NO COUNTRY IS AN ISLAND docx

WILLIAMS CHARLESWORTH CHIAM HOVELL NO COUNTRY IS AN ISLAND International law is more immediately relevant to Australian politics, law and our everyday lives than we imagine As this important book shows, international law has a growing significance for trade, human rights, crime, terrorism and climate change Australia’s leading international law and constitutional law experts explain the mechanics of engagement between Australia’s system of government and international law They look at the ideologies and controversies that inform Australian debates about international law and its practice They examine recent cases where international law has had a role, such as the Iraq war, the negotiation of the US–Australia Free Trade Agreement, the International Criminal Court and the detention of David Hicks at Guantanamo Bay This is a highly readable, timely and important book It shows that, while international law can seem remote, Australia is inescapably integrated into the global community This gives rise to an urgent need to understand international law and to ensure Australia’s engagement with the international legal order is as transparent as possible CHARLESWORTH MADEL AINE C H I A M DEVIK A H O V E L L GEORGE W I L L I A M S HIL ARY UNSW PRESS NO COUNTRY IS AN ISLAND UNSW PRESS Australia and International Law NO COUNTRY IS AN ISLAND HILARY CHARLESWORTH is a Professor at the Regulatory Institutions Network and Director of the Centre for International Governance and Justice at the Australian National University where she also holds an appointment as Professor of International Law and Human Rights at the Australian National University College of Law MADELAINE CHIAM is a Research Fellow and Lecturer at the Centre for International and Public Law at the Australian National University College of Law DEVIKA HOVELL is Director of the International Law Project at the Gilbert + Tobin Centre of Public Law at the University of New South Wales GEORGE WILLIAMS is the Anthony Mason Professor and Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales He also practises as a barrister No man is an island, entire of itself Every man is piece of the continent, a part of the main – John Donne, Meditation XVII, 1624 NO COUNTRY IS AN ISLAND AUSTRALIA AND INTERNATIONAL LAW HILARY CHARLESWORTH MADELAINE CHIAM DEVIKA HOVELL GEORGE WILLIAMS UNSW PRESS A UNSW Press book Published by University of New South Wales Press Ltd University of New South Wales Sydney NSW 2052 AUSTRALIA www.unswpress.com.au © Hilary Charlesworth, Madelaine Chiam, Devika Hovell & George Williams 2006 First published 2006 This book is copyright Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission Inquiries should be addressed to the publisher National Library of Australia Cataloguing-in-Publication entry No country is an island: Australia and international law Includes index ISBN 86840 906 International law - Australia Sovereignty Australia - Foreign relations - 2001- I Charlesworth, H.C (Hilary C.) 341.0994 Design Ruth Pidd Cover artwork Guan Wei, Dow: Island National Gallery of Australia Print Griffin Press CONTENTS Acknowledgments Abbreviations vi viii ONE The politics of international law TWO International law and the mechanics of engagement 24 THREE Human rights FOUR Trade 106 FIVE No country is an island 144 Appendix 161 64 Table of cases 161 Table of statutes and treaties 163 Further reading 168 Index 170 ACKNOWLEDGMENTS This book is a product of a collaborative project funded by the Australian Research Council on the relationship between international law and the Australian legal system The change in the Australian public’s attention to international law during the life of the project, prompted by events such as the Iraq war, international criticism of Australia’s refugee policy, the signing of a free trade agreement with the United States and the continuing ‘war against terror’, has been remarkable This book seeks to inspire further interest in and understanding of this complex relationship Rather than providing a theoretical account of the relationship between international law and the Australian legal system, we have sought in this book to investigate how the relationship works in practice In the process, we have encountered stories of political manoeuvrings and individual idealism, and we have identified some of the external factors that influence decision-making in this area We would like to thank the many people we interviewed who assisted us in gaining an insight into the complex business of treaty-making and compliance Particular thanks are owed to Professor Andrew Byrnes, Emeritus Professor Max Charlesworth, Christopher Michaelsen and Dr Thomas Poole, who generously gave us detailed comments on a draft of the manuscript Felicity Chard and Elizabeth Southwood provided valuable research and proofreading assistance Acknowledgments [ vii ] We would also like to thank our colleagues at the Australian National University and the University of New South Wales who have provided us with stimulating intellectual environments in which to work The staff of the Centre for International and Public Law at the Australian National University College of Law, the Regulatory Institutions Network in the Research School of Social Sciences at the ANU and the Gilbert + Tobin Centre of Public Law at UNSW have given us great support Special thanks go to Belinda McDonald who provided excellent administrative assistance Finally, our grateful thanks go to the Australian Research Council for the generous funding of this book, and the project that preceded it Hilary Charlesworth Madelaine Chiam Devika Hovell George Williams ABBREVIATIONS AFTINET APEC ASEAN ASIO AUSFTA CEDAW Cth DFAT DSB GATT ICC ICCPR ICESCR ICJ ILO JSCOT MAI MOU Australian Fair Trade and Investment Network Asia–Pacific Economic Cooperation Association of South-East Asian Nations Australian Security Intelligence Organisation Australia–United States Free Trade Agreement Convention on the Elimination of All Forms of Discrimination Against Women Commonwealth Department of Foreign Affairs and Trade World Trade Organization Dispute Settlement Body General Agreement on Tariffs and Trade International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Labour Organization Joint Standing Committee on Treaties Multilateral Agreement on Investment Memorandum of Understanding Abbreviations [ ix ] NIA NSW OECD PBS SCOT UK UN UNHCR UNICEF UNIDO US WTO National Interest Analysis New South Wales Organisation for Economic Co-operation and Development Pharmaceutical Benefits Scheme Standing Committee on Treaties United Kingdom United Nations United Nations High Commissioner for Refugees United Nations Children’s Fund United Nations Industrial Development Organization United States World Trade Organization [ 162 ] No Country is an Island Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 Victoria v Commonwealth (1996) 187 CLR 416 Western Australia v Ward (2002) 213 CLR 61 62 50 South Africa Brink v Kitshoff [1996] SALR 197 Prinsloo v Van der Linde [1997] SALR 1012 S v Makwanyane [1995] SALR 391 21 21 21 United Kingdom A and others v Secretary of State for the Home Department [2004] 104 UKHL 56 United Nations Human Rights Treaty Bodies A v Australia (560/1993) 30 March 1997 Bakhtiyari v Australia (1069/2002) November 2003 Cabal and Bertran v Australia (1020/2001) 19 September 2003 Hagan v Australia (26/2002) 14 March 2003 Rogerson v Australia (802/1998) 15 March 2002 Toonen v Australia (488/1992) March 1992 UN Doc CCPR/C/59/ D/560/1993 UN Doc CCPR/C/79/ D/1069/2002 UN Doc CCPR/C/78/ D/1020/2001 UN Doc CERD/C/62/ D/26/2002 UN Doc CCPR/C/74/ D/802/1998 UN Doc CCPR/C/50/ D/488/1992 Winata v Australia (930/2000) 18 August 2001 UN Doc CCPR/C/72/ D/930/2000 85, 102 84, 102 84, 102 90, 103 84, 102 54, 59, 82, 83, 102 84, 102 United States Hamdan v Rumsfeld 344 F Supp 2d 152 (DDC 2004) In re Guantanamo Detainee Cases, ‘Memorandum Opinion Denying In Part and Granting In Part Respondents’ Motion to Dismiss or for Judgment as a Matter of Law’, United States District Court for the District of Columbia (31 January 2005) Rasul v Bush 542 US 466 (2004) 104 94 94, 104 Continued over Appendix [ 163 ] WTO Dispute Settlement Body Australia–Automotive Leather, WTO Panel Report, WT/DS126/R, 25 May 1999 Australia–Automotive Leather, WTO Panel Report, WT/DS126/RW, 21 January 2000 Australia–Salmon, WTO Panel Report, WT/DS18/R, 12 June 1998 Australia–Salmon, WTO Appellate Body Report, WT/DS18/AB/R, 20 October 1998 Australia–Salmon, Arbitration under Article 21.3(c), WT/DS18/9, 23 February 1999 Australia–Salmon, Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, 18 February 2000 140 140 140 140 140 140 Table of statutes and treaties Statutes Australia Australian Security Intelligence Organisation Act 1979 (Cth) Constitution of Australia Criminal Code Act 1995 (Cth) Extradition Act 1988 (Cth) Geneva Conventions Act 1957 (Cth) Genocide Convention Act 1949 (Cth) Human Rights (Sexual Conduct) Act 1994 (Cth) International Criminal Court Act 2002 (Cth) International Criminal Court (Consequential Amendments) Act Migration Act 1958 (Cth) Mutual Assistance in Criminal Matters Act 1987 (Cth) 98 6, 24, 37, 38, 48, 49, 50, 51, 52, 53, 54, 61, 70, 149, 150, 159 70 38 70, 95 33 54 29, 38 70 51 38 Continued over [ 164 ] No Country is an Island Native Title Act 1993 (Cth) Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) 86 70 70 South Africa Constitution of South Africa 1996 6–7, 21 United Kingdom Statute of Westminster 1931 (UK) 23, 40 United States American Service-Members Protection Act 2002 (US) 21 Treaties Agreement between Australia and Egypt Regarding Cooperation on the Welfare of Children, opened for signature 22 October 2000, [2000] ATNIF 12 (not yet in force) Agreement between His Majesty’s Government in London and the Government of the Commonwealth of Australia and the Government of the Dominion of New Zealand concerning the Mandate for the Administration of the Island of Nauru, opened for signature July 1919, [1920] ATS 16 (entered into force August 1920) Agreement Governing the Activities of States on the Moon and other Celestial Bodies, opened for signature December 1979, 1363 UNTS 22 (entered into force 11 July 1984) Agreement on Social Security with Canada, opened for signature 26 July 2001, [2003] ATS (entered into force January 2003) Agreement with Vietnam on the Reciprocal Promotion and Protection of Investments, opened for signature March 1991, [1991] ATS 36 (entered into force 11 September 1991) Australia New Zealand Closer Economic Relations Trade Agreement, opened for signature 28 March 1983, [1983] ATS (entered into force January 1983) Australia–United States Free Trade Agreement, opened for signature 18 May 2004, [2005] ATS (entered into force January 2005) 26 62 27 26 26 26 46, 56, 58, 59, 80, 107, 108, 112, 113, 114–138, 139, 141, 148, 149, 153, 154, 155 Continued over Appendix [ 165 ] Charter of the United Nations, opened for signature 26 June 1945, 11, 22, [1945] ATS (entered into force 24 October 1945) 33, 66, 100, 145 Convention Against the Illicit Traffic in Narcotic Drugs and 18 Psychotropic Substances, opened for signature 20 December 1988, 1582 UNTS (entered into force 11 November 1990) Convention Against Torture and other Cruel, Inhuman or Degrading 68 Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS (entered into force 26 July 1987) Convention Concerning the Protection of the World Cultural 53 and Natural Heritage (World Heritage Convention), adopted 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975) Convention for the Suppression of Unlawful Acts against the Safety 27 of Civil Aviation, opened for signature 23 September 1971, 947 UNTS 178 (entered into force 26 January 1973) Convention on the Elimination of All Forms of Discrimination 35, 68, Against Women, opened for signature 18 December 1979, 1249 70 UNTS 14 (entered into force September 1981) Convention on the Elimination of All Forms of Racial 27, 68, Discrimination, opened for signature March 1966, 660 UNTS 70, 85, 212 (entered into force January 1969) 87 Convention on the Prevention and Punishment of the Crime of 33, 68, Genocide, opened for signature December 1948, [1951] ATS 70 (entered into force 12 January 1951) Convention on the Prohibition of the Development, Production, 27 Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 13 January 1993, 1975 UNTS 270 (entered into force 29 March 1997) Convention on the Protection of the Rights of All Migrant Workers 68 and Members of Their Families, opened for signature 18 December 1990, 22 UNTS 93 (entered into force July 2003) Convention on the Rights of the Child, opened for signature 20 68 November 1989, [1990] ATS (entered into force September 1990) Convention relating to the Status of Refugees, opened for signature 68 28 July 1951, [1954] ATS (entered into force 27 April 1954) Convention relating to the Status of Stateless Persons, opened for 27 signature 28 September 1954, [1960] ATS 20 (entered into force June 1960) Continued over [ 166 ] No Country is an Island Cultural Agreement between Australia and France, opened for 26 signature 20 June 1977, [1978] ATS (entered into force 27 April 1978) Framework Convention on Tobacco Control, opened for signature 27, 28, 21 May 2003, [2005] ATS 8, (entered into force 27 February 61 2005) General Agreement on Tariffs and Trade, opened for signature 30 106, 108, October 1947, 55 UNTS 188 (entered into force 30 May 1950) 109, 110, 111, 112 Geneva Convention for the Amelioration of the Condition of the 94, 95 Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Geneva Convention for the Amelioration of the Condition of the 94, 95 Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) Geneva Convention Relative to the Protection of Civilian Persons in 94, 95 Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) Geneva Convention Relative to the Treatment of Prisoners of War, 94, 95 opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) International Convention for the Regulation of Whaling, opened for 27 signature December 1946, 161 UNTS 74 (entered into force 10 November 1948) International Covenant on Civil and Political Rights, opened for 29, 39, signature 16 December 1966, 999 UNTS 172, (entered into 54, 67, force 23 March 1976) 68, 69, 82, 83, 85, 89, 92, 98, 155, 156 International Covenant on Economic, Social and Cultural Rights, 29, 39, opened for signature 16 December 1966, 993 UNTS (entered 67, 68, into force January 1976) 169 International Labour Organization Convention (No 158) 53 concerning Termination of Employment at the Initiative of the Employer, opened for signature 22 June 1982, 1412 UNTS 160 (entered into force 23 November 1985) Continued over Appendix [ 167 ] Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 37 ILM 22 (1998) (entered into force 16 February 2005) Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature February 2003, 42 ILM 26 (2003) (not yet in force) Optional Protocol to the Convention on the Elimination of Discrimination against Women, UN Doc A/54/49 (Vol I) (2000) (entered into force 22 December 2000) Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force July 2002) Single Convention on Narcotic Drugs, opened for signature August 1975, 976 UNTS 106 (entered into force August 1975) Treaty of Westphalia: Peace Treaty between the Holy Roman Emperor and the King of France and their Respective Allies (entered into force 24 October 1648) Treaty on Extradition between Australia and the Republic of Turkey, opened for signature March 1994, [2003] ATS 24 (entered into force 16 November 2003) UN Convention Against Corruption, opened for signature November 1999, 2246 UNTS (entered into force November 2003) UN Convention on the Law of the Sea, opened for signature 10 December 1982, 1834 UNTS (entered into force 16 November 1994) UN Framework Convention on Climate Change, opened for signature May 1992, 1771 UNTS 165 (entered into force 21 March 1994) 31, 32, 44, 116, 156 45 35, 88 32, 82, 83, 155, 156 28, 29, 39, 43, 49, 56, 59, 65, 70, 71– 82, 99, 100, 101, 114, 125, 126, 128, 139, 147, 155 18 145 26 38, 42, 62 33 31 Continued over FURTHER READING Philip Allott, The Health of Nations: Society and Law beyond the State (2002) Philip Alston & Madelaine Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty? (1995) Alex J Bellamy & Marianne Hanson, ‘Justice beyond borders? Australia and the International Criminal Court’ (2002) 56 Australian Journal of International Affairs 417 Sam Blay, Ryszard Piotrowicz & B Martin Tsamenyi (eds), Public International Law: An Australian Perspective (2nd edn, 2005) Jutta Brunnée & Stephen J Toope, ‘A hesitant embrace: Baker and the application of international law by Canadian courts’, in David Dyzenhaus (ed.), The Unity of Public Law (2004) Ian Callinan, ‘International law and Australian sovereignty’ (July/August 2005) Quadrant Ann Capling, All the Way with the USA: Australia, the US and Free Trade (2004) Antonio Cassese, International Law in a Divided World (1986) Antonio Cassese, Paolo Gaeta & John RWD Jones, The Rome Statute of the International Criminal Court: A Commentary (2002) Hilary Charlesworth, Madelaine Chiam, Devika Hovell & George Williams, ‘Deep anxieties: Australia and the international legal order’ (2003) 25 Sydney Law Review 423 ——, (eds), The Fluid State: International Law and National Legal Systems (2005) Madelaine Chiam, ‘Government decision-making and international law: Australia and the Framework Convention on Tobacco Control’ (2003) 24 Adelaide Law Review 217 ——, ‘Evaluating Australia’s treaty-making processes’ (2004) Public Law Review 265 Department of Foreign Affairs and Trade, Australia and International Treaty Further reading [ 169 ] Making Information Kit ——, Human Rights Manual (3rd edn, 2004) Stephen Donaghue, ‘Balancing sovereignty and international law: the domestic impact of international law in Australia’ (1995) 17 Adelaide Law Review 213 Stewart Firth, Australia in International Politics (2nd edn, 2005) Daniel Flitton, ‘Perspectives on Australian foreign policy, 2002’ (2003) 57 Australian Journal of International Affairs 37 Alan Gyngell & Michael Wesley, Making Australian Foreign Policy (2003) Ghassan Hage, Against Paranoid Nationalism: Searching for Hope in a Shrinking Society (2003) Devika Hovell, ‘The sovereignty stratagem: Australia’s response to UN Human Rights Treaty Bodies’ (2003) 28 Alternative Law Journal 297 Devika Hovell & Grant Niemann, ‘In the matter of David Hicks: a case for Australian courts?’(2005) 16 Public Law Review 116 Devika Hovell & George Williams, ‘A tale of two systems: the use of international law in constitutional interpretation in Australia and South Africa’ (2005) 29 Melbourne University Law Review 95 Robert Howse & Makau Mutua, ‘Protecting human rights in a global economy: challenges for the World Trade Organization’, International Center for Human Rights and Democratic Development, Policy Paper, 2002 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2004) David Kinley (ed.), Human Rights in Australian Law (1998) Christopher Michaelsen, ‘Anti-terrorism legislation in Australia: a proportionate response to the terrorist threat?’ (2005) 28 Studies in Conflict and Terrorism 321 Brian Opeskin & Donald Rothwell, International Law and Australian Federalism (1997) Jeremy Rabkin, Law without Nations? Why Constitutional Government Requires Sovereign States (2005) Patricia Ranald, ‘Analysing the bonds of the Australia–US Free Trade Agreement’ (2004) Journal of Australian Political Economy 148 Kevin Ryan (ed.), International Law in Australia (2nd edn, 1984) Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules (2005) Shirley Scott, ‘Is there room for international law in Realpolitik?: accounting for the US “attitude” towards international law’ (2004) 30 Review of International Studies 71 Ivan Shearer, Starke’s International Law (12th edn, 2003) Kristen Walker, ‘International law as a tool of constitutional interpretation’ (2002) 28 Monash University Law Review 85 Linda Weiss, Elizabeth Thurbon & John Matthews, How to Kill a Country: Australia’s Devastating Trade Deal with the United States (2004) Spencer Zifcak, Mr Ruddock Goes to Geneva (2003) INDEX Abbott, Tony 78 Albrechtsen, Janet 149 Allott, Philip 20 Alston, Richard 78 Annan, Kofi 16 Australia and international law community, Australian 15, 57 courts 49–52 customary international law, effect of 33–34 executive 36–40 external affairs power 38, 52–53, 151 history of relationship 24–25, 38–39, 149–150 human rights see human rights; Human Rights Committee states, Australian see states, Australian treaties, effect of 29 United States alliance, impact of 10–11, 14, 16, 80–81, 146–147 Australia–United States Free Trade Agreement confidentiality of 118–119, 134, 139 implementing legislation 133, 135–138 Joint Standing Committee on Treaties (JSCOT) Inquiry 129– 135, 139 media, local content rules 118, 124, 128, 136–138 negotiation of 116–118 opposition, role of 127, 136–137 parliament, role of 129, 135–138, 139, 155 Pharmaceutical Benefits Scheme 118, 124, 128, 131, 132, 136–138 public consultation 119–122 public information 126, 127–128 public response 127–128 reasons for entry into 115 Senate Committee Inquiry 121, 122, 123 Senate Select Committee Inquiry 129–135, 136, 139, 154 states, consultation with 56 Bishop, Bronwyn 74 Bishop, Julie 74–75 Blix, Hans 10, 12 Buckley, Ross 127 Bush, George W 9, 10, 115, 125, 126 Callinan, Justice Ian 50 Index [ 171 ] Capling, Ann 127 Carr, Bob 17 Cassese, Antonio 144–145 Committee on Elimination of Racial Discrimination, United Nations Concluding Observations of 86 Australian Government response to 86–87 Conroy, Stephen 128 Cook, Peter 129 Corell, Hans 80 Cosgrove, General Peter 75 courts see judges and judiciary Crean, Simon 13 customary international law 32–34 codification of 33 definition 32 domestic law, effect in 33–34, 49–50 Dauth, John 80 Deady, Stephen 46, 132 Della Bosca, John 18 democratic deficit 5, 25, 45, 47, 54, 112, 135, 140, 149, 153, 155 discrimination racial 86 sexuality 54, 82–83, 89 domestic law, effect of international law in see international law Downer, Alexander International Criminal Court, role in supporting 72, 74, 76, 77, 78, 80, 125 Iraq war 10 multilateralism, approach to 16, 17 sovereignty, invocation of 90, 99 Drahos, Peter 128 drug-injecting rooms (NSW) 17–19 East Timor 35, 65 Ellison, Chris 96 Evans, Gareth 65, 69–70 Evatt, HV executive and international law Attorney–General’s Department 38 external affairs power 38 general powers 37, 135, 153 role of 36 Federal–State relations see States, Australian Fraser, Malcolm 29, 39, 69 General Agreement on Tariffs and Trade see World Trade Organization genocide 33–34, 70 Gleeson, Chief Justice Murray 149 Guantánamo Bay military commissions 93–97 release of detainees 95 United Kingdom, approach of 93–94, 96, 98 United States citizens 95 United States courts, approach of 94 see also David Hicks; Terrorism, War against Henderson, Gerard 127 Hicks, David 91–98 charges against 93 deference to United States about 96–97 jurisdiction of Australian courts over 94–96 see also Guantánamo Bay; Terrorism, War against Hill, Robert 78 Howard, John 12, 15, 16, 17, 18, 77, 78, 87, 97, 115, 116, 125, 126, 127, 137, 145, 146 human rights attitudes towards 8, 29, 65–66, 69, 70, 90, 99–100 bill of rights 64, 69–70 Commission on Human Rights (United Nations) 65, 67 derogate, right to 92–93, 98 diplomatic protection, right of 94–95 [ 172 ] No Country is an Island enforcement of 67–68 history of 66–68 national security, balancing with 91–93 purpose of 111–112 ratification of treaties 68 trade, comparison with 8, 100, 107, 111–112, 139, 146, 149 see also Committee on Elimination of Racial Discrimination; Discrimination; Human Rights Committee; Human Rights treaty bodies Human Rights Committee, United Nations children, mistreatment of 84 decisions, non-binding 84–85 decisions, publication of 89 effectiveness 60 family life, right to 84 government response 59, 83–85 individual complaints 59, 82–84, 89 opposition, reasons for 89–90 prisoners, inhumane treatment of 84 privacy, right to 82–83 refugees 83, 84 undue trial delay 84 Human Rights Treaty Bodies, United Nations 82–91 government response 59, 83–85, 86–89 opposition, reasons for 89–90 reform measures 88, 89 withdrawal, threatened 87–88 see also Committee on Elimination of Racial Discrimination; Human Rights Committee implementing legislation Australia–United States Free Trade Agreement 133, 135–138 human rights treaties 69, 70 International Criminal Court 76, 79–80, 155 timing 48, 154–155 see also parliament, commonwealth indigenous peoples 86 instruments of less-than-treaty status 30–32, 156 International Court of Justice 35–36, 68 International Criminal Court 71–82 debates about 74–75, 77 cabinet discussion on 78 coalition meetings about 76, 78 complementarity 71 Declaration, Australia’s 71–72, 78, 80 entry into force 76 implementing legislation 76, 79–80, 155 Joint Standing Committee on Treaties (JSCOT) inquiry 73–76 jurisdiction of 71 like-minded group 65, 72 media 76 national interest analysis 73 negotiation of 124 parliament, role of 72–73, 79 ratification of Rome Statute 78–79 sovereignty and 77, 79 United States, position of 78, 80–81 international institutions 34–36 international law anxiety about 6, 50, 149 approaches to 5, 17–19, 146 constitution, Australian 49, 51 customary international law see customary international law domestic law, effect in 29, 30, 33–34, 49–51 drug-injecting rooms see druginjecting rooms (NSW) international institutions see international institutions scope of 25, 150 sovereignty see sovereignty treaties 26–30 Index [ 173 ] use of force, legality of 11 Iraq war 9–17 Al-Qaida 10 legality of 11, 15, 16 parliament, role of 25 public response to 15 reasons for 9–10 Security Council resolutions 11, 12, 13 United Kingdom 16 United Nations involvement 10, 14 US alliance, significance of 10–11, 14 weapons of mass destruction 10 Ives, Ralph 118 Joint Standing Committee on Treaties (JSCOT) Australia–United States Free Trade Agreement see Australia–US Free Trade Agreement bilateral treaties 46, 134 chair, nomination and role of 73–75 constitution of 43 control, governmental 76, 81, 129, 132, 156 effectiveness of 75, 81, 135, 152 establishment of 42 instruments of less-than-treatystatus 31–32, 156, 158–159 International Criminal Court see International Criminal Court limitations of 45, 156 powers of 43 process of 43–44 public consultation by 58 recommendations of 45 submissions to 59, 130–131 reforms, suggested 158–159 reports by 43, 130–131 timing 46, 133–135, 152, 156– 157 judges and judiciary attitude to international law 5–6 role, limitations on 49, 51–52 separation of powers 50, 91 Kirby, Justice Michael 50 Labor Party, Australian international law, approach to 5, 17–19, 146 Hawke government 52, 69–70 Keating government 53, 54, 55, 83 Iraq war and 13 US alliance, approach to 14 Whitlam government 69 Lasry QC, Lex 97 Latham, Mark 136, 137 Liberal–National Coalition foreign policy of 14 Fraser government 69 international law, approach to 5, 146 McClelland, Robert 15 Menzies, Sir Robert 40, 151 military commissions see Guantánamo Bay Minchin, Nick 77, 78 Neville, Paul 77 Panopoulos, Sophie 77 parliament, commonwealth 1996 treaty reforms 41–43, 47– 48, 153–154 Australia–United States Free Trade Agreement see Australia–US Free Trade Agreement implementing legislation 29, 48, 154–156, 157–158 International Criminal Court 72–73, 79 Joint Standing Committee on Treaties see Joint Standing Committee on Treaties reforms, suggested 154–159 role in relation to international law 25, 40, 72–73, 79, 129, 135–138, 139, 153–158 [ 174 ] No Country is an Island tabling of treaties in 41 Powell, Colin 12 Savage, Chas 96 Scheiffer, Tom 115, 137 Security Council, United Nations binding decisions 34 enforcement of human rights 67 Iraq war 11, 12, 13 Smith, Mike 65 South Africa, role of international law in 6–7 sovereignty anxiety about 2, 5, 64, 128–129, 144 cooperative view 20 definitions 144–145 misuse 2, 3, 20, 81–82, 90–91, 99–100, 145–146 see also human rights, trade states, Australian 1996 treaty reforms, impact of 55, 151 external affairs power 52, 53, 57 ministerial councils 56 New South Wales 17–19, 56 Principles and Procedures for Commonwealth–State Consultation on Treaties 55, 56, 57 Queensland 56 Standing Committee on Treaties 56 Tasmania 52–53, 54, 59, 82–83 Treaties Council 56, 151 Swan, Wayne 79 security, right to 92 see also human rights; Hicks, David; Guantánamo Bay Thomson, Andrew 73 trade benefits for Australia 111 bilateral 107, 114–115 General Agreement on Tariffs and Trade see World Trade Organization history 108–109 human rights, comparison with 8, 100, 107, 111–112, 139, 146, 149 individuals, role of 124–126 most-favoured nation, principle of 109 multilateral 106–107 non-discrimination, principle of 108–109 opposition to 107 regional 107 sovereignty and 110–111, 128– 129 World Trade Organization see World Trade Organization see also Australia–United States Free Trade Agreement; World Trade Organization treaties bilateral 26, 107, 134 declarations 28 definition 26 domestic law, effect in 29 implementation of 29 multilateral 26, 27, 106 National Interest Analyses of 41, 151–152 process, becoming bound by 27 reservations to 28 statistics 26 tabling in parliament 41 Terrorism, War against domestic legislation 98 national security, balancing human rights with 91–93, 98 United Nations Australian approaches towards 14, 16, 38, 65, 146, 153 depositary, role as 28, 80 Rabkin, Jeremy 7–8 reforms, 1996 41–43, 47–48, 56, 144, 148, 153–154 Roosevelt, Eleanor 66 Rudd, Kevin 14, 15 Ruddock, Philip 78, 85, 91, 92, 97 Index [ 175 ] Iraq war, involvement in 10, 12, 13, 14, 15, 16 United States and 7, 12 see also Committee on Elimination of Racial Discrimination; Human Rights Committee; Human Rights Treaty Bodies; International Court of Justice; Security Council United States alliance with Australia 10–11, 16, 146–147 approach to international law Europe, comparison with exceptionalism 7, 147 International Criminal Court, attitude to 7, 77–78, 80 use of force, legal regime relating to 11 Vaile, Mark 78, 111, 116, 124, 125, 126 Vanstone, Amanda 78 Von Doussa QC, John 98 Wilkie, Kim 75 Wilkins, Richard G 77 Williams, Daryl 78 World Trade Organization dispute settlement body 36, 109–110 entry into, Australia’s 112–113 General Agreement on Tariffs and Trade 108–109, 110–111 history 108–109 legitimacy 8, 107 sovereignty 110–111 trade-related regulations 111 Zimbabwe 65 WILLIAMS CHARLESWORTH CHIAM HOVELL NO COUNTRY IS AN ISLAND International law is more immediately relevant to Australian politics, law and our everyday lives than we imagine As this important book shows, international law has a growing significance for trade, human rights, crime, terrorism and climate change Australia’s leading international law and constitutional law experts explain the mechanics of engagement between Australia’s system of government and international law They look at the ideologies and controversies that inform Australian debates about international law and its practice They examine recent cases where international law has had a role, such as the Iraq war, the negotiation of the US–Australia Free Trade Agreement, the International Criminal Court and the detention of David Hicks at Guantanamo Bay This is a highly readable, timely and important book It shows that, while international law can seem remote, Australia is inescapably integrated into the global community This gives rise to an urgent need to understand international law and to ensure Australia’s engagement with the international legal order is as transparent as possible CHARLESWORTH MADEL AINE C H I A M DEVIK A H O V E L L GEORGE W I L L I A M S HIL ARY UNSW PRESS NO COUNTRY IS AN ISLAND UNSW PRESS Australia and International Law ... Merkel, in dissent on this point, [ 34 ] No Country is an Island recognised principles of customary international law as a source of Australian common law As there was no Australian law that... WILLIAMS is the Anthony Mason Professor and Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales He also practises as a barrister No man is an island, entire... misconceptions and double [ ] No Country is an Island standards As subsequent chapters will show, the debate often revolves around all-or-nothing positions about the relationship between Australian and