Treaties and International Law

What is a treaty?

A treaty is an agreement between countries which is binding at international law. Treaties can be bi-lateral (between two countries) or multi-lateral (between three or more countries). In some cases, international organisations can also be party to treaties. Treaties can cover a wide range of subjects including social security, defence, nuclear non-proliferation, the environment and technological exchanges. A treaty may also be called a ‘convention’, ‘protocol’, ‘covenant’ or ‘exchange of letters’.

 

Why are treaties necessary?

Increasing globalisation and technological innovation has led to an increase in global interaction and interdependence. Many problems that arise affect the interests of multiple countries, and effective international cooperation becomes essential in achieving an effective solution.

 

How does Australia benefit from treaties?

Australia has a relatively small population and is geographically isolated. If national objectives were pursued based on factors such as economic and military power, Australia would be vulnerable. Treaties therefore level the playing field, establishing a fair and transparent framework for global interaction. Furthermore, building international coalitions can help to advance Australia’s national interests.

 

Who has the power to enter Australia into treaties?

In Australia, the power to enter into treaties is held by the Executive rather than the Parliament, with decisions taken at Ministerial level, and in many cases, by Cabinet. Although the Parliament has no formal role in treaty making, treaties are still tabled in both Houses of Parliament with a National Interest Analysis (NIA) noting the reasons why Australia should become a party to the treaty.

 

Who is involved in the treaty making process?

State and Terrority Governments – Many international treaties require State and Territory cooperation for their domestic implementation.

Industry and other interest groups – For example, the Department of Foreign Affairs and Trade (DFAT) holds forums in which NGOs and interest groups can raise concerns about the treaty process, in relation to a range of issues such as international human rights.

 

What happens once the government has decided to enter into a treaty?

Once an in-principle decision has been taken to agree to a treaty, the Commonwealth Government considers whether:

  1. specific implementing action is required;
  2. if so, whether existing legislation (Federal or State) is adequate; and
  3. if not, whether the treaty should be implemented by legislation at the Commonwealth or State/Territory level.

The prior approval of the Federal Executive Council is also required for Australia to enter into a treaty. The Executive Council comprises the Governor-General and all serving Ministers and Parliamentary Secretaries.

 

Do treaties automatically become law?

Treaties which Australia has joined are not automatically incorporated into Australian law. However, international law, including treaty law, can influence the development of common law and may be used in the interpretation of statutes.

 

Conclusion

Globalisation has greatly influenced international cooperation, and countries are becoming aware of the benefit of having a global ‘voice’ and contributing to international rule making. Countries, particularly those with a small population such as Australia, benefit from the use of treaties which introduce fairness and transparency to global interactions.

 

 

Nyman Gibson Miralis specialise in all aspects of international and transnational criminal law. Our expertise includes dealing with the laws and processes surrounding anti-money laundering, bribery and corruption, extradition and mutual legal assistance (MLA), cybercrime, Interpol, international asset forfeiture and national security breaches. If you require assistance, contact one of our expert criminal defence lawyers