International law is largely made by governments through treaties. The US Senate votes on treaties. If they pass, they become law. If not, the US is no longer party to the treaty. Our Parliament has a Joint Standing committee on Treaties that can provide feedback to the government, which the latter can ignore. Domestic implementation has to wait on legislation that may never come or may look very different from the Treaty.

Given the increasing importance of international law, a greater role for Parliament is overdue. First, if a treaty is unacceptable to the Treaties Committee, the Committee should recommend that it should not be ratified. Both Houses of Parliament should, within six months, be required to consider and determine whether the recommendation should be accepted. A convention should be established that governments should not formally ratify treaties without parliamentary approval. This parallels the approach to subordinate legislation.

If the Treaties Committee recommends ratification, then it ought to be incorporated into our law by legislation. If the government does not introduce such legislation within twelve months, the Government should justify why it is not legislating what we have internationally agreed to. Any MP who wants to promote legislation to include a treaty into domestic law should be guaranteed time to move a private member’s bill and assistance by the Parliamentary Draftsman to draft it.

This should be a firm policy going forward and a special commission should be set up to go through past treaties to identify those that have not been fully enacted into Australian law and make recommendations to the Parliament on whether the treaty should be enacted or not.

There are many treaties that Australia has ratified that we have not honoured domestically (especially the International Refugee Convention over our treatment of refugees and the United Nations Charter over our participation in the 2003 Iraq War). There are many other examples, from the contempt of the International Court of Justice to the failure to establish an integrity commission type body under the Convention Against Corruption.[i]

One of our oldest commitments is to abjure aggressive war through the Kellogg-Briand ‘Pact of Paris’ from 1928. In 2002, Australia signed up to the Rome Statute. That treaty set out four crimes, including three for crimes committed during a war and one for starting a war.[ii] However, the International Criminal Court was not able prosecute that crime until the signatories met to agree the definition of the crime and the conditions for the exercise of jurisdiction in the Kampala Review Conference of the Rome Statute States Parties in 2010. Forty states have signed up to the amendment and it became binding on them in 2018 (the 90th anniversary of the Pact of Paris). Australia has not ratified the amendment and has not introduced legislation to give it effect. It is truly shocking that we have ratified the sections that apply to our soldiers fighting wars but not to those sections that apply to political leaders who start them – without which there would be no opportunities for war crimes.

At the same time, Australia should restore its full acceptance of the ‘compulsory jurisdiction’ of the International Court of Justice (ICJ). From 1975 to 2002, Australia agreed to accept suits from any other country that likewise accepted the ICJ’s compulsory jurisdiction. In 2002, it amended its acceptance of compulsory jurisdiction with respect to seabed disputes and only accepted suits from countries that had accepted the compulsory jurisdiction for at least 12 months. The first blocked suits from East Timor on the major issue between our two countries. The second blocked suits from Iraq in the war that commenced a year later. Whether or not the latter was accidental, Australia should either reverse those decisions or recant its rhetoric about an ‘international rules based order.’

These matters should be considered urgently by the Treaties Committee.

[i] United Nations Convention against Corruption Adopted by the UN General Assembly 31 October 2003, by resolution 58/4 (entered into force 14 December 2005) art 36.

[ii] UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998

Recommendation 2

Parliamentary Oversight and Scrutiny of Treaties: If a treaty proposed by the government is acceptable to the Treaties Committee, it should be ratified and enacted into domestic law. If it is unacceptable to the Treaties Committee, it should not be ratified. Australia should restore its acceptance of the compulsory jurisdiction of the International Court of Justice to its pre 2002 levels.

Share This