Does international law override national sovereignty?

‘One of the phrases now frequently heard in public debate in Australia is that some conduct of a government, usually the federal government, is “contrary to international law”. … …

The problem about the phrase “contrary to international law” is that it is essentially meaningless when a nation-state is observing its own domestic law. There may, of course, be different questions when one country takes action against another without the authorisation of the UN Security Council. As was demonstrated, however, when Russia annexed the Crimea in 2014, there may be nothing the UN can do about such an action.

Otherwise, however, every nation-state is governed by its own domestic laws and cannot be directed by any international organisation, such as the UN, to override those laws. It is certainly possible for a nation-state to adopt the provisions of an international treaty and make them part of its domestic law. Australia has entered into hundreds of treaties in recent decades and some of these have been used as the basis for federal legislation. … …

This use of international treaties by the commonwealth has long been disapproved of by the states on the ground that, when the Constitution was drafted in the 1890s, such treaties were extremely rare and it was never envisaged that they would become a major source of commonwealth power and allow a significant diminution of state powers.

As in many other areas, however, the High Court has endorsed a wide meaning for the external affairs power in the Constitution and upheld this substantial increase in federal authority. … …

… … It is important that the ultimate responsibility for the laws that apply in any country rests with the legislators who have been elected by the members of that community. It would be quite unsatisfactory for any international body, including the UN, to be able to override domestic laws when they are not accountable to the electors of the country in question.

There is a view, however, among many of the international civil servants who work for those organisations and in the ever-growing ranks of human rights lawyers that the rulings of international bodies such as the UN should take precedence over the laws of any particular country.

Many of those who hold this view have no real attachment to any individual nation and do not see why national communities should have the final say over their own destinies. … …’

(The above paragraphs are extracts from ’Assange ruling: international law no match for sovereign states’ by Michael Sexton in the ‘Weekend Australian’ of 11February 2016. Michael Sexton SC was described in the paper as the author of several books on Australian history and politics. I remember him as a Solicitor-General)

 

 

 

 

 

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