One of the four aspects of the external affairs power is the implementation of international treaties. According to the High Court of Australia, a law is valid under section 51 29 if it is reasonably adapted to the implementation of the treaty. That is, if it conforms or gives effect to the international treaty and it is enacted in good faith for the pursuit of the obligations of that treaty.
But a treaty may also be implemented partially. if this implementation still substantively gives effect to the treaty. And it is also possible to regulate some peripheral aspects not directly dealt with by the treaty, as long as they pertain to the effective implementation of the treaty's obligation. Great, we know a lot about the implementation of international treaties. But how does that actually happen?
Or even what characterizes an international treaty? Hello everyone, my name is Renato Costa, this is Aussie Law and today we'll talk about international treaties and the process for their implementation in Australia. The first place that you have to go to when you're trying to study the law of treaties is the Vienna Convention on the Law of Treaties from 1969, also known as the VCLT.
Australia acceded to this treaty in 1974. According to Article 2 of the VCLT, treaty means an international agreement concluded between states in written form and governed by international law, whether embodied in a single document or in two or more related instruments and whatever its particular designation. So, when we talk about international treaties, conventions, pacts, protocols, etc. It's all encompassed here.
And although the definition says states, it is a matter of international customary law that intergovernmental organizations and some non-state units like territories and even states in a federation may also conclude treaties. But basically the legal definition has three elements. It is 1 concluded between states, 2 in a written form and 3 recognized by international law.
A treaty is an international agreement between sovereign nation-states in a form that attests their intention to create legal relations recognized and governed by international law. Now, it is also possible for states to conclude agreements among themselves that are, for example, commercial in nature without necessarily being governed by international law. It is important to notice that the international treaty will always have this characteristic. of being intentionally governed by international law.
Otherwise, the contract may have the character of domestic law, even if between different nation-states. Okay, now, let's say that two or more countries decided to agree on a particular topic that is internationally relevant, and they concluded a treaty to that effect. Now, what?
There are two paths here. Some countries are monists, and others are dualists. Monist countries are those in which the international law will be applicable immediately to the domestic law because the two systems are actually like one.
If the crown or let's say a president of a country signs an international treaty and if the treaty is validly concluded according to its own rules then the international law becomes the law of the country. In a monist state domestic law and international law they belong to the same legal system. In a In a dualist state, however, the international law will only take effect if the domestic law accepts it.
International law and domestic law belong to distinct legal orders and, as such, what is decided in one does not intervene with the other. Under the common law, the Crown has the prerogative to enter into treaties. But to preserve the separation of the executive and the legislature, Parliament will have to agree to the decision of the Crown. in the form of an enacted domestic legislation that implements that treaty.
Many common law countries are dualist countries because of that. Australia, in fact, is a dualist state. So here, even though a treaty may be made by the Commonwealth Executive, it will only take effect domestically if the Federal Parliament accedes to it.
Since Australia is a dualist country, it is necessary for the Federal Parliament to legislate with respect to the international treaty so that the covenant can take effect in the country. The basis for legislating this federal law will be Exactly, section 5129 of the Commonwealth of Australia Constitution, the External Affairs Power. And this is the nub of the whole video, actually.
Treaties are not directly incorporated into Australian law merely by ratification or acceptance at the international level. A federal law is needed, enacted under a proper constitutional head of power to translate that international law obligation into domestic law. The application of international law in Australia is dependent upon the rules of common law and statute. The opposition in Australian law, at least since the time of Federation, is that while the capacity to enter into international treaties is an aspect of the prerogatives of the Crown, such treaties have no domestic effect as law without the sanction of implementing legislation.
The external affairs power of section 5129 as it has been interpreted by the courts then, provides the avenue for international law to become domestic law in Australia. And, at least since the Tasmanian Dam case, any international treaty on any topic, even if not necessarily relating to matters of international concern, but as long as it is made in good faith, can become valid law in Australia, if they are enacted as domestic law by the Federal Parliament following the implementation of international treaties aspect of the external affairs power of section 51 29 being a dualist country the dealings of the Commonwealth of Australia and international law level are not self executing and are thus not binding to give rights or impose duties at the domestic level it is necessary for international law to be translated into domestic law by the enactment of federal legislation which can be done under the External Affairs Power Section 5129 of the Constitution. So, in Australia, unincorporated treaties cannot be relied upon as a valid source of rights or obligations, nor can they be relied upon to provide individuals accused of an offence under domestic law with a valid defence or providing immigrants with certain rights within Australia.
Well, and since we are talking about international law, aliens nationals, why don't you check out the video that is appearing on your screen about the acquisition of nationality in Australia. I'll see you there. Tchau.