Part One: International and Comparative Law
Campbell JA in Samootin v. Shea [2012] NSWCA 378
The Treaties are the form of agreement where different countries participate to make the contract as per the international law where they make them binding with each other. Not only the countries but also the International Organizations are also take parts o the treaties and make the contract with other organization on the basis of the International Law. Though Australian State or Territory and any Foreign Government can make any agreement as per the international law but those are not always consider as a Treaty. Sometimes the agreements between several countries are also not consider as a treaty unless they are formed as per the terms and conditions of the International Law (Hinchcliff, Fitzgibbons and Davies 2014).
The Campbell JA in Samootin v. Shea [2012] is a case which is a perfect example of the treaties which are formed by the Government of Australia as per the Domestic or the Municipal Law. In this case, the court have applied for the deciding where a processing was taken where it is an abuse of process of the Australian Domestic Law.
This is case of New South Wales Court which where the judgment was given on the year of 2010. In this case, Ms Alexandra Samootin who was involved with a lawsuit with many courts in the Australia and her husband Mr. Christopher Shea also owned a house in Mona Vale and the other rest of the parts are presented in the another place and it was also found that she was bankrupt on five years later. However, Ms Samootin has requested to the Australian Court for several times for the leave petition and a postponement for the seek leave to appeal and the decisions has been gone against the Supreme Court of New South Wales. The court also denies the claim of Ms Samootin. She claims several issues because she is facing some bankruptcy (Australian Human Rights Commission 2015).
The Domestic Law is the type of the national, domestic or the internal law which is present in a state and consider as an International Law. Thos is the important part in this case where the treaties of the international law have been described briefly and it is considered as a treaty which is also the ratification by the Australian Law. The law described that any domestic law is not considered as an International law as long as it consider by the legislation and never try to control the citizens of the Australia. However it also stated that the treaties which are represented in globally are never ratified by the Australian Government and never the part of the Domestic Law create any personal duties which was also can be find in the case of Chow Hung Ching vs. R at 286-287 and it also defines that this significant a domestic law not the treaty. In this case the relationship of treaties has been established between the Australian Domestic Legal system w2hich was also sometimes found in the United Kingdom also.
The treaties are in the Australia has been acknowledged through the international convention where the country has take part for the claimant of the universal fundamental rights. In several case, the relationship between the international law and the domestic law has been establishes like Dugan v Mirror Newspapers Ltd, McInnis v R and Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs where the international law has been established as per the doctrine of the common law. The International Human Rights also has been established in the famous case of Mabo vs Quesnsland where the High Court of the Australia declared the reorganization of the native title of the Australian Aborigines. In Minister for Immigration and Ethnic Affairs v Teoh case the Judge Mason CJ also accepted the application of the international convention. In this case, the High Court had stated the executive ratification as per the international convention which is the legal legitimate expectation which can be related with the Executive Government and the conformity of the convention (Wallace 2014).
In the case of the Campbell JA in Samootin v. Shea [2012] the court has taken the law making treaties with the accordance of the Australian Domestic Law as per the judgment of the superior court where one of the expectations has been established in the case of Brennan vs. Brennan (1953) appeal judgment. Here, Ms. Samootin cannot be able to challenge the orders of appeals but challenge again in 2012 as per the Australian Law. However it can be also stated that the Australia law never bound to control by the human rights treaty unless and until it follow the domestic laws of the country and must relate with the treaty. For the interference of the Australian Domestic Law, it has only guaranteed by the ICESCR and ICCPR which are explain different agreements (Australian Human Rights Commission 2015). Those are:
- The Agreement on the Prevention and Punishment of the Crime of Genocide
- The Agreement on the Political Rights of Women
- The Global Convention on the Elimination of all forms of Racial Judgment in the International Law
- Convention on the Removal of all forms of Discriminations toward Women.
The Australian Government has been take the confirmation of being bound to the Australian Human Rights law but they never relates with the domestic law but the Australian Treaties Database which is included in the Australian Legislations. The several provisions are confined in the Convention of the Rights of People with the health treaties like the Disability Discrimination Act 1992. The Segment 51(xxix) of the Australian Constitution deals with the authority of the external affairs authority which gives several offers to the Commonwealth Assembly authority for the ratification of the legislation where in the agreement Australia is recognizes as a party.
In this case the court has been rejected the 2010 appeal judgment of the application given by Ms. Samootin because the court has found several lacks of the application in this case. The rights has been vindicate the allegations of the rights and if those are exited then it must be the Trustee must vested for her bankruptcy. Therefore the court has also found that the bank has corrupted her property upon her bankruptcy which was applicable as per the relevant provisions of the Bankruptcy Act 1966 (Cth) . Here the application which was made by her was included the value of the property of interest where she has claim that which is entitled to her (Hinchcliff, Fitzgibbons and Davies 2014).
In the 2012 proceedings she has mentioned about the application of the leave to appeal and the decision goes against the decisions f Palmer J on 1 August 2003, 27 August 2003, 28 June 2004 and 20 June 2008, and decisions of Hammerschlag J on 16 July 2007, 17 July 2007, 30 July 2007 and 3 September 2007. However the court proceeding has been proceed as per the courts rules and regulations. In between the process she was also seeks for the orders of dismissal of the International Law under the Convention of the Elimination of All Forms of Discrimination against Women. This is discrimination against the women where that matters have been processed under the High Court of Australia. She also raises some several application related with her medical problems (Rimmer 2016).
However, in this case the court has been given the orders about the costing of the valuation reports which are chargeable as per the rules and regulation of the trust agent. The court also mentioned about the liberty of application which is granted for the both of the Official Trustee and Loan Design Pty Ltd where the cost of the applications are never paid by the trust agents. Ms. Samootin several submissions are can be dismissed due to an abuse process refer repeatedly which was relates with several treaties of Australia which also consider as a party. The application of the abuse process by the Australian domestic Court always contravention by several provisions which is mentioned in the Convention on the Elimination of All Forms of Discrimination against Women ("The Discrimination Against Women Treaty") (Australian Human Rights Commission 2015).
The law that this Court applies in deciding whether a proceeding that has been initiated in it is an abuse of process is Australian domestic law. International treaties that have been ratified by the Australian government do not as such form part of our domestic law (Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449 at 462, 471 and 477) or operate as a direct source of individual rights and obligations under that law (Chow Hung Ching v R at 286-287). If a government enacts legislation to implement a treaty, it is the Australian legislation that is part of the domestic law, not the treaty itself. In accordance with Australian domestic law, an order of a judge of a superior court is, subject to presently irrelevant exceptions, valid unless and until it is set aside on appeal: Brennan v Brennan [1953] HCA 28 at 134 per Williams ACJ, Webb and Kitto JJ. For the reasons given in the 2010 Appeal Judgment, Ms Samootin does not have standing to challenge on appeal the orders that she seeks to challenge in the 2012 Appeal Proceedings. Thus, the 2012 Appeal Proceedings are an abuse of process (Freebairn 2016).
Part Two: State Responsibility and Environmental Regulation
The most important issue with reference to the facts and circumstances in the given case study is to determine whether State Z can raise any kind of objection as far as the jurisdiction of the International Court of Justice is concerned.
The International Court of Justice is a body of the United Nations that mainly is vested in dealing with the addressing of legal disputes brought to it by nations (Elias 2013). The Permanent Court of Arbitration is a tribunal situated within the premises of the International Court of Justice that is mainly empowered to in dealing with settlement of disputes between nations, private entities and international organizations as per international agreements and treaties (Crawford and Grant 2017).
The main functions of the International Court of Justice is to uphold the values, norms and customs governing international law and the effective
As imbibed from Article 93 of the Statute of the International Court of Justice the United Nations is factually absorbed as a party to the Statute of the International Court of Justice. However, any nation who is not a member of the United Nations can also become a party to the Statute of the International Court of Justice as per the decision of the General Assembly on being put forth by the Security Council as enshrined in Clause 2 of Article 93 of the Charter of the United Nations. In the case of United Kingdom versus Albania, colloquially known as the Corfu Channel case, the concept of explicit jurisdiction was founded. In this case, it was held that in case of no clarity regarding jurisdiction Article 36 of the Statute of the International Court of Justice, letter from the respondent nation stating that the respective respondent nation is submitted to the court to have jurisdictional powers.
The two major categories of jurisdiction with which the International Court of Justice is vested to exercise its powers in addressing disputes include contentious jurisdiction and advisory jurisdiction.
Contentious jurisdiction is the kind of jurisdiction that implies that in case of disputes between nations, the International Court of Justice has to apply the treaties, customs, agreements and other kinds of reliable sources of international law when reaching upon a conclusive decision.
Advisory jurisdiction is the kind of jurisdiction that implies that the International Court of Justice commences proceedings when a request for such proceedings is filed in correspondence with the Registrar of the Secretary General of the United Nations (Shihata 2013). The opinions with reference to the advisory jurisdiction of the court are quite essential as far as the enhancement of the public international law is concerned.
According to Article 94 of the United Nations Charter, the countries who are the members of the United Nations Organization must act in accordance with the decisions made by the International Court of Justice or else the matter would be taken to the United Nations Security Council for the enforcement of such decisions (Kaczowroska-Ireland 2015). However, if any such decision is made against any of the five permanent (out of fifteen) members of the United Nations Security Council namely Russia, China, the United States of America, the United Kingdom and France, such a resolution over enforcement of a decision is liable to be overturned (Kolb 2013).
In the case of The Republic of Nicaragua versus the United States of America, the Security Council overturned the execution of the decision passed by the International Court of Justice against the United States of America (Hernandez 2014).
Articles 39 to 51 of the United Nations Charter present an overview that the United Nations Security Council is empowered take the coercive action with reference to the compliance of any decision of the International Court of Justice when international peace and security is at stake (Zimmerman et al. 2012).
As imbibed from the provisions envisaged in Article 38 of the Statute of the International Court of Justice, it is inferred that the applicability with reference to the judgements of the International Court of Justice is based on international agreements, international traditions and the basic legal norms. The provisions concerning the non-applicability of any precedent established by common law is envisaged in Article 59 of the Statute of the International Court of Justice. However, Clause 1 of Article 38 of the Statute of the International Court of Justice
The provisions with reference to the procedure of the International Court of Justice are envisaged in the Rules of the Court of the International Court of Justice of 1978 (amended in 2005). The International Court of Justice is entrusted with power to make its own rules. Article 62 of the Statute of the International Court of Justice implies that a third nation can make an application for intervention if its interests are affected by the dispute between two nations before the International Court of Justice. However, it is the discretion of the International Court of Justice to grant an approval to such kinds of applications for intervention made by third nations (Bannelier, Christakis and Heathcote 2012).
In the given case study, it is to be seen that whether State Z is a member of the United Nations. If not, it has to follow the procedure enshrined in Clause 2 of Article 94 of the United Nations Charter in order to be a party to the Statute of the International Court of Justice for making objections against the jurisdiction of the International Court of Justice (Dixon 2013).
The decision in the Nicaragua case would be helpful in determining whether State X or State Z or both are permanent member(s) of the United Nations Security Council (Reichler 2012).
As implied from the decision made in the case of United Kingdom versus Albania, State Z can claim that the International Court has explicit jurisdiction if there is no clarity regarding jurisdiction. Such kind of provisions are prescribed under Article 36 of the Statute of the International Court of Justice (Crawford 2012). This implies that State Z cannot raise any objection with reference to the jurisdiction of the International Court of Justice (Abbas 2012).
As far as the prosecution of Ecks Company is concerned, it is implied from the fact that Ecks Company should have hired a legal representative for defense. Furthermore, Ecks Company should have filed an appeal in accordance with the procedure of appeal as per the laws of State Z instead of being disgruntled at the liquidation of its branch at State Z. Moreover, Ecks Company with reference to fairness of justice should have hired a lawyer for representation in court in accordance with the laws governing the rights of the accused and should have been present in the during the course of the proceedings connected with the sentencing of the manger of the Ecks Company. The manager of the Ecks Company was charged with fine and imprisonment on grounds of espionage by hiring a spy named O.O. Seven for the purpose of obtaining confidential information of a great competitor of Ecks Company at State Z.
Determination of the involvement of State Y in the case in consonance with Article 62 of the Statute of the International Court of Justice is to be taken into account. Additionally, it has to be identified whether State X really has any role to play in the dispute before the International Court of Justice since Ecks Company is mainly operating from State Y even though it was incorporated in State X.
Conclusion
Therefore, from the above discourse, it can be concluded by stating that the legalities involved in the conduct of international trade are justified and appropriate. The above discourse also demonstrates the case studies given discussing the facts and circumstances by throwing light over the relevant case laws and the statutes, enactments and legislations thereby providing an incredible framework with respect to the effective implementation international treaties and agreements in order to uphold international law. The above discourse also highlights the importance of the functioning of the International Court of Justice in consonance with the Statute of the International Court of Justice. The jurisdiction of the International Court of Justice has also been highlighted as far as the application of the law is concerned in the given case study with reference to the facts and circumstances applying the Statute of the International Court of Justice. The incorporation of international treaties and conventions in the domestic and municipal laws of Australia have also been highlighted. Additionally, it is observed from the above discourse that any order passed by the International Court of Justice that is not in favour of any permanent member of the Security Council of the United Nations is bound to be reversed by the Security Council of the United Nations. Furthermore, the fact that the Government of Australia has decided to come under law governing Human Rights of Australia has also been taken into account. Moreover, the above discourse also adresses the issues in accordance with international law concerning the duties of a nation with reference to the jurisdiction of the International Court of Justice. The abuse of the process of law as implied from the decision made by Campbell JA in the case of Samootin versus Shea has also been justified.
References
Abass, A., 2012. Complete International Law. Oxford University Press.
Australian Human Rights Commission, 2015. Fact Sheet 7: Australia and human rights treaties.
Bannelier, K., Christakis, T. and Heathcote, S. eds., 2012. The ICJ and the evolution of international law: the enduring impact of the Corfu channel case. Routledge.
Belmessous, S., 2014. The tradition of treaty making in Australian history. Empire by Treaty: Negotiating European Expansion, 1600-1900, pp.186-213.
Campbell, T. and Morris, S., 2015. Human Rights for Democracies: A Provisional Assessment of the Australian Human Rights (Parliamentary Scrutiny) Act 2011. U. Queensland LJ, 34, p.7.
Crawford, J. and Grant, T.D., 2017. International Court of Justice. The Oxford Handbook on the United Nations.
Crawford, J., 2012. Brownlie's principles of public international law. Oxford University Press.
Dixon, M., 2013. Textbook on international law. Oxford University Press.
Elias, T., 2013. The international court of justice and some contemporary problems: essays on international law (Vol. 2). Springer Science & Business Media.
Freebairn, J.W., 2016. Design alternatives for an Australian allowance for corporate equity.
Hernández, G., 2014. The International Court of Justice and the judicial function. Oxford University Press.
Hinchcliff, C.L., Fitzgibbons, M. and Davies, C., 2014. Researching Australian, New Zealand and Papua New Guinean Law. Legal Information Management, 14(3), pp.193-201.
Kaczorowska-Ireland, A., 2015. Public international law. Routledge.
Kolb, R., 2013. The International Court of Justice. Bloomsbury Publishing.
Lauterpacht, H., 2012. Recognition in international law (Vol. 3). Cambridge University Press.
Lawrence, P.M., 2014. Trade and Environment: Tasks for the Negotiators of Future Inter presentation national Environmental Treaties. In Proceedings of the 1991 International Law Weekend, Australian National University Centre for International and Public Law.
Ng, S.C., Leung, W.K., Shi, H.Y., Li, M.K., Leung, C.M., Ng, C.K., Lo, F.H., Hui, Y.T., Tsang, S.W., Chan, Y.K. and Loo, C.K., 2016. Epidemiology of inflammatory bowel disease from 1981 to 2014: results from a Territory-Wide Population-Based Registry in Hong Kong. Inflammatory bowel diseases, 22(8), pp.1954-1960.
O'Leary, R., 2016. How Treaties and Technology Have Changed Intellectual Property Law.
Reichler, P.S., 2012. The Nicaragua case: a response to Judge Schwebel. American Journal of International Law, 106(2), pp.316-321.
Rimmer, M., 2016. Submission to the Joint Standing Committee on Treaties on the Paris Agreement.
Shihata, I.F., 2013. The Power of the International Court to Determine Its Own Jurisdiction: Compétence de la Compétence. Springer.
Tams, C.J. and Sloan, J. eds., 2013. The development of international law by the International Court of Justice. Oxford University Press.
Wallace, R., 2014. First Nations Need to sign treaties, says Warren Mundine. The Australian.
Zimmermann, A., Tomuschat, C., Oellers-Frahm, K. and Tams, C.J. eds., 2012. The Statute of the International Court of justice: A commentary. Oxford University Press.
