An argument for ratifying international agreements by Acts of Parliament rather than executive action

In the field of international politics, there are a number of ways each sovereign nation can formally enter into an agreement with other sovereign nations. A good summary was available at https://legalanswers.sl.nsw.gov.au/hot-topics-human-rights/international-law-and-human-rights (although that link no longer works), and is as follows: 

In concluding a multilateral treaty, states generally follow these procedures: 

Adoption 

The outcome of negotiations is generally the adoption of the text of the treaty in an international forum. Once adopted, the treaty becomes ‘open for signature’. 

Signature

By signing a treaty, a state indicates its intention to become a ‘party’ to the treaty. Whilst signature often constitutes the first step in becoming a party, it does not mean that the state is bound by the terms of the treaty.

Ratification and accession 

Ratification and accession are formal procedures by which a state indicates that it intends to be bound by a treaty. Once adopted, the treaty remains open for signature for a specified period of time. This time generally allows for ratification by the number of states that are necessary for the treaty to ‘enter into force’. Ratification is completed by a formal exchange or deposit of the treaty with the Secretary-General of the United Nations in New York. Accession is the process by which a state becomes party to a treaty it did not sign, and is only used in multilateral agreements. Accession may occur before or after a treaty has entered into force, but is usually used when the agreement has been previously signed by other states. These procedures generally occur when necessary domestic legislation or executive action is complete.

What I want to consider in more detail is the third step in that process: ratification (a dated list of ratifications is available at https://humanrights.gov.au/our-work/commission-general/chart-australian-treaty-ratifications-may-2012-human-rights-your). 

The summary states “These procedures generally occur when necessary domestic legislation or executive action is complete”, and that is correct. 

Of late, it seems that Australia has adopted the practice of ratification by executive action, which is simpler, quicker, and cheaper, but, in my opinion, problematic for the following reasons: 

• it risks contributing to a perception amongst some voters of an arrogant, elitist “government”, with not too much differentiation as to what that word involves; 
• it also risks contributing to a resentment based on a sense of loss of sovereignty owing to perceived external imposition of “laws” - again, with a notable vagueness about what that word means;
  

• any view that it may be saving money is likely fantasist - this would largely be just shifting the cost down the track to someone else’s KPIs, with a hope that no-one notices or gets motivated and/or organised enough to do something using the convention.
  

When disaffected voters gain political power, as happened in the USA in 2016, and here in Australia earlier, nations experience political and human rights regression - to the extent that gains are threatened. 

If, on the other hand, ratification by domestic legislation was adopted, I consider the potential benefits would be:

• voters, including those who are potentially disaffected, would see this as respecting our processes & voices;
  

• any reservations would be included in our laws (Australia still has a reservation to CEDAW about the extent of paid maternity leave - I cannot provide a direct link, but that can be tracked down via https://indicators.ohchr.org/);
  

• potentially disaffected voters would possibly have a (somewhat misguided) sense that we could change / leave the treaty. While I have often read commentaries that we can’t, the truth is that many treaties have provisions for individual nations to repudiate the treaty - or similar terminology. However, the weakness of using such provisions it that they do not mean we can ignore what has become customary law, and thus it creates a false sense of ... “security”;
  

• debate during the preparation and passage of the legislation would enable an airing of community views, with the chance to see rebuttals of concerns, or possibly just that the concerns are minority concerns that the majority of Australians do not agree with. Subsequently, vitriol within Australia would possibly be more likely on the details of implementation in enabling legislation, rather than attacking the human rights principles - and should such attacks on principles be made, they could possibly be countered by describing them as bad faith irrelevancies;
  

• the legislation could also include measures which are necessary to implement the convention - e.g., new departments/authorities/monitoring/reporting/etc, some of which would potentially aid with our UPRs. 

An example of ratification by domestic legislation is Australia’s Genocide Act of 1949 - see https://www.legislation.gov.au/Details/C1949A00027. 

However, there were shortcomings with that approach. From http://classic.austlii.edu.au/au/journals/AUJlHRights/2004/22.html: 

“... even if Australia had moved to ratify immediately the Convention, and the Convention had entered into force, it would not have impacted directly on Australian law unless the Australian Government had moved to implement the treaty in the domestic legal system. Australia has adopted a dualist interpretation of the relationship between international law and municipal law, according to which the two systems of law are distinct, and a treaty only impacts on Australian law once it has been explicitly incorporated into that law. ... Eager to accelerate Australia’s ratification of the Convention, officials in External Affairs were keen to proceed to ratification without waiting for the possibly considerable delays that may be involved in the preparation of implementing legislation. ... Article V of the Convention requires Contracting Parties to ‘undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III’. Australia ratified the Convention on 8 July 1949 but the Commonwealth Government did not proceed to implement its provisions as required by art V. ... After a delay of more than half a century, the Commonwealth Government finally legislated in 2002 to make genocide a crime in Australia. Although the Government had been under domestic pressure to do so because of Indigenous issues, it was the establishment of an international criminal court with jurisdiction over the crime of genocide where a national jurisdiction is unwilling or genuinely unable to carry out an investigation or prosecution that finally prompted the Australian Government to act, and to do so in such a way as to avoid providing a basis for litigation on behalf of the ‘stolen generations’.”

When I first came across the Genocide Act, I thought it was an excellent approach: the legal fine points about the wording were something I was unaware of.

Nevertheless, such aspects could be dealt with by favouring a domestic legislation approach rather than executive action. 

If we had been doing so all along, I can think of quite a few groups who would have benefitted - including Indigenous peoples and refugees.

I may revisit and rework the wording of this post in the next few days: I’m not happy with it, but I want to get it up.  

 

Assumptions / basis 

In writing this, I have assumed / started from the following: 

• this blog states quite clearly that it is about political and human rights matters, including lived experience of problems, and thus I will assume readers are reasonable people who have noted the content warning in the post header;

Possible flaws 

Where I can, I will try to highlight possible flaws / issues you should consider:

• there may be flawed logical arguments in the above: to find out more about such flaws and thinking generally, I recommend Brendan  Myers’ free online course “Clear and Present Thinking”; 
  
• I could be wrong - so keep your thinking caps on, and make up your own minds for yourself.
  

 

If they are of any use of interest, the activism information links from my former news posts are available in this post. 

 

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Remember: we need to be more human being rather than human doing, and all misgendering is an act of active transphobia/transmisia that puts trans+ lives at risk.