加拿大国际政治代写essaydissertation范文
典型的普通法国家的方法:普通法是基于司法判决先例，在类似的情况下根据先例进行判决，[1]美国和英国的一些国家采用这样的法律制度。这些国家的国际法律通过相关的术语进行结合和转换。国际法在国内注册法，因此要考虑到它是法源特征。相反，国际法与国内法分开之前如果要进行转化的话，国际法应该被改变成为一个国家或国内法律的一部分。Buvot v Barbuit和Triquet案件就是反映公司原则的最好的例子，托尔伯特勋爵在此种情况下指出，国际的法律是英格兰的法律的一部分。然而,英国内阁最终决定，这项法律不同于英国的法律。
然而这种解释方法并不是所有人都支持，对于Keyn来说，她认为这和关国际法市法律相冲突。另一方面,以Cockburn西兰德为例子的案例说明，国际习惯法规则存在于国内法庭而不是其他的地方，这些规则在需要的前提下应该合并或者转换。
I Differences of Approaches to Apply International Treaties in Domestic Law between Common Law Countries and Civil Law Countries
A The approaches in Typical Common Law Countries
Common law is based on precedent – judicial decisions which are made in similar cases.[1] United States of America and United Kingdom are some of the countries that practice this kind of law. These countries approach the international law through the use of two terms namely, Incorporation and Transformation. Incorporation states that international law is incorporated in the domestic law thus considering it as characteristic source of law. In contrast, transformation considers international law separately from domestic law and that it should be altered before becoming a part of the national or domestic law.
The case Buvot v Barbuit,[2] as well as Triquet v Bath,[3]is a best example of an approach to the international law reflecting the incorporation doctrine.[4] Lord Talbot, in Buvot case, stated that the nation’s law is part of the England’s law.However, the decision of Britain’s cases differed from that of England. Judicial decisions of The Queen v Keyn,[5] together with West RandCentral gold Mining Co Ltd v The King,[6] has shown a revival of transformation doctrine.[7] At that time, these cases were interpreted as a proposalof transformingthe international lawbefore it will be practiced in the courts of United Kingdom.
However this interpretation was not the same to all commentators. In the case of Keyn, an exaggeration was found in relating international law to the municipal law.[8] On the other hand, Cockburn CJ’s opinion of the West Rand case concentrated on proving that customary international law rules exists in domestic courts rather than examining if these rules are incorporated or is in need of a transformation.[9]
B The approaches in Typical Civil Law Countries#p#分页标题#e#
The legal system of Germany was based on the Civil law traditions. Civil law is codified and the countries practicing this system have a continuous update of legal codes.[10]Germany have adopted five codes – the criminal procedure, criminal, commercial, civil procedure, and civil – which are used in their Court.
On July of 2002, a law regarding crimes and codes that are against the International law took effect.[11] This legislation, considered to be unique, enables Germany to take legal action on all crimes that are against humanity. In general, it enables Germany to prosecute codes and crimes that are against the international law in any part of the world.However, the decision is left to the prosecutors on whether supposed crimes are to be brought to a German Court.
On 1 May 2008 in New York, Germany made a declaration strengthening the International law. With this declaration, Germany has acknowledged the jurisdiction of International Court of Justice (ICJ) with accordance to Article 36 of the ICJ statute.[12] This declaration also increases the areas in international law where Germany can seek adjudication by its Court. However, there are still fields that are excluded such as disputes that are related to military operations overseas or using the territory of Germany for military purposes.
C Similarities and Difference of the Approach between Two Different System Countries
Common Law and Civil law is basically the building blocks of the International Law.[13] As the international law keeps on developing, it will continue to make use of ideas and concepts from common and civil law systems.
The Common law consider two opposing sides, one is in favour and the other is against the rules and treaties of international law. The approach of this lawbasically circulates around two main terms – Incorporation and Transformation.Incorporation is in favour of international law to be included into the domestic law of that certain common law country. It strives to bring international law into their law thus making it the main source of their laws and judgements. While in contrast, transformation differentiates international law from domestic law therefore excluding the rules and laws of international law as a basis for the domestic law. But if ever international rules and laws are to be included in domestic law, these rules and laws must be transformed or revised before becoming a part of it.
On the other hand, the Civil law favours the international law and aims to strengthen it. The civil law is in favour of using the international law not only as their basis but also as their domestic law. As a result, their main focus is to incorporate international law to their domestic law and the international law must be widely use not only in their country but also to all countries as well.
II Application of International Treaties in Australia#p#分页标题#e#
A Legislation According to the International Treaties Australia has Signed
The main sources of legislative international laws are international conventions and treaties. Treaties are defined as legal binding or written agreement between states. In contrast, conventions are treaties participated by various states that, when ratified, becomes a legal binding obligation to those states.[14]
In the Second World War, international activity has increase thus there was a vast need for international agreements. There was a great growth of activities toward globalisation and the presence of international ramifications in national actions increased. Due to this rate wherein there was a contact between people regarding economic, social and political levels, without a regard to the national borders, individual countries’ policy makers have tried to influence these developments so that their national interests would be promoted and protected. [15]
Australia, since the colonial times, has benefited from shipping agreements, health treaties and postal treaties. In accordance to the international law, Australia agreed to bind with international conventions, these includes International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of all Forms of Racial Discrimination (ICERD), International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Convention on the rights of the Child (CRC). Although Australia agreed to be bound by these treaties, still they are not part of the domestic law of Australia unless they are specifically incorporated to the Australian law by legislation.[16]
The International treaties gave much impact to Australia and to the citizens within it. These treaties affect the law, policy making, industry and business, and society of Australia.[17] As noted as the basic rule, treaties and traditional international law are not directly enforceable in the domestic law.
B Judges’ Interpretations and Tendency When Conflicts Arise
In 1991, Nicholas Toonen, a homosexual Australian citizen residing in Tasmania, is an activist that promoted the rights of the homosexuals in his country. Fighting for the rights of homosexuals, he challenged two of the provisions in the Tasmanian Criminal Code. These are sections 122 and 123 which criminalize sexual contact of men in any form thus including sexual contact of adult homosexual men even if it is in private.[18] He argued that his right to privacy as stated under Article 17 of ICCPR was violated. He added that the Human Rights Committee also violated Article 26 because the law discriminated the homosexuals by sexuality as basis. Due to his complains to Human Rights Committee, Toonen was removed from his job as a General Manager of Tasmanian AIDS Council. The lost of his job was caused by the threatening of the government of Tasmania to the organization. His complaint was not considered by the Human Rights Committee until 1994, wherein it was agreed that the said law of Tasmania violate the obligations under the treaty. In response, a law overruling the Tasmanian law of criminalizing homosexuals was passed by the Commonwealth Government.[19]#p#分页标题#e#
In 1999, in relation to the case of Toonen, Edward Young passed a complaint to Human Rights Committee against Australia. His complaint was against the entitlements law of Australian veterans, stating that the veteran pensions of same-sex couples are different from opposite-sex couples.[20] This was found by the Committee as discrimination against written under Article 26 of the ICCPR. As a solution, the Committee reconsidered Young’s pension application and noted Australia to ensure no similar violations will occur.
These two cases, particularly the Toonen v Australia, are often cited as examples of the overreaching of the Commonwealth Parliament. The Commonwealth Parliament have legislated an area which is thought to be within the responsibility of the State. The Commonwealth’s actions were ignored thus it acted as the last option in the decision of the cases. In the case of Toonen, the Committee clarified whether the term ‘other status’ covers sexual orientation in the Article 26.[21] The case was decided on the issues concerning Article 17 and the Committee did not further expand the aspects in Article 26. On the other hand, the matter addressed by the case of Young to the Committee was about discrimination based on sexual orientation which was done in a different way. Young was in a relationship with a war veteran for thirty eight years. Upon the death of his partner, he applied for a pension benefit but it was denied because the domestic statute was purposely intended to couples of opposite sex. The complainant claimed that the decision of denial of the benefit which due to sexual orientation was a contrary to Article 26 and the Committee agreed.[22]
In year 1993, a citizen of Cambodia, identified as A, passed a complaint to Human Rights Committee regarding Australia violating his rights under Article 9 of the ICCPR. The Human Rights Committee favoured the complainant because he was subjected to arbitrary detention, subjecting him to immigration detention for almost four years, and was denied of the opportunity for the court to review his detention. The Committee agreed that Australia must pay just compensation to A but they refused.[23]
Another case that concerns immigration happened in 2002, wherein an Iranian family composing two children complained that their right of protection from arbitrary detention under ICCPR was violated when they were detained for three years and two months in the Curtain Detention Centre. The family’s asylum application was refused twice while the Minister declined to grant a favourable outcome of their case under s 417 of Migration Act of 1958.[24]
Upon its submission to the committee, Australia argued that the complaint was not allowed because the family, on the other hand, had not fully used all possible domestic avenues particularly those in the form of judicial review to the High Courts of to the Federal court of Australia. However, the Committee refused to accept this complaint because the Australia’s High Court held a constitutional policy of mandatory detention thus excluding it as an effective remedy. Therefore, there is no necessity for them to pursue a judicial review to the said Courts before the family’s claim would be heard by the Committee.[25]#p#分页标题#e#
As agreed upon the Committee, the detention of the family violated Article 9 of ICCPR pointing out that a detention becomes arbitrary if it extends beyond a period of which a state may provide an appropriate justification. The Committee added that Australia failed to justify their action of extending the family’s detention. Furthermore, the Committee found out that they have also violated Article 24 considering that they have given less effort in providing programs regarding education and recreation for the children under immigration detention.[26]
Recalling the jurisprudence cited in the case of A, detention must not go beyond a period where the state can provide an appropriate justification.[27] On the other hand, the case of D & E and their two children basically involves a family. The decision made by the Committee was based on Article 9 considering the family circumstances as a factor.[28]
Teoh case in April 1994 is a best example of treaties having a great impact to the Australian law. In this case, the immigration official in charge of the deportation matter of the accused made an error of not taking into account a particular convention, the Convention on the Rights of the Child.[29] The Court concludes that government decision makers should make a decision in accordance to the treaty provisions although it is not legislated into the law of Australia.
On 17 December 1986, Olaf Dietrich travelled from Thailand to Melbourne and was arrested after a search in his flat was done by the Australian Federal Police. The result of the search found small amount of heroine but Dietrich said that the police had planted these drugs. As a result, Dietrich appealed to various courts including the Supreme Court but his appeal was refused.[30] He then decided to leave in order to bring his appeal to the High Court of Australia.[31] Due to the absence of a legal representation, the central argument brought on his behalf was miscarriage of justice. Basing on the common law tradition, stating a right to fair trial,he argued that the trial should have been adjourned by the judge up to the time that he was able to get hold of a counsel. In addition, he stated that a counsel at public should have been provided.
The judgement resulted to a decision of a majority from the High Court favouring Dietrich’s argument. The court stated that although they have no power of appointing a counsel to an accused, trial judges must have used their power to adjourn this case for the sake of fairness. As a result, the court granted the appeal and order for a new trial of the case.[32] This case shows that the Court refused to change the common law in order to recognise a new trial of the right to counsel at public expense, aside from the international human rights law.
C Superiority and Shortage of the Australian Approach
International treaties, such as the human rights treaties, could be relevant in Australian domestic law are seen in the interpretation of the constitution, particularly in the judges’ decision. Treaties were best interpreted in the case of Kartinyero v Commonwealth,[33] wherein Kirby J opposed.#p#分页标题#e#
Kirby J’s assumption states that no rule within the international law or any treaty could override the Constitution or any other law validated under it, if a law or a constitutional provision is clearly within power. In addition, if there is an uncertainty, there is a belief that the Australian Constitution, accepted and adopted by the citizens of Australia purposely for the government, is intended not to violate human dignity and human rights.
On the other hand, some judges have used treaties and never doubted. This is seen in McHugh J’s interpretation of the Al-Kateb v Godwin case.[34] In this particular case, the Court believed that the Australian Constitution contains no implication and there was no need to be constructed to be conventional with the international law rules. Accordingly, these rules and its operations are inapplicable to a certain Constitution – the source, not the exercise of, legislative power.
Terms in international treaties cannot create obligations or rights in the Australian domestic law unless there is the presence of legislation. The creation of these obligations and rights are roles of Parliament which is under the Constitution of Australia.[35]
Courts traditionally use treaties, which Australia is a party, with limitations such as a guide in generating the common law and in settling ambiguities in certain legislations – in particular to universal fundamental rights. In addition, provisions of these treaties could be considered in a desertion exercised by administrative decision makers.
As a conclusion, the international law is a source of duties and rights for domestic law only if with legislation. However, the international law may be accepted in statutory interpretations – widely used in Victoria – and in the development of the common law. In addition, treaties have more controversial uses in constitutional interpretation and in judicial review of administrative action.
III Application of International Treaties in China
A Legislation
In late 19th century, international law was introduced to the country of China by the Western missionaries.[36] Treaties were used in order to force China to open and trade with other countries. In China’s interpretation, international treaties are representations of restrictions on national humiliation and sovereignty. In 1864, William Alexander Parsons Martin translated the Elements of International Law of Henry Watson into Chinese and TsungliYamen published it.[37]
In 1864, the first invocation in its diplomacy of China of the International law was made. This happened during the Prussian-Danish War, wherein the Prussians arrested three vessels of the Danish in Bohai Sea. Then, China protested against the arrest done by the Prussia stating that it had violated the international law. China added that Bohai Sea was under China’s jurisdiction and is part of inner ocean of China. As a result, this protest with accordance to the international law made the Prussia release the Danish vessels. This case was considered to be the first realisation of China in the importance of the International law.[38] In 1911–1949, the Chinese Government, Republic of China (ROC), frequently made use of the International law. Still, China, at that time, was weak. The country was involved in civil wars and in the World War. With the aid of the International law, the unequal treaties imposed by the West on Qing Dynasty after the Second World War was abolished.#p#分页标题#e#
With the People’s Republic of China (PRC), applications of the International law of China ushered into a new era. In early years of PRC, China, claiming as a socialist country, has a socialist legal system, which was influenced by its counterpart. Likewise, China’s studies in International law were different from that of the Western in standards and principles. Around 1970, China became more amendable with the International law.
Even though International law was created by the Western civilization, China has accepted it and recognises it – mainly to take a chance to participate in the codification and development of the modern international law.[39] The early international law is considered to be the will of the capitalist countries but after the Second World War, the world’s nature change as well as the International law. The international law became the will of the citizens within the United Nations based upon its Charter.
An agreement strengthening the relationship between People’s Republic of China and Republic of India on 29 April 1954 was signed.[40]This agreement states a mutual benefit and equality through intercourse and trade between India and China’s Tibet region. Together with this agreement, principles were brought out – peaceful co-existence, equality and mutual benefit, non-interference in internal affairs, non-aggression, and mutual respect for territorial integrity and sovereignty – and these became part of the statements, declarations, agreements between China and countries abroad as well as foreign policy documents.[41]China has claimed that they have created Five Principles which can be used among states.
B Judicial interpretations
There are three forms of interpretation legally don in China. The other two are legislative interpretation and administrative interpretation. The third interpretation is known to be the judicial interpretation and from the three interpretations, this is the weakest in terms of legal significance.
In 2002, a year passed after China entered into the World Trade Organization (WTO) and it signifies the further integration of the country into the mainstream of the economy of the world. This further means that China would be participating in co-operation and competition in wider areas. This would bring great effect on the economy of China as well as it will improve the Chinese trade mechanism. The entry of China to the WTO led to challenges and opportunities to the adjudication of its foreign-related commercial and civil cases.
The 1225th meeting, on 11 June 2002, of the Judicial Committee of the Supreme People’s Court made a reply to the question regarding ‘on whether service of judicial documents on overseas companies can be made to their representative offices in China and by leaving the document in such offices.’[42]
In the past few years, the service of judicial documents overseas has been the issue in most of the hearings regarding foreign-related cases in the people’s court.[43] Due to the delay or failure of service, great numbers of trials of cases were unopened. This affected the ability of the people’s court to protect the parties’ interest and rights in a timely way.#p#分页标题#e#
Meanwhile, the Beijing Intermediate People’s Court faced some case where in the Japanese Mitsubishi Motors are sued for damages. The Beijing Office of Mitsubishi Motors, its representative office, was summoned but the office refused to acknowledge the service. Due to this, these documents remained in the office for the completion of the service. The Beijing Office refused this service due to the fact that an overseas company that does not reside in China, according to the Article 238 of Civil Procedural Law of the PRC with regards to international treaties, must be subjected to TheHague Service Convention in priority – not to Article 247 of Civil Procedural Law. They added that overseas service must not be done by leaving these documents in their office. From the objections passed, the Beijing Higher People’s Court requested for instructions from the Supreme People’s Court.
The Judicial Committee adopted the reply of the Supreme People’s Court which objects the Beijing office’s statements. The Supreme People’s Court based their reply from the Article 1 of Hague Service Convention stating that, ‘The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extra-judicial document for service abroad.’[44]
On 30 July 2002, rules concerning the hearing of Enterprise Bankruptcy Cases were issued by the Supreme People’s Council. On 1 September 2002, these rules have taken effect and contain detailed provisions regarding legal-person enterprises. These Rules play important role in promulgating and promoting a consistent bankruptcy law in China.[45]
Because these rules are simply a jurisdiction interpretation, which is limited, the enhancement and establishment of numerous bankruptcy rulesstill urge for a formal and consistent bankruptcy law. Numerous theoretical issues such as foreign-related bankruptcy and individual bankruptcy are on hold for a further discussion. Even so, the Rules of the Supreme People’s Court provided an excellent basis for courts to apply the Bankruptcy Law.
C Benefits and Limitation in Application of the Treaties in Current Domestic Law
Since Cultural Revolution, China’s study of international law has been revitalized but during 1980s, the study pursued the old doctrine of the international law. The China have merely borrowed or copied from Soviet textbooks regarding International law and this is seen in the first textbook of China in international law. The traditional approach to the international remained until in 1990s, China studied the human rights law. With this study, the authority considered individuals to be a subject of the international law thus protecting their rights.
China’s approach towards the international law is changing over time as well as its economic environment and domestic politics. The change started from socialist approach to three worlds approach until the international approach which is now being practiced.#p#分页标题#e#
In 2006, The Supreme people’s Court propagated certain number of instruments such as the Arbitration Interpretation, The Macao Arrangement, The Provisions on Service Abroad and The Hong Kong Arrangement. These were used in the Chinese courts as guidelines at a variety of levels in charging cases, particularly on foreign elements. Statistics shows that, in 2006, Chinese courts already heard almost 23,313 interregional and international commercial and civil cases.[46] With this numerous hearings, some decisions were questioned and criticized due to faulty reasoning.
Today, the judges of China handling foreign cases are continuously improving their ability to properly interpret cases regarding foreign elements, primarily dealing with real cases of international law – Private and Public. With further progress in the study and teaching of international law and the emphasis on administration and legislation of justice in within it, and the application of international law will develop and mastered.
From the beginning, wherein textbooks of international law were translated and used by China, the Government of China interpreted the international law as a military science and an instrument in order to control foreigners.[47] There are a lot of cases, wherein China is involved, focused on the foreign or overseas issues.
The intricatemechanism affecting the domestic application of international treaties on China has enabled other states to limit the implementation of treaties within domestic legal systems. As the succession of the People’s Republic of China to the World Trade Organization has shown, the National People’s Congress Committee can choose whether not to publish the treaty thus it will not be legally valid within the domestic law. However, if the treaty was published, the administration and the court could be excluded.
As a conclusion, International Law and its treaties - in practice or in theory – developed significantly in China. In general, China pursues International regulation and rules to which it is attached.
IV The Possibilities that China Adopt Australian Approach to the Application of International Treaties into Domestic Law
A Which approach China can adopt? Why?
The best approach which China should adopt is the Australian approach regarding international human rights. International human rights law, a significant form of international law, comprises of treaties and agreements done within states which shall take effect on the parties that agreed upon it. It was intentionally designed to give protection to the rights of the citizens at any level, international up to the domestic level. The United States thought of perceiving social and economic rights while the communist bloc is in favour of civil and political rights. As a solution, the UN General Assembly, in 1966, adopted the International Covenant on Civil and political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as instruments in separating the contrasting areas.[48]#p#分页标题#e#
With this country implementing the National Anti-Racism Partnership Strategy, Australia can be identified as one of the countries that best implements the law regarding human rights. The approach was applied to many cases such as the Toonen v Australia,[49]Young v Australia,[50]A v Australia,[51]D &E v Australia,[52]Bakhtiyari v Australia[53] and Elmi v Australia.[54]
Regarding human rights, the country of China shows an unpleasant performance. Many human rights organizations are against the Chinese government because of its lack of legal rights. China’s controversial issues concerning human rights includes their policies like the one-child policy, the Tibetan’s social statuses, capital punishment and the lack of protection concerning the freedom of religion and the press. Other major areas that need concern of the Chinese Government are the nonexistence of independent unions, discrimination of ethnic minorities and rural workers, and the lack of labor rights – in relation to Hukou system. Religious freedom, involving Falun Gonng Groups, Tibetan Buddhists and Christaians, is also a major concern.
In order to obtain a change to the approach of China, there are certain indigenous groups trying to spread out these freedoms such as the Chinese Human Rights Defender (CHRD), Human Rights in China, and China Human Rights Lawyers Concern Group (CHRLCG).
With this approach, the wide country of China would become one of the many countries to attain a good moral view from the eyes of the citizens of other countries. This would affect their countries tourism thus affecting their economic status. Chinese citizen will not be ignorant of their own rights and that they can protect their rights from the abuse of others. China is indeed a great country but with the aid of the international human rights law, China will be greater and might be the greatest country in the world.
B Which approach cannot adopt? Why?
One of Australia’s approaches to international treaties was discussed in Dietrich v The Queen.[55] In this particular case, the High Courts of Australia focused themselves in the writings within the international law and neglect the point that in certain cases, the international law could be altered. As the approach of United Kingdom to the International law, wherein two terms were used to distinguish two different approach namely, the Transformation and Incorporation.
In Incorporation, the international law is incorporated in the domestic law, therefore, considering it as characteristic source of law. On the other hand, Transformation considers international law separately from domestic law and that it should be altered before becoming a part of the national or domestic law.
The state of Australia, considered to be a civil law country, incorporates the international law’s rules into their jurisdiction and national law thus following the term Incorporation. This country favours international law than their own domestic or national law in hearing, judging and solving cases as well as in implementing the preferred punishment. Australia has a lot of list of cases wherein their laws are in need of revisions that would comply with the international law’s rules – Toonen v Australia and C v Australia. But when this international law are followed mainly as it is written and there was no further interpretation of the domestic law, this would result to a mistaken judgement. This is seen in the Dietrich v The Queen wherein the person proven by the domestic law to be the real cause of crimes is found not guilty by the rules of the international law. Because Australia incorporates the international law, they have neglected the claim of the domestic law’s rules.#p#分页标题#e#
This approach of Australia wherein they rely too much on the international law and its treaties must not be adopted by the Government of China. This approach may lead into loosing the essence of laws and rules because international law has certain parts that are not well explained and should be changed or altered. Incorporating international law as a whole into domestic law is the same as incorporating the international law’s mistake which results to a mistaken judgement of a lot of cases. Therefore, China should take into account that International Law is not a source instead; it is only a basis for a Court or a Judge in the decision of a certain case.
V Conclusion
The three branches of government – legislative, executive and judicial branches – must be present in order that legal system will function thus basically require these branches. International law pertains to customary international law’s treaties, conventions and rules which govern the relationships between the states and their interactions to other non-state actors. Domestic law, on the other hand, is a product of customs and legislatures. Although often considered to be the same because they both consist of treaties and customs. The two laws generally differ in terms of enforcement and adjudication.
Domestic laws comes from the rules of international law resulting to be only part or is most likely a substitute law of international law. They incorporate the international law’s rules and often use the international law rather than their own law. In contrast, there are some countries that do the opposite. These countries do not consider the international law and if there should be a need to use them, they are still altered or transformed before they are incorporated. This approach would lead to disparity of countries laws thus there would be no harmony.
In order to balance these approaches, there should be a limit in using the international law and domestic law. Both laws have their own limitations and mistakes which prove that these laws are not perfect. Therefore, the domestic law as well as the international law must be used accordingly and that both laws are open for a transformation with the purpose of having a justified solution to cases and statutes.
[1] Joseph Dainow, ‘The Civil Law and the Common Law: Some Points of Comparison’ (1966-7) 15 American Journal of Comparative Law 419-35.
[2] (1737) Cas Temp Talbot 281.
[3] (1764) 3 Burr 1478.
[4]Ian Brownlie, Principles of Public International Law (Oxford University Press, 6th edition, 2003) 41.
[5](1876) 2 Ex D 63.
[6][1905] 2 KB 391.
[7] Sir William S Holdsworth, Essays in Law and History (1946) 263–266.
[8] Sir HerschLauterpacht, ‘Is International Law a Part of the Law of England?’ (1939) 25 Transactions of the Grotius Society5160.#p#分页标题#e#
[9]Brownlie, above n 7, 43.
[10]Dainow, above n 4, 435.
[11]Codes and Crimes against International Law 2002 (ACT).
[12] Press Office, Germany Strengthens International Law (1 May 2008) Embassy of the Federal Republic of Germany .
[13] Colin B Picker, ‘International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction’ (2008) 41 Vanderbilt Journal of Transnational Law 1104.
[14]Peter Malanczuk, Akehurst’s Modern Introduction to International Law (Routledge, 1997) 36.
[15]Australian Legal Information Institute, Australia International Treaty Making Information Kit (7 November 2011) Treaty Law Resources .
[16]Kioa v West (1985) 159 CLR 550.
[17] Hon Gareth Evans, International Treaties: Their Inpact on Australia (4 September 1995) Australianpolitics.com .
[18] Human Rights Committee, Views:Communication No. 488/1992, 50thsess, UN Doc CCPR/C/50/D/488/1992 (4 April 1994) 2.1 (‘Toonen v Australia’).
[19]Case Studies: Complaints involving Australia (2009) Australia Human Rights Commission .
[20] Human Rights Committee, Views:Communication No. 941/2000, 78thsess, UN Doc CCPR/C/78/D/941/2000 (14 July – 8 August 1994) 2.1 (‘Edward Young v Australia’).
[21]Toonen v Australia, UN Doc CCPR/C/50/D/488/1992, 13 [8.7].
[22]Young v Australia, UN Doc CCPR/C/78/D/941/2000, 15 [10.4].
[23] Human Rights Committee, Views:Communication No. 560/1993, 59thsess, UN Doc CCPR/C/59/D/560/1993 (30 April 1997) 1 (‘A v Australia’).
[24] Human Rights Committee, Views:Communication No. 1050/2002, 59thsess, UN Doc CCPR/C/79/1069/2002 (9 August 2006) 1.1 (‘D & E v Australia’).
[25]D & E v Australia, UN Doc CCPR/C/50/D/488/1992, 20 [4.1].
[26]Ibid 6.1.
[27]A v Austalia, UN Doc CCPR/C/59/D/560/1993.
[28]D & E v Australia, UN Doc CCPR/C/50/D/488/1992.
[29]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
[30]Dietrich v The Queen (1992) 177 CLR 292.
[31] Paul A Fairall, ‘Trial Without Counsel: dietrich v the Queen’ (1992) 4(2) Bond Law Review 235.
[32]Dietrich v The Queen (1992) 177 CLR 292.
[33]Kartinyeri v Commonwealth (1998) 195 CLR 337.
[34]Al-Kateb v Godwin (2004) 199 CLR 160.
[35]Australian Constitution s 51.
[36]ZouKeyuan, China Legal Reform: Towards the Rule of Law (Brill Academic Publishers, 2006) 227.
[37] Wang Tieya (ed), International Law (Beijing: Law Press, 1995) 43.#p#分页标题#e#
[38] Wang Tieya, ‘International Law in China: Historical and Contemporary Perspectives’ [1990-11] Recueil des Cours 232 – 33.
[39]Keyuan, above n 36, 7.
[40]Agreement between the Republic of India and the People’s Republic of China on Trade and Intercourse between Tibet Region of China and India, signed on 29 April 1954, 299 UNTS 59
[41] Wang Xinjian, ‘The Garrison Law is a Very Important Legal Action in Carrying out the Principle of One Country, Two Systems’ (1997) 1 China Law 57-61.
[42] Jin Huang &HuanFand Du, ‘Chinese Judicial practice in Private International Law 2002’ (2005) 4 Chinese Journal of International Law 647-76.
[43]GaoShawei, ‘The Supreme People’s Court’s Interpretation on Service of Judicial Documents on Overseas Companies’ (2002) 5 China Law 37-8.
[44]Convention on the service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed 15 November 1965, ATS 14 (entered into force 10 February 1969).
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[46]Jin Huang, et al, Chinese Judicial Practice in Private International Law: 2006 (Oxford University Press, 2009) 740.
[47]Ahl Bjorn, Summary: The Application of International Treaties in China (2009) .
[48]Human Rights Guide (February 2011) One World Guides .
[49]Toonen v Australia, UN Doc CCPR/C/50/D/488/1992.
[50]Young v Australia, UN Doc CCPR/C/78/D/941/2000.
[51]A v Austalia, UN Doc CCPR/C/59/D/560/1993.
[52]D & E v Australia, UN Doc CCPR/C/50/D/488/1992.
[53] Human Rights Committee, Views:Communication No. 1069/2002, 79thsess, UN Doc CCPR/C/79/D/1069/2002 (6 November 2003) 1.1 (‘Bakhtiyari v Australia’).
[54] Committee Against Torture, Views:Communication No. 120/1998, 22ndsess, UN Doc CAT/C/22/D/120/1998 (25 May 1999) 1.1 (‘Elmi v Australia’).
[55](1992) 177 CLR 292.