Gaius to Galaxies; Why Customary International Law should play a larger role in Australian Municipal Law

8/8/2019 Gaius to Galaxies; Why Customary International Law should play a larger role in Australian Municipal Law

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Gaius to Galaxies; why Australia

needs Customary International Law

in its Municipal Courts

Zorba J Parer

Customary international law is an important part of the

international legal system that ought to be given a stronger role in

domestic law: Kristen Walker and Andrew D Mitchell, A Stronger

Role for Customary International Law in Domestic Law? in Hilary

Charlesworth, Madelaine Chiam, Devika Hovell and George Williams

(eds), The Fluid State: International Law and National Legal Systems

(2005) 110, 135. Discuss this statement, referring to the ways that

customary international law should or should not be afforded

greater influence upon Australian law.

3994 words

This work is original, except where credit is given or reference is

made to other material.


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International Law and the Australian Context

Australia has a mixed relationship with international law, particularly

with regards to Human Rights issues of sentencing and privacy1.

Given Australias legal history as a British Penal colony it should not

be surprising that there would be a period of adjustment,

particularly regarding our penal system, after becoming party to an

International standard of Civil and Political Rights. While some of

these changes appear to bring Australias laws into a more humane

model, there are serious concerns about how much Australia has, or

should, cede Sovereign powers to International normative currents.

Adjusting Australias domestic laws to align with International norms

has also raised issues regarding the expanding role of the Federal

Government under the External Affairs powers, with regard to issues

and areas which the Australian Constitution places within the States

authority. These issues go to the core structure of our federalist

nation and challenge the fundamental structure of the Australian

Federal Constitution2. The use of International Law in the

interpretation of the Australian constitution has given rise to locked

horns in the High Court3, and is by far the most contested of the

issues within the Australian Judicial consideration of this topic.

While Australia has expressly agreed many International Treaties, it

does not share all the same CIL mechanisms for de-conflicting them,

1 Ergo UNHRC Communication No. 1629/2007, Communication No. 1635/2007, et alia.2

Kirby J; The Growing Impact of International Law on Australian Constitutional Values Deliveredat the Australian Red Cross Oration, 8th of May 2008.3AlKateb v Godwin HCA 37; 219 CLR 562; 208 ALR 124; 78 ALJR 1099 (6 August 2004)


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or even for identifying where legislature has its origin in a treaty.

The only court with an original jurisdiction in treaty interpretation is

the High Court of Australian, and it is not wholly bound to consider

CIL, if that element of CIL is not incorporated into some form of

Domestic legislation.

Legislative changes due to treaty obligations can create tension and

conflicting international obligations under different treaties. These

contrary points are then hidden within the domestic incorporation,

because they cease to appear as international treaty obligations

and emerge simply as domestic law. This then leaves the courts to

attempt to reconcile these issues, without necessarily considering

the context of the treaty which was the origin of the legislation, or

the CIL within which all treaties are framed.


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What is Customary International Law and how does it relate

to Natural Law?

Customary International Law is the set of rules which the vast

majority of States adhere to in their interactions with one another,

which they generally agree have some binding character. So why

should rules relating to State interaction play a larger role in our

domestic setting?

Immanuel Kant states:

in the Right of Nations we have to consider not merely a relationof one State to another as a whole, but also the relation of theindividual persons in one State to the individuals of another State,as well as to the State as a whole.4

From this early formative work we can see that consideration of

State interaction cannot be wholly distinguished from the individuals

of that State. In a more contemporary expounding of the topic5, the

Honourable Justice Kirby provides numerous examples of the

relevance of international law to the individual citizens of various

States, in particular the relevance of human rights.

As the web of international interactions tightens through increased

mobility and instant global communications, this tenant becomes

stronger. Individuals now play a part in a global village, or as early

defined by the Ancient Greco-Roman philosophers, a Cosmos

(universal) Polis (city). Kants Perpetual Peace outlines the universal

4 Immanuel Kant The Philosophy of Law W. Hastie translation; section 535

Law in Context Internationalising Law A new frontier for Law and Justice; The Hon JusticeMichael Kirby AC CMG, Based on an address at the conference on Globalism, Law and Justice at the

University of Western Australia, Perth on 27 October 2006


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political laws (Jus Cosmopoliticum)6 as the rights universally

regulating the social intercourse between foreign nationals. Kants

Jus Cosmopoliticum was not intended as a Universal set of Human

Rights, but rather a set of rules to govern communications, trade,

commerce, travel and other such pedestrian transactions.

By Kants definition it is without question that Australia and most

States of the World have created Laws to govern Kants universal

city. Technical treaties on postal, telegraph and telephone, air

transport, sea transit, internet, commerce, intellectual property, and

trade are almost universally adhered to and enshrined in the micro-

biotia of domestic legislation.

Georg Friedrich Von Martens, one of the great founders of the

Positivist school of thought in Germany7, stated that the ideals

espoused in the 1775 French National Convention proposal for the

adoption of adclaration du droit des gens (an early French attempt

at a declaration of natural law of nations) would not work. Or to

translate his writings That the European people should come

together and sign a declaration du droit des gens and so establish a

codicis iuris gentium positivi must at best a lovely dream

remainso long as Men, Men remain8. Whilst this statement would

refute the possibility of the creation, or actual realisation, of a

legitimate legislated positive international legal framework, it hints

6 Ibid Section 63.7

IILJ Working Paper 2006/1 History and Theory of International Law Series Georg Friedrich VonMartens (1756-1821) and the Origins of Modern International Law Martti Koskenniemi8 Martens,Einleitung, 1796 p. vii.


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at the true issues at the foundations of international law as rooted in

Human Nature.

Martens world view stemmed from an observation of the political

realities of the 18th century, and in his work we see one of the

original scholars of the modern conception of CIL, as there was no

other international law being practiced. His German pragmatism

drove him to throw away the philosophical dreaming of the

enlightenment and set about the methodical task of documenting

state practice and treaties as the source of international law, and

dismissing the concept of a Cosmopolitan constitution as a

framework for establishing a true set of workable positive laws.

Both Kant and Martens seem to accept as proven the earlier thesisof Hobbes, in which he states:

concerning the Offices of one Souveraign to another, which are

comprehended in that Law, which is commonly called the Law ofNations, I need not say any thing in this place; because the Law ofNations, and the Law of Nature, is the same thing9

Between Kant and Martens we see a schism of Hobbes thinking

which has resulted in our modern concepts of CIL and Natural Law.

Kant studied an ideal set of legal principles based on human nature

and set conditions which were required to attain perpetual peace;

Martens studied the world and codified the rules that existed in

reality when such conditions do not exist. These two approaches to

legal study are reflections of their scientific counterparts, the

Theoretical scientist and the Experimental scientist.

9T. Hobbes,Leviathan, ed. R. Tuck (Cambridge: Cambridge University Press, 1992), p. 244.


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Kant as the Theoretical Jurist set the legal, political, and social goals

for obtaining a perpetual peace, which have in some instances been

met in our modern international framework.

To define it for this discussion somewhat more clearly: Natural Laws

are a set of Ideal Laws which in consideration of Human Nature, lead

to the most beneficial state of Human co-existence, and when

optimised for specific environmental and technological conditions,

lead to an optimal productive output of a society. This includes the

concept ofius gentium as defined by Gaius10, i.e. the rules which are

common to all people formed into a society, and extends beyond ius

gentium to include the optimal set of rules derived from the general

principles which lead to the survival and flourishing of a Nation of

people.

The above definition includes all forms of human nature in

manifestations such as free market behaviour. Thomas L Friedman

put it in a 1996 New York Times article11 Nations with MacDonalds

do not go to war with each other12. His tongue in cheek catch

phrase was intended to highlight the fact that we are seeing a

realisation of the Kantian world through the every growing economic

middle class, which in a democratic model will choose to eat

hamburgers, rather than go to war.

10 Gaius,Insititutiones, I, i, as translated by Hans Julius Wolff inRoman Law: An Historical

Introduction (1951) 82-83.11

(http://query.nytimes.com/gst/fullpage.html?res=9B03EEDD123FF93BA35751C1A960958260 )12 Ignoring the Russia/Georgia conflict as an internal-style conflict of course!


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Martens approach as the Experimental Jurist provided us with the

tools to measure Positive international law and CIL, and provided a

framework from which to begin building an understanding of the

international legal system as it is and allows us to test it against the

theoretical ideal.

To define it for my purposes; CIL is the state of international law as

it stands, delineated by treaties, State practice, and accepted norms

of the interactions between Nations which exceeds mere comity and

to which there is an expectation of enforcement.

So what does any of this matter? What we see here is that the

Natural Law of Nations is a set of deducible rules for creating an

ideal society of Nations and CIL is a set of tools for measuring the

current rules. As the world becomes more uniform and reactive,

Nations which follow the Natural Laws will flourish and those which

do not will fade. As a part of this process of integration and cultural

merging, excluding a cataclysmic event, Natural Law and CIL should

converge.

Finally to further understand the implications of CIL, and why it is

important, we must explore the State practice element of the

formulation. Modern State practice is based on a myriad of

considerations, but is generally driven by the interests of a given

State. Posner and Goldsmith provide an exposition of this by

showing how Game Theory can be used to assist with State decision


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making13, and how this influences State practice and thus influences

CIL. Decision theory is a growing body of scholarly endeavour which

provides leaders with tools to make decisions which stand up to

independent scrutiny. Decision theory includes; Game theory,

Bayesian belief networks, Statistical risk/gain analysis, and prospect

theory to name but a few. Decision theory is used by State

practitioners to determine the rational choice to advance their own

State agenda, which then leads to the formation of State practice

with regards to particular issues in international law.

Decision theory can equally be used to determine Natural Law, and

ideally the Natural Law of Nations will be illuminated by following

the highest gain decisions for the Global Society of Nations. This

would be at the expense of some short term gains by individual

States, which as Martens correctly pointed out will not happen so

long as Men are Men, or as I would put it, as long as Nations are

States.

Game theory would predict that Natural Laws which do not benefit

any one State over another, are of equal benefit to all States, or

which benefit a majority of States, should easily find their way into

CIL.

However in the end game solution, Natural Law is that law which

exists whether we will it to be or not, and just as certainly as the

Law of Gravity will accelerate us from the top of a building to the

13 Posner and Goldsmith, The Limits of International Law, Chapter 1 A Theory of Customary

International Law


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bottom, so too will the Natural Laws govern the consequences

associated with State behaviour.

Positive legal theory and systemic concerns regarding

fragmentation

There are two major factors which create issues in the Positive legal

system as it stands. Firstly as hinted at above, powerful States

following individual agendas drive treaties and State behaviour in

their favour and therefore influence the formation of CIL14. Secondly

as demonstrable via the Posner & Goldsmith methods15, State

behaviour may result from factors which represent momentary

advantages in the political theatre.

Where the UN bodies take a progressive role in formulating the

terms of treaties, these progressive approaches do not necessarily

resonate with the majority of Nations, and are certainly not

representative of common state practice. These progressive

approaches may be based on powerful state cultural and moral

positions which provide Home state political advantages,

international diplomatic gains, or other political expediencies. This

has led to a significant amount of research into the area of legal

fragmentation due to positivist legal approaches16. Whilst some

legal theorists see fragmentation as a healthy17, others have

14 IILJ Working Paper 2007/6, Global Administrative Law Series, "The Empires New Clothes:

Political Economy and the Fragmentation of International Law" Eyal Benvenisti15 Posner and Goldsmith, The Limits of International Law, Chapter 1 A Theory of Customary

International Law16 International Legal Theory Snapshots from a Decade of International Legal Life; Fleur Johns,

Melbourne Journal of International Law (2010)17IILJ Working Paper 2007/6 (Global Administrative Law Series), The Empires New Clothes:Political Economy and the Fragmentation of International Law Eyal Benvenisti and George W.


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sufficient concern regarding fragmentation that the issue has made

it onto the UN International Legal Commissions (ILC) standing

agenda18.

Examination of the Convention on the Rights of Children (CRC) and

the International Convention of Civil and Political Rights (ICCPR)

shows how seemingly good progressive international positivist

legal positions can create contradictory positions for domestic legal

implementation. Within the context of the international legal

framework these contradictory positions are acceptable, as treaties

are not mandatory (unless they reflect CIL or over time become

accepted as CIL), and many may be accepted by States with

reservations. In addition the international legal community

recognise the General Principles of International Law, which fill the

gaps where treaties and State practice are either inconsistent or

non-existent. As Stephen Hall puts it Thus the general principles of

law provide a reservoir from which apparent gaps in the corpus of

international law may be filled. 19

In order to examine how this progressive approach may lead to

domestic legal fragmentation I will look at the implementation of the

CRC and the ICCPR into Australian Domestic legislation.

Fragmentation of Australian Domestic Law due to

International Obligations

Downs18G. Hafner, Risks Ensuing from Fragmentation of International Law, Official Records of the

General Assembly, Fifty-fifth Session, Supplement No. 10 (A/55/10), annex.19 Stephen Hall, The Persistent Spectre: Natural Law, International Order and the Limits of Legal

Positivism, EJIL(2001), Vol. 12 No. 2 Pg 269-307


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It can be argued that the CRC goes beyond creating an obligation on

parents for children already in existence and creates an obligation

on State parties to the convention to enact legislation which induces

an obligation on potential parents to ensure they can provide the

basic standards for their future children. Australia is a party to the

CRC and this interpretation could result in Australia enacting a law

which requires individuals to obtain a licence to procreate. Such a

law would almost certainly violate the ICCPR Article 1720 rights to

privacy, family and home. Whilst it might be argued in the ICCPR

context that a law provided in the context of the CRC would not be

arbitrary or unlawful this would be difficult to square with the

findings of the UNHRC Communication21 regardsAustralia v Toonan

determination where it was found that forbidding homosexual

activity within the privacy of a home was arbitrary interference.

Indeed the Family Court is in its very existence a form of this non-

arbitrary, lawful, intrusion into privacy, family, and home.

Article 18 of the ICCPR also cannot be squared with any requirement

for a parental Licensing concept as many religions hold it the

responsibility of the individual to procreate. Even if such religions

did not exist, persons not willing to be subject to such a framework

of restrictive parenting could create a religion based on this belief.

Indeed given the advancement of human knowledge regarding the

Genome the right to reproduce could be considered as a basis for a

20

ICCPR Article 17.1. No one shall be subjected to arbitrary or unlawful interference with hisprivacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.21 UNHRC Communication /1994 Australia v Toonan


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new strand of natural law rights and obligations. Our modern

understanding of the genome is a right of survival of not only the

individual, but of every ancestor of the person who lived, survived,

and gifted life to the descending generations. A restriction on the

reproductive choice of an individual denies the dead their right to an

ongoing legacy.

Here we can observe the clear fragmentation of legal obligations

arising from Australia committing to a variety of international

treaties, which may not have considered the full implications of one

to the other, or of additional potential international legal obligations,

or of other evolving considerations. To accept international legal

obligations of treaties is to create a web of inconsistencies which

cannot co-exist without an acceptance CIL General Principles.

Here the stalwart Common Law advocate will stand up and state

loudly and proudly that the Judiciary will protect us from this

calamitous confusion. This position was famously expounded in the

Mabo decision by Sir Gerard Brennan22:

The common law does not necessarily conform withinternational law, but international law is a legitimate

and important influence on the development of thecommon law, especially when international law declaresthe existence of universal human rights. A common lawdoctrine founded on unjust discrimination in theenjoyment of civil and political rights demandsreconsideration.

This concept of judicial incorporation of international law through

consideration of treaties as a source for consideration by the

22 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42.


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judiciary in common provides a strong argument. Judicial

consideration of international law as a source in Australia is linked

to treaties which Australia has ratified.

The idea that this consideration could extend to ideas such as

internationalJus Cogens laws creating a criminal offence was clearly

disregarding in the Nulyarimma v Thompson genocide case. This

discussion begs the question; would the judiciary have come to the

same conclusion if faced with a Cambodia style genocide case of

State extermination? Certainly my hope is that the answer would be

no; and that the judiciary would have consideredJus Cogens aspect

of genocide. However the judicial precedent in Australia established

in Polites (whilst notJus Cogens), suggests that such hope is

unfounded and is one of the strongest arguments for the formal

inclusion of CIL into Australian municipal law.

The use of International Law in Interpretation of the

Australian Constitution

The judicial debate regarding how much influence the international

legal order ought to have on the interpretation of the Constitution

has raged with notable Australian jurists (Kirby J, French J, McHugh J,

F G Brennan J) and international jurists (Hon Ruth Bader Ginsberg

(US), Justice Scalia (US), Chief Justice Dickson (Can)) all weighing in

on the topic. So why is there a Great Debate here?

InAl-Kateb v GodwinJustice McHugh suggested that the judiciary

should not enact a soft bill of rights into the Australian Common Law


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on the basis of international human rights. This is an interesting

opinion; because one of the strongest arguments for not

incorporating a bill of rights is the strength of the Common Law

judiciary to ensure fair treatment before the law. Indeed the

presumption of fundamental powers of Parliament and the Common

Law Judiciary in the British system is so strong, that the UK does not

have a single or complete codified constitution. Indeed in

constitutional theory, one definition is that a State has a constitution

if there is a stable functioning government with a set of rules which

it follows, irrespective of whether they have been codified or not. In

this sense one could mount the argument that the International

Legal system has a constitution and its name is CIL.

The position propounded by Justice McHugh, and others, is that the

Australian people do not accept International Human Rights

standards as mandatory in Australia, because they havent accepted

them into the Constitution. This does not however align with the

finding in Mabo, that if a treaty is valid and that where there is no

express legislation to the contrary (as in the case ofPolites) it is

assumed, that the executive and legislature do not intend to violate

a Treaty obligation. This then does not suggest that the Judiciary is

entering a soft bill of rights, but that the Executive, in signing up to

the UN Human Rights treaty system, enacted a soft international Bill

of Rights. That this has circumvented the Constitutional reform

process is a different topic entirely.


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Summation

Mankind grew wise and learned that Gods works are seen in the

way apples fell from the trees, planets orbit the sun, and comets cut

the celestial plane. This wisdom expanded to seek a law of man

which would mirror the elegance of the law of science. Mans hubris

in the age of enlightenment lay in the belief that their cleverness in

devising the Laws of Science to describe the ideal interactions of

inanimate objects approached the level of complexity required to

devise the Natural Laws to describe the ideal interactions of people.

The originators of science in the renaissance turned their rationalist

methods to the laws of man, and made an impressive beginning on

the foundations of natural law. Their intellectual descendents

proved through political action that the natural laws could be over

come by force of will, and convinced themselves that the only laws

that truly exist are those written by man.

The Principes de la Loi Naturelle were relegated to the backwaters

of legal philosophy as Sovereign States plied the seas and imposed

their will on the weak to obtain benefits for their own society.

Despite all the best efforts of political forces to extinguish the

theories of Natural Law, the persistent spectre appeared to tease

their failed attempts to oppose the basic tenants of human

behaviour. States behaved in accordance with certain fundamental

rules, which they termed Customary, perhaps to help reinforce the

belief in their own power. Over time the shape of Customary


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International Law resembled more and more the earlier named

Natural Law.

In the age of computer based simulations of strategic interactions,

game theory has been pointed to as proving that there is no

Customary International law23, rather that common patterns in State

behaviour merely represents a convergence of interests, or a

situation of temporary benefit. This is in fact a restatement of the

Kantian concept of Natural Law of Nations, wherein the acts of

Nations are not defined by a moral or ethical position, but rather by

self interest. It is in this mode of action guided by self interest from

which cooperative, constructive and mutually beneficial strategies

emerge.

In the modern age nations which behave cooperatively and place

emphasis on their national strategic advantage and trade with

nations having reciprocally beneficial strengths gain an advantage.

This restatement of the Natural Law in the context of game theory

allows us access to new tools in developing theories of Natural Law.

The exploration of Natural Law, increased accountability of political

decisions, normalisation of individual sovereignty as the basis of

political authority, growing economic interdependency, are all

driving a convergence of CIL and Natural Law. This convergence is

giving rise to an International Legal regime which sets the

conditions for perpetual peace, and should be accepted as fully and

as swiftly into the domestic practices of Nations.

23 Posner and Goldsmith Limits of International Law


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Failure of a Nation to accept the perennial jurisprudence of Natural

Law of Nations into their domestic settings will create fractious

results within the Judiciary. Only through providing the lubrication of

General Principles of International Law, can Australias treaty

obligations be made to mesh together into its most prosperous

form.

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Gaius to Galaxies; Why Customary International Law should play a larger role in Australian Municipal Law