Parliament must legislate for domestic implementation.
• External Affairs Power (Section 51(29)):
  • Used to translate international obligations into domestic law.

Legal Framework

• Treaties have no domestic effect without implementing legislation.
• Historical case: Tasmanian Dam case:
  • Any treaty can become law if enacted domestically, even if not of international concern.

Conclusion

• Unincorporated treaties are not sources of rights or obligations in Australia.
• Need for federal legislation for international treaties to affect domestic law.
• Call to action: Explore related content on nationality acquisition.