Domestic Versus International Laws: Comparative Analysis

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Introduction to Domestic and International Laws

Laws are systems of rules which are enforced in countries and states to control behavior. Domestic law is the name given to the law or legal system within a specific country, whilst International Law is the body of law that governs the relationship between multiple nations. These systems are created, applied, and enforced in different ways, however, they have similar functions and interact to influence each other through manners such as treaties. Although, there are certain restrictions placed on laws, particularly international, because of state sovereignty. This means that international legislation is not binding, and can not be enforced unless it has been ratified by signatory countries. Domestic laws also have limitations; as international law always prevails. Both domestic and international laws can also be influenced by external organizations, including the United Nations Educational, Scientific, and Cultural Organization and Amnesty International. These organizations have the power and duty to reflect the opinions of people within our society, placing political pressure on nations, thus influencing domestic and international law.

The Sovereignty of States and Domestic Law Creation

Domestic laws are made from legislature, created by a group of people within one country, or are otherwise known as a law of a state. Countries have the ability to make these laws if they are autonomous or independent state that has sovereignty. State sovereignty is applicable to any political division with a definite territory, permanent population, an effective government, and a capacity to enter into international negotiations. This concept recognizes states as independent entity’s on an international basis, and ensures equal rights amongst different areas. State sovereignty also means that independent states have the right to dismiss international laws if they wish to. A sovereign state may recognize the fundamental human rights as listed in the Universal Declaration of Human Rights and then enact them into domestic legislation as seen in the Australian Racial Discrimination Act 1975. Although, they may decide to dismiss certain international conventions. For instance, Australia does not conform with the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, or the International Convention for the Protection of All Persons from Enforced Disappearance. They are subject to dismiss these international laws or conventions because of state sovereignty. However, if a country agrees with international law or treaty and chooses to conform with it, they sign it, showing their intention to be bound by the statements, provisions, and obligations. Once signed, the treaty will only be implemented into the state’s domestic law when the state ratifies it, through domestic legislation. This confirms that the state and its population are bound by the conditions placed on it by the treaty. Therefore, domestic laws affect one particular nation or population of people and can be made because of state sovereignty. However, they can be influenced by international laws and overlooked by systems of higher authority.

The Australian Legal System: A Case Study of Domestic Law

The Australian Legal System is an example of a system of domestic law. The current legal processes implemented in Australia are known as a ‘common law system’, derived from the model developed during British Colonialism. In 1788, when the British came to Australia, they applied the law that was followed in Britain, known as common law. Common laws are legal interpretations of acts and the following precedent decisions, made by a judge in court. An example of common law may include a rule made by a judge, stating that people have a right to read contracts. The statute law system, on the other hand, is the law that has been made by parliament. It is commonly known as ‘legislation’ or ‘Acts of Parliament. In Australia, all parliaments, including state, territory, and federal governments have the right to make statute laws. An example of statute law includes the Crimes Act 1914. The Australian Constitution displays the authority of state and federal parliaments, in regard to making statute laws. It is a document that outlines the basic framework and rules which concern the governance of Australia. Before the Constitution existed, Australia was made up of six colonies, all independent of each other with the right to govern their own borders. These colonies were all looked over by the British government, as there was no authority in Australia. After much debate, the constitution was passed by the British Parliament as part of the Commonwealth of the Australian Constitution Act 1900, taking effect on the 1st of January 1901. The disinclination of states to give complete control to the Commonwealth is clearly displayed in Chapter 1, Part V of the Constitution (s 51 to 60). Section 52, in particular, describes the exclusive powers of the federal government. These incorporate areas of trade and commerce with other countries, foreign relations (external affairs), and national defense, and can only be held by federal governments. This means that only the Commonwealth parliament is allowed to legislate on the seat of government of the Commonwealth, matters relating to any department of the public service (controlled by the Commonwealth), and other matters declared to be within the exclusive power of the Parliament by the Constitution. Thus, the Australian legal system is a prime example of domestic law.

International Law: Governing Relations Between Nations

On the other hand, International Law is the system of law that controls the relationship between nations. International Law allows nations to participate in trade and commerce, regulating behavior between countries. International law can originate from sources such as declarations, customs, legal decisions, treaties, and legal writings. It also provides a basis for fundamental human rights, ensuring that it is considered illegal to commit acts like torture and genocide. Without international law, there would be a greater likelihood of conflict occurring between nations. The recognition of global interdependence creates a world community, providing one of the motivating forces for following international law. International law takes precedence over the power of states, particularly in Australia because commonwealth law prevails. This is evident in section 109 of the Constitution which states that federal law overrides state laws. For instance, in the case of “Whaling in the Antarctic, Australia, and New Zealand (intervening) v Japan, Judgment, ICJ GL No 148, ICGJ 471 (ICJ 2014), 31st March 2014, International Court of Justice [ICJ]” there was an issue where international laws and domestic laws conflicted with one another. In this specific case, Japan’s laws authorized licenses allowing the killing of whales. However, these actions breached obligations concerning the International Convention for the Regulation of Whaling. Due to these circumstances, the International Court of Justice abided by the concept that states international law always prevails over domestic laws. Although, there are still many ways in which international law can be criticized. One of the main criticisms of international law is that it does not have enough power to impose constraints addressed in the law, among members of society. This is evident through the variety of examples seen around the world, where states breach international law, particularly within the area of human rights. For instance, international laws were unable to prevent genocide that occurred in Rwanda in the 1990s and remain incapable of preventing crimes against humanity, which have been conducted since 2003 in the Darfur region of Sudan. As a result, international law relies on countries cooperating in the enforcement of set laws. Furthermore, another reason why law is adhered to is because it is commonly accepted across an entire community. The world is made up of many diverse communities, with different values, cultures, and religions. This means that not all countries will agree with international laws and may ignore those not in their interest. Therefore, international is powerful as it obtains the authority to prevail of domestic laws, however, it can be criticized for its ability to enforce its treaties/agreements.

Differences in Creation, Application, and Enforcement of Laws

The key differences between domestic and international laws relate to the way they are created, applied, and enforced. Unlike domestic law, international law only applies to nations that agree to be bound by the law, whilst domestic law is applicable to all. In Australia, domestic laws are universal, meaning they are made to be followed by all people. The idea that no one is above the law is one of the main foundations of the legal system. On the other hand, the legal principle of state sovereignty applies to international law. This principle allows countries to decide which laws they agree to be bound by. Furthermore, international law is made through negotiations between nations, whereas domestic laws are created by the ruling of judges or parliament. In the event that a new international law is proposed, each nation must decide whether they intend to participate. If they decide that they agree with the law, a national representative will sign it before it is ratified into the countries domestic law. Then, the country is said to be a party to international law and is obliged to follow it. Finally, domestic and international laws are enforced in different ways. Domestic laws are encouraged by police and other agencies, ensuring that all members of society abide by the rules. Whereas international law permits countries to consider themselves exempt from a law if they wish to, and therefore cannot be enforced in the same way. Thus, it is evident that although domestic and international laws can interact and influence each other, they are extremely different concepts, especially in terms of the way they are applied, created, and enforced.

Influence of Intergovernmental Organizations on Laws

Domestic and international laws can also be influenced by intergovernmental and non-governmental organizations. Intergovernmental organizations are networks that represent government members of multiple nations. These organizations have their own international laws and regulations. One international organization that heavily influences international and domestic law is the United Nations. The United Nations was formed with its main aim being to establish and maintain world peace, developing positive relations between states whilst recognizing equal rights. International law is considered one of the primary concerns of the UN. This is evident in the UN charter which states that a key goal of the organization is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. UNESCO is a specialized agency of the UN, which stands for The United Nations Educational, Scientific and Cultural Organization. Its ultimate aim is to contribute to peace and security by encouraging international collaboration through educational, scientific, and cultural reforms in order to increase universal respect for justice, the rule of law, and human rights along with freedom, as indicated in the United Nations Charter. UNESCO influences law by creating mechanisms such as conventions and treaties, which directly impact and influence a variety international and domestic laws. Therefore, UNESCO is an established intergovernmental organization which directly focuses on positively influencing laws on domestic and international levels.

UNESCO’s Impact on Laws Through the World Heritage Convention

The United Nations Educational, Scientific and Cultural Organization has created many mechanisms which impact international and domestic laws, such as the World Heritage Convention. In 1972, UNESCO adopted the World Heritage Convention; an international agreement, concerned with the protection of the world’s cultural and natural heritage. The agreement is based on the idea that places on Earth of outstanding universal value, should form part of the common heritage of humankind. The countries who ratify this Convention have become part of an international agreement, united in a common mission to identify and protect the world’s most valuable natural and cultural heritage sites. An example of a case that UNESCO influenced through its World Heritage Convention is the “Commonwealth vs Tasmania (1983) HCA 21 (‘Tasmanian Dam Case’)”. At the time, Tasmania wanted to build a hydroelectric dam on the Franklin and Gordon river system, however, a group of environmentalists protested against this proposal because of the area’s environmental value. However, Tasmania argued back, saying that the building of this dam was a residual power. Like the protesters, the federal government also recognized the river as a region of significance and listed it under the World Heritage Convention as a World Heritage Site. The federal government passed the World Heritage (Property Conservation) Act 1983 (Cth), which highlighted that areas of environmental value should be protected, with this particular river being included as one such area. This meant that there was now a state law allowing the construction of the dam, and a federal law demanding that it should be stopped. When taken to the high court, the court ruled that the federal government was validly using the external affairs power of the Constitution (s 51 (xxix)) which gives it authority to legislate on any matter of international concern. The High court held that the Commonwealth had the power to make laws that govern conduct in Australia. Under section 109, the federal law would override state law, stating that ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Because of this, the construction of the dam was stopped and the Franklin River was ultimately preserved. This clearly displays how UNESCO was able to influence laws, through its adoption of the World Heritage Convention. This convention acted as a mechanism that impacted international laws and domestic laws and rights. It also shows how international law takes precedence over the power of states in Australia because Commonwealth law always prevails. Thus, The United Nations Educational, Scientific and Cultural Organization is extremely effective in positively influencing international and domestic laws, through its ability to create mechanisms such as the World Heritage Convention. This is evident throughout the Tasmanian Dam Case.

The Role of Non-Governmental Organizations: Amnesty International’s Influence

Non-governmental organizations are nonprofit organizations that operate independently, focusing on common interests and aims. These organizations are unable to be recognized under international law and therefore have no legal role. However, non-governmental organizations are still able to influence laws by applying political pressure to nations, encouraging them to abide by international laws and make changes to domestic law. A prime example of a non-governmental organization that has influenced both domestic and international law is Amnesty international. The organization was created in London during 1961 after an article titled “The Forgotten Prisoners” was published by a lawyer named Peter Benenson. Amnesty International primarily focuses on promoting human rights, with their main mission being to end the abuse of integrity, freedom of expression, and freedom of discrimination. They regularly campaign for compliance with international laws and standards, encouraging countries to make important changes to domestic laws. Therefore, Amnesty International is capable of influencing laws through its ability, as a well-known organization to place political pressure on countries.

Amnesty international has influenced international and domestic laws on a number of occasions. According to the 2018 Amnesty Report by Roxanne Moore, “Historic Day for Queensland: 17- year-olds out of adult prisons”, the Queensland Parliament recently passed a bill that will mean 17-year-olds are no longer held in adult prisons or tried as adults in the justice system. Amnesty International played a significant role in the achievement of this by putting political pressure on parliament to amend these laws. Specifically, Amnesty put many submissions forward to parliament/government, wrote numerous letters to decision-makers, and held lobbying meetings. Amnesty brought this to the attention of the Queensland population, who joined the campaign, emailing politicians from the Queensland parliament and addressing their opinions on this issue. After facing this political pressure from Amnesty activists, the Queensland parliament announced that it would be introducing a Bill that aims to end the treatment of 17-year-olds as adults in the justice system. The Bill passed 43 to 41 votes, leading to a permanent change in Queensland law. This would not have been achieved without Amnesty International’s service, for the organization was the source which exposed the horrific conditions in Queensland youth detention and placed political pressure on the government to make a change. Therefore, Amnesty International is effectively able to influence both domestic and international laws, as a non-governmental organization.

Conclusion: The Interaction and Influence Between Domestic and International Laws

To conclude, domestic law and international laws are different due to the way they are created, enforced, and applied within political areas. However, they can still interact to influence each other through treaties and other legal manners. Domestic and International can also be influenced by intergovernmental and non-governmental organizations. These may include networks such as the United Nations and Amnesty international due to their power to reflect the values of people in society and place pressure on nations to amend laws.

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