The chief motives behind entering into bilateral and multilateral treaties are to achieve national objectives and not narrowed down by partisan political objectives. For instance, in US- Australian free trade agreement, it was informed that that FTA would bring more benefits to Australia thereby ensuring more access by the Australian agricultural products to US market and would result in pivotal economic advantages for Australia. Conversely, Australian government nosedived its position when it understood no such benefits would be achieved.
The most credible explanation for the swing is that Australian domestic political ideals had compelled to the fore and motivated the Australian government to implement and espouse the treaty despite some proof that it may not be in the country’s interest to pursue further. In federal States like Australia, the decision to implement international treaty obligations in domestic law may require to have room for the competencies and interest of national governments and constituents of State governments.
It is pertinent to note that Australian constitution is silent whether federal executive has the power in making of treaties or the power is with the states. Likewise , Australian constitution is silent on whether Federal Parliament is vested with power to legislate laws as regards to “external affairs “ and the sphere of power is always a point of dispute between federal and state governments since last decade. In the area of international relations, cooperative federalism has resulted in the involvement of state government in the procedures of treaty conciliation and treaty implementation.
The current practice in Australia is that after the text of a treaty has been decided, it is necessary to get the approval of the Federal Executive Council before the treaty is implemented whether the approval has taken by way of signature, ratification or by other ways subsequent to signature. However, the approval will not be given normally unless all essential steps have been initiated to bring Australian law into conformity with the treaty requirements by the time the treaty enters into force for Australia.
However, in the case of World Heritage Convention, Australia has ratified an international convention prior to the necessary implementing legislation. The reason for this is that where legislation is necessary to give effect to the conditions of a treaty, the executive cannot aware whether the particular legislature will approve the same or not. If such approval was not given, then it will place the Australia in awkward position as Australia could not withdraw from an international treaty in case if it could not implement the same.
Further, “[T]here are few practical legal limits to the Commonwealth’s power to implement treaties, the principal constraint being that the legislation must truly implement the treaty and not use it as a peg upon which to hang legislation on the general subject-matter regulated by the treaty. ” Examine this statement critically in the light of case-law and commentary. This research essay will analyse the above statement and tries to find out how best the aforesaid situation could be avoided in future.
TREATY – EXPLANATION: A treaty may be defined as an agreement between countries or states which is having binding effect at international law. In some exceptional cases, an international organisation may be parties to treaties. The other names for treaty are ‘convention’ , ‘treaty’, ‘protocol’ ,’exchange of letters ‘ or covenant. For instance, if an agreement is signed between countries and with an Australian state or territory, this will not constitute a treaty. Thus, a treaty should include the following ingredients:
? It should be entered between two countries or states; ? It has binding effect at international law. 3. KINDS OF TREATIES; There are two kinds of treaties, one is bilateral which is made between two countries and another is multilateral which is made between three or more countries. A free trade agreement between Australia and China is an example of bilateral treaty. A multilateral treaty is normally nurtured under the auspices of international organizations like UN or WTO. 4. NECESSITIES FOR TREATIES:
The need for treaty between countries has increased due to globalization, prolonged technological innovation and the expansion of transnationalism which increased the rapidity and frequency of global interfaces. Where multiple countries interest is involved and when the subject matter can not be solved by a single country, treaties act as a best tool to serve the purpose. For instance, nuclear non-proliferation treaty which restricts or banishes new atomic bomb explosion is a multilateral treaty where countries signed the treaty are bind by the covenants stipulated in the NPA.