The Australian legal system is not an island, and Australian law has felt the influence of law and legal ideas from other jurisdictions, particularly other common law countries. Australian law has also been shaped by public international law both directly and indirectly and this interaction has become increasingly important as the scope and content of international law have grown. The relationship between Australian law and international law is mediated by Australia’s constitutional framework in which the separation of powers between the executive, legislature and the courts holds central place. Unlike the constitutions in many other legal systems, the Australian Constitution does not address the relationship between international and domestic law, and most of the relevant legal principles are to be found in the common law. This chapter examines how each arm of government in Australia has engaged with international law, identifying areas where the relationship is well settled (as it is in relation to treaties) and areas where there remains some uncertainty (as in relation to customary international law).

This chapter examines how parties to treaties give effect to them in their domestic (internal) law. Every treaty in force is binding upon the parties and must be performed in good faith (pacta sunt servanda). A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. A state should therefore adopt any domestic legislation necessary to give effect to the treaty before it consents to be bound. There are two broad approaches to implementation of treaties, depending on a state’s constitutional provisions: monism and dualism. The essence of monism is that a treaty may, without legislation, become part of domestic law once it has been concluded and has entered into force for that state. The practice of France, Germany, The Netherlands, Russia, Poland and Switzerland is examined. Under the dualist approach, the rights and obligations created by treaties have no effect in domestic law unless legislation is in force to give effect to them. UK constitutional practice is examined, together with the interpretation and application of treaties by UK courts. US practice is similarly analysed.

[31.1] Australia’s international obligations are not enforceable through legal action by a person in Australia unless those obligations are incorporated into domestic legislation. If a statute does incorporate all or part of an international agreement, then, subject to a contrary intention in the statute, it is a principle of interpretation that the words in the statute are presumed to bear the same meaning as they do in the international agreement. However, even where a statute does not incorporate text from an international agreement, Australia’s international obligations may still influence the interpretation of domestic legislation. A long-established common law principle provides that, in cases of ambiguity, a construction of a statute that is consistent with Australia’s international obligations should be preferred to a construction that is not. This refers to Australia’s obligations at the time of enactment of the domestic legislation.

A quick glance through history demonstrates that it has not always been an unbroken chain of human happiness, to put it mildly.Different individuals, groups and peoples have faced persecution for any number of reasons: where they came from, how they looked, their perceived (dis)ability, who or what they believed in, who they loved, how they identified, the family they were born into, or, in some cases, for no reason at all. It is against this backdrop that our current set of human rights has emerged. While this chapter focuses primarilyon children’s rights and their relationship with education and educator obligations, it is necessary to understand the history of rights in order to understand why human rights, and particularly children’s rights, are so important to the work we do as educators.

This chapter describes how judicial bureaucrats characterize the state conduct or measure that gave rise to the proceedings. That characterization is a value-laden exercise whereby discrete aspects of reality are captured into the gravitational fields of the various courts and tribunals. In its normal course, state action is irreducibly pluralistic and does not lend itself to univocal labels: no domestic measure is ever only about ‘borders’, ‘investment’, or ‘human rights’. Yet, labels are necessary to attract the measure to the jurisdiction of this or that institution. The choice of the terms by which one describes state conduct determines the normative prism through which one looks at it, and reflects a struggle for appropriation among competing fora.

This Chapter develops an explanatory framework which organises approaches to deference in international adjudication according to how each approach structures the relationship between international and domestic decision-making authority. Section A introduces the range of domestic decisions referred to by adjudicators. It examines how adjudicators confront domestic judicial decisions, domestic decisions on domestic law, and domestic policy decisions in international private property claims. Section B organises the results of this analysis, identifying seven different ‘modes’ of deference. These range from the treatment of domestic decisions as controlling on international adjudicators (‘conclusive domestic authority’), to rejections of deference to domestic decisions entirely (‘conclusive international authority’). Between these two extremes, deference to domestic decisions also at times resulted in a suspension of the exercise of international decision-making authority (‘suspensive domestic authority’), or in a more concurrent operation of domestic and international authority (‘concurrent authority’). These distinct approaches are explored in more detail in Chapters 5 to 7.

A third set of approaches to deference disclose a concurrent view of authority. In the modes of ‘restraint’, ‘reference’, and ‘respect’, authority provides non-exclusionary second-order reasons for action. Second-order reasons for recognising domestic decision-making authority are treated akin to a request, rather than an order. Second-order reasons for reaching a particular decision are balanced alongside first-order reasons, rather than displacing them. Adopting this view of authority, the adjudicator is able to assert its own decision-making authority, whilst also acknowledging the decision making authority of other actors. This Chapter examines three modes of deference that reflect this understanding of the interface between domestic and international decision-making authority: the modes of deference as restraint, deference as reference, and deference as respect. Each of these approaches to deference differs from those considered in Chapters 5 and 6, because in each the adjudicator engages (even if only in a limited way) with the available first-order reasons for decision despite having recognised second-order reasons to defer to a domestic actor’s decision-making authority.

At the core of the settlement of investor–State disputes, there is a dialectic between the facts and the law. The legal component of this dialectical exercise draws our attention to two issues in particular: the law to be applied in the settlement of disputes and the interpretation of international investment agreements (IIAs). Each of these issues is analysed in turn in Chapter 12. For applicable law, it provides an analysis of the choice of substantive applicable law and the content thereof. It then sheds light on how arbitration tribunals interpret IIAs, specifically what means they employ and how these are used to interpret those agreements. It focuses in particular on the means of interpretation explicitly mentioned in the Vienna Convention on the Law of Treaties, i.e. the general rule of interpretation, supplementary means of interpretation and the rules pertaining to the interpretation of treaties authenticated in two or more languages.

Chapter 5 addresses the potential role of domestic courts and mechanisms in the adjudication and award of reparations for international crimes. It draws from existing studies in the field and examines the role that domestic courts may have in adjudicating claims of reparations for international crimes. It analyzes these questions through case studies of domestic reparations for international crimes in Bosnia and Herzegovina where the international criminal tribunal did not have a reparative dimension. It also provides a unique contribution through a timely discussion of the development of universal civil jurisdiction, including the challenges, recent case law from different countries and the United States through the Alien Tort Claims Act (ATCA), as well as recent decisions by US courts limiting its jurisdictions on the ATCA. With this chapter, the book provides a careful survey and analysis of the intricacies of international, national, and administrative mechanisms that are being developed to address reparative justice for international crimes, their unique challenges and some suggestions on how reparative justice for international crimes should develop.