PRINCIPLES OF PUBLIC LAW EXAM NOTES

SEMINAR 1: THE CONCEP TION OF P UBLIC LAW WHAT ARE THE DISTINC TIV E CHAR ACTE RISTICS OF A STATE? MORRIS FIVE PRINCIP LES : MORRIS, AN ES SAY ON THE MODE RN POLITICAL STATE (1998) PM 1-36
Morris Five Characteristics of the State Although Morris argues a modern state will not have a clear, unambiguous meaning, 1 he submits five essential characteristics of the state. Firstly, a state must possess territorial integrity2 as modern governance it territorial in nature. 3 Secondly, drawing on this first criterion of territorialisation, Morris distinguishes the modern state from earlier kingships in its transcendence, an order distinct from its agents and institutions.4 Furthermore, a modern state must demonstrate political organisation with centralized institutions wielding power over inhabitants 5 coupled with exclusive 6 authority, or the ultimate source of political power within its realm.7 Finally, Morris argues that a state must command the loyalty of its citizens, as by virtue of their membership, citizens are required to obey their law. 8 A state must maintain continuity in time and space which 1. Continuity in time and space a. Territory (space) b. Just because the government and the leadership changes doesnt mean the state changes 2. Transcendence a. There is transcendence between the government and the state, you could have a completely different government but the state would remain. b. The state is greater than its institutions c. There are agents of the state- ie government, military etc, but the state transcends them d. There is a clear difference between the state and the government 3. Political Organisation a. Formally coordinated, centralized political authority b. The rule has to be direct and territorial, there must be real connection c. Legitimate political organisation 4. Sovereignty/Authority (within its own borders) a. The state has the authority within its order b. The right of a state to have control within its own territory 5. Allegiance a. The members of the state are loyal to the state b. You can be an objector without being disloyal, because the act of being consciously disloyal is in itself a recognition of theoretical allegiance in the first place. i. Gives rise to question of identity and maybe nationhood

Christopher Christopher 3 Christopher 4 Christopher 5 Christopher 6 Christopher 7 Christopher 8 Christopher

Morris, An Essay on the Modern Political State (1998) 20, 45. Morris, An Essay on the Modern Political State (1998) 30, 45. Morris, An Essay on the Modern Political State (1998) 36, 45. Morris, An Essay on the Modern Political State (1998) 37, 45. Morris, An Essay on the Modern Polit ical State (1998) 37, 45. Morris, An Essay on the Modern Political State (1998) 38, 45. Morris, An Essay on the Modern Political State (1998) 39, 45. Morris, An Essay on the Modern Political State (1998) 41, 45.

Morris also discusses the possible erosions to state power: Morris, An Essay on the Modern Political State (1998) PM 1-36 Morris Possible Erosions to State Power In The Modern State Morris discusses contemporary challenges to state power and sovereignty. Within the realm of progressive globalisation, Morris identifies the possible erosion of the influence and power of states in the years to come.9 Namely, he identifies globalised trade, the growth of international law and the handing over of sovereign rights (over internal affairs as with the European Union in relation to human rights) as lessening the economic powers of government and increasing the interdependence of states10 as well as altering the terms of political discourse and interaction.11 However, he argues that these challenges may serve to reinforce statehood. 12 States are becoming less self sufficient than they may once have been PM32 pp52 However this may be seen to reinforce statehood as it requires states to act in tandem with each other and in itself requires the acknowledgement of states themselves.

CR AWFORD DISCUSSES T HE FIVE PRINCIP LES OF ST ATEHO OD: JAMES CR AWFORD, THE CREATION OF STAT ES IN INTERNATIONAL LA W (2 N D ED, 2006) PM 37-42
Crawfords Five Characteristics of the State (more recent than Morris) In exploring the definition of a state as relates to international law, James Crawford recognises the open texture13 of statehood yet nevertheless argues that there are five exclusive legal characteristics of states. Firstly, a state must have plenary competence over external affairs, foreign policy or other dealings in the international sphere. 14 Secondly, Crawford draws on the United Nations Charter Article 2(7) arguing that states are exclusively competent with respect to their internal affairs.15 Crawford further argues states are autonomous to international process, jurisdiction, or settlement,16 and that all states are equal in international law at a basic level.17Crawfords final characteristic maintains, in line with the Lotus presumption of the International Court of Justice, derogations from the above principles are not to be assumed in light of international law. 18 1. 2. 3. 4. 5. Competence to enter into treaties and international The competence within the domestic sphere Owns consent to international law- no one can make you enter into international obligations Equality of states- just because a state is small doesnt make it any less of a state Derogations from the above rules are not presumed- they are foundational, a state must comply with them.

WHAT IMPLIC ATIONS DO THESE HAVE FOR INTERNAL ORGAN IS ATIO N OF THE STATE
The growing influence of international law will decrease the internal sovereignty of states- human rights ect... The EU for example is adjudicating over internal state matters in human rights

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Christopher Morris, An Essay on the Modern Political State (1998) 53. Christopher Morris, An Essay on the Modern Political State (1998) 54. 11 Christopher Morris, An Essay on the Modern Political State (1998) 54. 12 Christopher Morris, An Essay on the Modern Political State (1998) 54. 13 James Crawford, The Creation of States in International Law (2 nd ed, 2006) 40. 14 Crawford draws on the ICJ report of Military and Paramilitary Activities in and against Nicaragua , (1986) ICJ Rep 133 [256] in James Crawford, The Creation of States in International Law (2 nd ed, 2006) 40. 15 James Crawford, The Creation of States in International Law (2 nd ed, 2006) 41. 16 James Crawford, The Creation of States in International Law (2 nd ed, 2006) 41. 17 James Crawford, The Creation of States in International Law (2 nd ed, 2006) 41. 18 James Crawford, The Creation of States in International Law (2 nd ed, 2006) 41-42.

WHAT IMPLIC ATIONS DO THESE HAVE FOR EXTERN AL REL ATIONS WHAT IS THE DISTINCTIO N BETWEEN DOMESTIC AND P UBLIC INTERN ATION AL LAW? WH AT IS THE REL AT IONSHIP BETWEEN THEM?
Shearer on domestic and public international law Shearer argues the relationship between public international law and domestic law should be seen essentially in terms of accommodation and harmonisation19 and that any strict adherence to either monism or dualism is not justified. 20 In a comparative analysis Shearer highlights the various ways states have sought to harmonise public international and domestic law.21 However he concludes, in line with key characteristics of the state demonstrated by Morris and Crawford,22 all states retain the competence to control the extent to which international law impacts on domestic affairs.23 The test for seeing where there is a conflict: y Does a principle of international law conflict with domestic law? Do they cover the same area? Ie diplomatic immunity. Using the test: y The relationship between two states can impact the relationship between the individual and the state. Ie parking on 5th avenue- diplomat y Contracts between individuals between countries, ie Sweden and Australia

DRAWING ON CURRENT A FF AIRS, WH AT LEG AL ISSUES FAL L WITHIN TH E SPHERE OF P UBLIC LAW? IS THERE A BRIGHT LINE BETWEEN PRIV ATE LAW AN D P UBLIC LAW.
Victorian Charter of Human Rights and Responsibilities?

IN WHAT CIRCUMST ANCE S MIGHT IT BE NECESS ARY TO DISTING UISH T HE P UBLIC FROM THE P RIVATE SP HERE FOR THE P URP OSES OF P UBLIC LAW? WHAT CRITERIA MIGHT BE USED F OR THIS P URP OSE? SEMINAR 2: CONCEP T OF THE STATE THE STATE AND TERRIT ORY THE LINK BETWEEN STATES AND THEIR TERRIT ORY MORRIS: IT IS A CRUICIAL ELEMENT OF MODERN STATEHOOD

Comment [RA1]: SEM 1. Q 5 DRAWING ON CURRENT AFFAIRS, WHAT LEGAL ISSUES FALL WITHIN THE SPHERE OF PUBLIC LAW? IS THERE A BRIGHT LINE BETWEEN PRIVATE LAW AND PUBLIC LAW. Ask Margaret Comment [RA2]: SEM 1. Q 6 IN WHAT CIRCUMSTANCES MIGHT IT BE NECESSARY TO DISTINGUISH THE PUBLIC FROM THE PRIVATE SPHERE FOR THE PURPOSES OF PUBLIC LAW? WHAT CRITERIA MIGHT BE USED FOR THIS PURPOSE? Ask Margaret

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I. A. Shearer, The relationship between international law and domestic law in Brian R. Opeskin and Donald R. Rothwell (eds), International Law and Australian Federalism (1997) 34. 20 I. A. Shearer, The relationship between international law and domestic law in Brian R. Opeskin and Donald R. Rothwell (eds), International Law and Australian Federalism (1997) 34. 21 I. A. Shearer, The relationship between international law and domestic law in Brian R. Opeskin and Donald R. Rothwell (eds), International Law and Australian Federalism (1997) 38-40. 22 See Crawfords third characteristic of a state in James Crawford, The Creation of States in International Law (2 nd ed, 2006) 41 and Morris fourth criteria in Christopher Morris, An Essay on the Modern Political State (1998) 39, 45. 23 I. A. Shearer, The relationship between international law and domestic law in Brian R. Opeskin and Donald R. Rothwell (eds), International Law and Australian Federalism (1997) 34.

Morris: link between states and their territory Looking at the state from an historical perspective, Morris distinguishes the modern state from its predecessors, the Greek polis or Roman Empire, in that governance was historically essentially over people and not land.24 In distinguishing feudalism and the modern state, Morris further argues that individuals obligations and rights depended on ones place in the matrix of personal ties, not on ones location in a particular area.25 Morris then discusses the territorial nature of modern states stating that it is important for two reasons; firstly, because in the modern day virtually all inhabitable parts of the globe are the territory of some state;26 and secondly because the specific law of nations apply to (virtually) all who find themselves within these boundaries.27 The significance of the new meaning of geography is that governance becomes divorced from the personal relations evident in feudalism. 28 This in turn has led to the separation of state and government, or transcendence, Morris second essential characteristic of the modern state.29 Essentially, Morris argues that the territorial characteristic of the modern state is the most definitive and distinguishing feature. Concept of state and territory points hes making about territories o all inhabitable parts of the globe are the territory of some state o law applies to everyone within territories  except: y diplomats y messengers

TREATY OF WESTPHALIA
Treaty of Westphalia and Territorial integrity The importance of territory was highlighted in the Treaty of Westphalia 1648 between French and England. In an attempt to prevent future Differences arising in the Politick State the free exercise of Territorial Right... never can or ought to be molested by any whomsoever upon any manner of pretence.30 In this way, the treaty established respect between states of their mutual territorial integrity. y ended the religious wars of years and years. The major powers came together to agree on the principles that they would continue to operate on. a. Territorial boundaries would be respected

UN CHARTER
The UN Charter on territorial integrity The first two articles of the United National Charter reinforce the notion of territorial integrity consolidating and lending weight to Morris thesis that such a characteristic is essential to the modern conception of the state. The

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Christopher Morris, An Essay on the Modern Political State (1998) 33. Spruyt, The Sovereign State and Its Competitors (1965) 39. As quoted by Christopher Morris, An Essay on the Modern Political State (1998) 33. 26 Christopher Morris, An Essay on the Modern Political State (1998) 36. 27 Christopher Morris, An Essay on the Modern Political State (1998) 36. 28 Christopher Morris, An Essay on the Modern Political State (1998) 37. 29 Christopher Morris, An Essay on the Modern Political State (1998) 37. 30 Treaty of Westphalia (1684) art LXIV

Charter, written to strengthen universal peace31 after the scrounge of war32, recognises the fundamental requisite of territorial integrity33 and the supremacy of states over matters within their domestic domain.34 Articles 1 and 2: reinforces the notion of territorial integrity y Result of scrounge of war y Article 1: a. International peace and security y Article 2: a. Principles Good faith (2.2) in international law Article 2(4) must be read with article 51

THE BASIS FOR BRITIS H SETTLEMENT OF AUST R AL IA: HOW AUSTR ALIA W AS ACQ UIRED JAMES CRAWFORD: CREA T ION OF STATE S IN INTERNAT ION AL L AW
Crawford on the territory of Australia In discussing the legal status of indigenous groups, Crawford discusses the three possibilities of acquisition: conquest, cession and residual category of terra nullius.35 Crawford submits to the discussion three main reservations on this latter category which had been developed by late-nineteenth-century writers: that the idea of terra nullius was itself a new concept and not unchallenged at the time of Australian occupation; 36 that state practice of the concept was not unambiguous; 37 and, that colonial practice itself was to a great degree conventional 38 even if it did not have strong legal foundations. 39 Despite the hazy legal foundations of terra nullius Crawford suggests there were two sides to the concept; firstly the principle could be invoked if the land was literally empty, or secondly if the land was devoid of civilisation. This latter concept was expanded and defined as a lack of political and social organisation, and possibly included a lack of land cultivation. At the heart of the concept was the supposed inability of savages , or more specifically an unsettled horde of wandering savages not yet formed into civil society40 to maintain sovereignty. Under the authority of the International Court in Western Sahara, and with

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Charter of the United Nations , art 1(1) Charter of the United Nations preamble

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All Members shall refrain in their international relations from threat or use of force against territorial integrity Charter of the United Nations art 2(4)
34

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Nothing contained in the Present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state Charter of the United Nations art 2(7)
35

James Crawford, The Creation of States in International Law, (2nd ed, 2006) 258 James Crawford, The Creation of States in International Law, (2nd ed, 2006) 259-60 James Crawford, The Creation of States in International Law, (2nd ed, 2006) 260 James Crawford, The Creation of States in International Law, (2nd ed, 2006) 260 James Crawford, The Creation of States in International Law, (2nd ed, 2006) 260 Wheaton as quoted in James Crawford, The Creation of States in International Law, (2 nd ed, 2006) 265

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knowledge of the possibly disjointed but existing political and social organisation of Indigenous Australians, Crawford suggests Australias almost unique beginnings under Terra Nullius are legally flawed.41 Three ways states can acquire territories y Conquest- force y Cession- agreement y Occupation a. Terra Nullius- where there is no one there to take it from Concept of terra nullius y There was no one there (empty), or y Devoid of civilization (you cant be sovereign of youre savage) a. No political organization b. No social organizations c. Maybe- no land cultivation y The view of the law was not unchallenged even at that time (when terra Nullius was created)

MABO V QUEENSL AN D
Mabo and Others v The State of Queensland [No 2] (1992) 175 CLR 1 y y y After Mabo decision the development of the Native title act How does Mabo relate to the acquisition of territory by the state Gleeson: its not about determining the sovereignty of the state, but a. There cant be a contest between the judiciary and the executive on sovereignty, because without sovereignty the courts could not act. b. He wants to work out what the consequences of the acquisition are, not whether the acquisition was right or wrong in the first place What we get from Mabo: c. Understand acquisition of sovereignty in Australia d. Courts cannot say acquisition was wrong. e. Consequences of that acquisition have ramifications today. f. Justifications for conquest 32-33

LEG AL SIGNIFIC ANCE O F TERRITORIAL L IMITS

EXTRAT ERRITORIALITY
y States (&Ts) can embrace extraterritoriality if there is a sufficient nexus between the territory and the action

41 42

James Crawford, The Creation of States in International Law, (2nd ed, 2006) 266-67 Mabo and Others v The State of Queensland [No 2] (1992) 175 CLR 1 (Brennan J) 32

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Australia Act (1986) section 2: It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extraterritorial operation.

Section 51(xxix) power to legislate with respect to external affairs (borrowed from the Statute of Westminster Adoption Act 1942 (Cth) section 3) Case of XYZ a. Sex tourism in Thailand b. Normally the law of the area is the law people must abide by c. But Australia has enacted extraterritorial legislation Crimes Act (cth) Allowable by section 51(28) d. Principles of the case: Principles of international law 1. There are principles other than the extraterritoriality a. Sights Brownlie i. Nationality- where you retain your laws from your homw country ii. Passive nationality- where youre punished for doing something in another country

THE STATE AND PEOP LE WHO ARE THE P EOP LE AND W HY DOES IT MATTER?
Citizens grant legitimacy to power and power governs all people Citizenship through blood v through territory of birth Singh v Commonwealth of Australia Pf: Singh Non Australian Parents Born in Australia Claim: not an alien as defined by the Constitution 51(19) The deportation act was unconstitutional in its ability to deport her was not included in 51(19) Df: Commonwealth She was an alien Gleeson: it was the intention of the constitution to have a narrow definition of citizen, and also to leave power with the parliament to define citizenship.
Comment [RA3]: Ask Margaret Who are the people and why does it matter? Does people mean citizen?

THE MUT UAL RIGHTS AND OBLIG AT IONS OF PEOP LE AND THEIR STATE
Galligan/Chesterman. Why was citizenship purposively empty? o Because indigenous people were citizens without rights Three elements of modern citizenship: civil, political and social. Timeline: o At colonization, British subjects o In Vic had the vote

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1902- vote taken away (comth enfranchise act) from Vic and established the lowest common denominator 1948- became citizens some states gave their people the right to vote 1962 all Aborigines given the vote 1967 referendum on constitution

Citizens to states XYZ Case: in terms of the concept of citizenship Can the cwlth regulate the conduct of citizens outside australia Gives a nice example of rights/obligations o Obligations extend abroad- if an extraterritorial purpose exists State to citizens: Hicks v Ruddock: David Hicks was seeking an order of habeas corpus (an individuals right to challenge his incarceration and have the charges against him presented in a court) and judicial review on several grounds of the Australian Governments decision not to request his release and repatriation. Hicks: implied duty of protection to a citizen in his predicament, not just a duty to consider that citizens request Ruddock: summarily dismiss hearing (as there is no possibility of success for Hicks) Good example of the fact that states have obligations towards citizens.

THE HISTORIC AL, LEG AL AND SOCIAL FRAMEWO RK FOR AUSTRALIAN CITIZENSHIP
Galligan/Chesterman. Timeline: o At colonization, British subjects o In Vic had the vote o 1902- vote taken away (comth enfranchise act) from Vic and established the lowest common denominator o 1948- became citizens some states gave their people the right to vote o 1962 all Aborigines given the vote o 1967 referendum on constitution

THE LEGITIM ACY OF THE SYSTEM OF P UBLIC L AW IN BOTH DOMESTIC AND INTERN ATION AL LAW
Thomas M. Frank Fairness in International Law and Institutions PM107 Voluntary compliance Sacrifice some rights for others social contract o the social contract as exists at the international level Hobbs- chaos to order through government Rousseau- freedom to chose government Kant- utilitarianism- good for the greatest number , moral universalism, we can universalize the concepts of morality, and they exist in abstract, they are not relative but universal

Discussed ideas of legitimacy as applied to the state and to the states in international law. Duality of the social contract to domestic and international relationships