1 See U.S. CONST, art. VI; see also Neth. Const, arts. 93 and 94.

2 Walker v. Baird, 1894 A.C. 491; Attorney-General (Canada) v. Attorney-General (Ontario), 1937 A.C. 326; Polites v. Commonwealth, 70 C.L.R. 60 (1945); Chow Hung Ching v. R., 77 C.L.R. 449 (1948); Bradley v. Commonwealth, 128 C.L.R. 557 (1973).

* See, e.g., Vienna Convention on the Law of Treaties, Arts. 27 and 46, UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

4 Wildhaber, L., Treaty-Making Power and Constitution 341 (1971)Google Scholar.

5 Wheare, K., Federal Government 186 (4th ed. 1963)Google Scholar; Sorensen, , Federal States and the International Protection of Human Rights, 46 AJIL 195, 218 (1952)Google Scholar; see also Looper, , Limitations an the Treaty Power in Federal States, 34 N.Y.U.L. Rev. 1045, 1046-47 (1959)Google Scholar.

6 252 U.S. 416 (1920) (upholding federal legislation implementing a treaty obligation dealing with the protection of migratory birds, a subject over which the federal Government possessed no explicit legislative power).

See generally Henkin, L., Foreign Affairs and The Constitution 143-k48 (1972)Google Scholar.

7 President Carter, for example, in transmitting four human rights instruments to the Senate in 1978 for its advice and consent, recommended, inter alia, reservations to the International Convention for the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights that would limit the obligation of the United States to the implementation of those provisions “over whose subject matter the Federal Government exercises legislative and judicial administration.” Where the states exercised jurisdiction, the federal Government would simply “take appropriate measures to the end that the competent authorities of the constituent units may take appropriate measures for the fulfillment” of these instruments. Letter of Transmittal to the Senate, Feb. 23, 1978, reprinted in U.S. Ratification of the Human Rights Treaties 83-103 (Lillich, R. ed. 1981)Google Scholar.

8 See primarily Constitution Act 1867, sees. 91 and 92 (formerly the British North American Act 1867, name changed by the Constitution Act 1982, itself sched. B to the Canada Act 1982 (UK), ch. 11).

9 Constitution Act 1867, sec. 92(13).

10 The Conventions were the Hours of Work (Industry) Convention of 1919, the Weekly Rest (Industry) Convention of 1921 and the Minimum Wage-Fixing Machinery Convention of 1928. For the texts of these instruments, see International Labour Office, International Labour Conventions And Recommendations 1919-1981 (1982).

11 Section 132 provides: “The Parliament and Government of Canada shall have all Powers necessary and proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.”

12 Tennant v. Union Bank of Canada, 1894 A.C. 31.

13 Attorney-General (Canada) v. Attorney-General (Ontario), 1937 A.C. 326, 353-54.

14 See generally Gotlieb, A., Canadian Treaty-Making 77-83 (1968)Google Scholar; and Macdonald, R. St. J., Conventional International Law and the Domestic Law of Canada, in Jus Et Societas: Essays in Tribute To Wolfgang Friedmann 220, 238-40 (Wilmer, G. ed. 1979)Google Scholar.

15 The Australian Constitution contains no explicit grant of treaty-making power, but such a power is considered inherent in the prerogatives of the federal Executive, which have devolved from the British Crown. See Doeker, G., The Treaty Making Power in the Commonwealth of Australia 50-52, 108-13 (1966)Google Scholar. Section 51(29) of the Constitution gives the federal Government the power to make laws “with respect to external affairs.” In the United States, in contrast, a “foreign relations” power is inferred from the explicit treaty power and the President’s power to appoint and receive ambassadors (U.S. const, art. II).

16 55 C.L.R. 608 (1936).

17 Air Navigation Regulations, made under the Air Navigation Act 1920 (Cth), §4, which authorized the adoption of regulations to give effect to the Paris Convention for the Regulation of Aerial Navigation of 1919, 11 LNTS 174.

18 Justices Evatt and McTiernan thought the power extended to the implementation of treaties generally and even to the implementation of nonbinding recommendations. 55 C.L.R. at 687. Chief Justice Latham believed that the power included the implementation of treaties generally. Id. at 644. Justice Starke took a view similar to that of Justice Dixon. Id. at 658. See generally Zines, L. R., The High Court and the Constitution 220-30 (1981)Google Scholar.

19 “[A)ir navigation may well be regarded as an entire subject no part of which could be considered as necessarily of no concern to other countries.” 55 C.L.R. at 670.

20 Koowarta v. Bjelke-Petersen, 56 Australian Law Journal Reports [Austl. L.J.R.] 625 (1982), 39 Austl. L.R. 417 (1982); Commonwealth v. Tasmania, 57 Austl. L.J.R. 450 (1983), 46 Austl. L.R. 625 (1983).

21 See Bailey, Australia and the International Labour Conventions, 54 Int’l Lab. Rev. 285, 288-90 (1946); see also Parliamentary Paper No. 197 of 1969, Review of Australian Law and Practice Relating to Conventions Adopted By The International Labour Conference 7 (1969); G. Doeker, supra note 15, at 109-12, 231; Stoop, De, Australia’s Approach to International Treaties on Human Rights, 5 Austl. Y.B. Int’l L. 27 (1970-73)Google Scholar. Other examples of deference to the perceived demands of federalism include Australia’s reservations to Articles 2 and 50 of the International Covenant on Civil and Political Rights (see Triggs, , Australia’s Ratification of the International Covenant on Civil and Political Rights: Endorsement or Repudiation?, 31 Int’l & Comp. L.Q. 278 (1982)Google Scholar), which have recently been removed. See Dep’t of the Attorney-General, Press Release, International Covenant on Civil and Political Rights—Removal of Reservations and Declarations, Dec. 10, 1984. Even after the Koowarta decision, however, Australia sought the insertion of a federal clause in the United Nations Draft Convention on Torture, UN Doc. E/CN.4/1983/63. The proposal was later withdrawn.

22 660 UNTS 195, reprinted in 5 ILM 352 (1966).

23 Id., Art. 2(d).

24 Racial Discrimination Act 1975 (Cth), §9, infra note 27.

25 Id., §12, infra note 27.

26 Koowarta v. Bjelke-Petersen, 56 Austl. LJ.R. 625, 627 (1982).

27 Sections 9 and 12 read in pertinent part:

9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom. . . .

(2) The reference in sub-section (1) to a human right or fundamental freedom . . . includes a reference to any right of a kind referred to in Article 5 of the [Racial Discrimination] Convention. [Article 5(d)(v) refers to the right “to own property alone as well as in association with others.”]

12. (1) It is unlawful for a person . . .

(a) to refuse or fail to dispose of any estate or interest in land . . . to a second person . . .

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

28 Queensland made two other arguments. The first was to deny that Koowarta had standing to bring the action, as the refusal to transfer the lease had been made to the Aboriginal Land Fund Commission and not to Koowarta. It was said that the commission, being a corporation, was incapable of possessing human rights. Only the Chief Justice indicated his sympathy with this argument. Koowarta, 56 Austl. L.J.R. at 629-31. The second argument was that Koowarta could not be described as a relative or associate of the commission for the purposes of §12, but this contention was not accepted by any judge.

29 Austl. Const, sec. 51(26). For further discussion, see text accompanying notes 85-91 infra.

30 Austl. Const, sec. 51(29).

31 56 Austl. L.J.R. at 631-32 (Gibbs, C.J.), with whom Justice Aickin concurred; id. at 657-58 (Wilson, J.); id. at 665 (Brennan, J.). Justice Mason did not consider it necessary to discuss the scope of sec. 51(26), id. at 648; while Justice Murphy indicated that the power would support the legislation, id. at 656.

32 Id. at 647 (Stephen, J.); id. at 653 (Mason, J.); id. at 656 (Murphy, J.).

33 Commentaries on Koowarta include: Finnis, , The Power to Enforce Treaties in Australia—High Court goes Centralist?, 3 Oxford J. Legal Stud. 126 (1983)Google Scholar; Note, , 13 Fed. L. Rev. 360 (1983)Google Scholar; Note, , 13 Melb. U.L. Rev. 635 (1982)Google Scholar; Note, , 56 Austl. L.J. 519 (1982)Google Scholar; Crock, , Federalism and the External Affairs Power, 14 Melb. U.L. Rev. 238, 252-56 (1983)Google Scholar.

34 Such as against interference with freedom of interstate commerce, Austl. Const, sec. 92; discrimination against states that impairs the existence or functioning of the states, 56 Austl. L.J.R. at 664 (Stephen, J.); id. at 649 (Mason, J.); id. at 655-56 (Murphy, J.). The Court was unanimous on this point: cf. id. at 634 (Gibbs, C.J.); id. at 660 (Wilson, J.).

35 The phrase is that of Justice Dixon in the Burgess case; see 55 C.L.R. at 669.

36 56 Austl. L.J.R. at 655-56. Compare Justice Mason’s more extended formulation:

It is difficult to perceive why a genuine treaty, especially when it is multi-lateral and brought into existence under the auspices of the United Nations or an international agency, does not in itself relate to a matter of international concern and is not in itself an external affair. It is scarcely sensible to say that when Australia and other nations enter into a treaty the subject matter of the treaty is not a matter of international concern—obviously it is a matter of concern to all the parties. . . .

. . .

Agreement by nations to take common action in pursuit of a common objective evidences the existence of international concern and gives the subject-matter of the treaty a character which is international.

Id. at 651. Justice Brennan took a similar view, describing the search for the quality of being “indisputably international” in the subject matter of a treaty as “a work of supererogation”: “The international quality of the subject is established by its effect or likely effect upon Australia’s external relations and that effect or likely effect is sufficiently established by the acceptance of a treaty obligation with respect to that subject.” Id. at 664.

37 Id. at 645. The significance of the possibility of a purely “domestic” treaty and of this extra quality of “internationality” has been overstated by commentators on the Koowarta decision. It has been argued, for example, that Justice Stephen’s position is, at least in theory, the same as that of the minority (Finnis, supra note 33, at 127), or at least quite distinct from that of the majority ( Coper, M., The Franklin Dam Case 6 (1983)Google Scholar). Unless made in bad faith, however, a treaty must have an international aspect. The very notion of a treaty implies agreement, a meeting of national minds, and an intention to create some sort of reciprocal rights and duties between the parties to it. By definition, this must concern the relationship between the parties and the treaty becomes simply an aspect of this international relationship. Thus, Justice Stephen’s ostensibly more qualified position on the implementation of treaty obligations reduces in practice to a position similar to that of Justices Mason and Brennan, as is recognized by Justice Brennan in the Tasmanian Dam case, 57 Austl. LJ.R. 450, 527 (1983).

38 Justice Mason described this simply as the requirement that there be a “genuine” treaty. 56 Austl. LJ.R. at 651. Justice Stephen, on the other hand, considered that a treaty which could be said to be a case of “a foreign government lending itself as an accommodation party so as to bring a particular subject-matter within the other party’s treaty power” would not fall within the scope of the external affairs power. Id. at 645. Justice Brennan suggested a less sinister variation. He disqualified those obligations accepted under a “colourable” attempt to convert a matter of international concern into an external affair. This is where a treaty obligation has been assumed merely as a means of conferring legislative power upon the Commonwealth Parliament. Id. at 664.

39 Prohibition of Discrimination Act 1966 (S. Austl.).

40 56 Austl. LJ.R. at 632.

41 Id. at 633-34, 638. Justice Wilson’s approach was similar, id. at 658. The category included the extradition of fugitive offenders to other countries, McKelvey v. Meagher, 4 C.L.R. 265 (1906); the prohibition of the publication of material that could create antagonism within Australia against the government of a country with which Australia maintained friendly relations, R. v. Sharkey, 79 C.L.R. 121 (1949); the vesting of sovereignty in areas outside Australia, New South Wales v. Commonwealth (Seas and Submerged Lands case), 135 C.L.R. 337 (1975); the deportation of aliens, Robtelmes v. Brenan, 4 C.L.R. 395 (1906); and the implementation of treaties of peace, Roche v. Kronheimer, 29 C.L.R. 329 (1921); Jolley v. Mainka, 49 C.L.R. 242 (1933). The less obviously international Burgess case, 55 C.L.R. 608 (1936), was explained as affecting the relations between Australia and other nations “in some direct way”; intrastate practice has an effect on interstate and overseas air navigation since all aircraft use the same facilities and must obey the same rules.

42 Koowarta, 56 Austl. L.J.R. at 634.

43 “[T]he test must be whether the provisions given effect have themselves the character of an external affair, for some reason other than that the executive has entered into an undertaking with some other country with regard to them,” stated the Chief Justice. Id. at 638. Justice Wilson employed the same term as the majority (“international character”) to describe the quality a law must have in order to pass constitutional muster. However, he argued that the presence of this characteristic is determined by an examination only of the operation of the legislation and not the reasons for its enactment. Id. at 658-59.

44 Id. at 638.

45 Id. at 637. Justice Wilson made a similar prediction:

[W]hat is emerging is a sophisticated network of international arrangements directed to the personal, economic, social and cultural development of all human beings. The effect of investing the Parliament with power through [the external affairs power] in all these areas would be to transfer to the Commonwealth virtually unlimited power in almost every conceivable aspect of life in Australia. . . .

Id. at 660-61.

46 This approach is plain in the judgment of Justice Wilson. Although he conceded that “of all Australia’s international obligations there must be few, if any, of greater humanitarian importance than the obligation to strive for racial equality,” he went on:

[T]he outstanding importance of this particular obligation must not blind us to the wide-ranging implications of the next step in the Commonwealth’s argument. . . . that the existence of this obligation necessarily brings into existence an external affair. . . . [I]f this argument holds good for an obligation such as the elimination of racial discrimination, it must likewise hold good for all the other important obligations which arise out of Australia’s international relations. . . . Both economically and socially the earth is now likened to a global village where the international community concerns itself increasingly with matters which formerly were regarded as only of domestic concern.

Id. at 659.

47 Id.

48 Justice Wilson referred in this context to the majority opinion in National League of Cities v. Usery, 426 U.S. 833 (1975). Koowarta, 56 Austl. L.J.R. at 661. In Usery federal legislation extending fair labor standards to employees of U.S. states and their subdivisions was held unconstitutional on the ground that it would “impermissibly interfere with the integral governmental functions of these bodies.” 426 U.S. at 851. The reference to Usery is an ambiguous one, but in any event its implications are untenable. Justice Wilson may have intended to mean that the ability of a state to decide for itself how minority racial groups should be treated is essential to its continued existence and ability to function effectively in the federal system. The equal protection clause of the Fourteenth Amendment would of course preclude such an extension of Usery in the United States. Oregon v. Mitchell, 400 U.S. 112 (1970), which Justice Wilson also invokes to support his denial of federal power, makes precisely this point: while a federal law could not establish age qualifications for voters for state offices because this is an essential state function, id. at 125 (a proposition that was in any event later expressly invalidated by the Twenty-sixth Amendment to the Constitution), it could ban literacy tests as qualifications for voting in state elections because “there was a long history of the discriminatory use of literacy tests to disenfranchise voters on account of their race,” id. at 132. Moreover, subsequently the Supreme Court has considerably undermined, and recently repudiated, the Usery notion relied upon by Wilson, J. See Garcia v. San Antonio Metropolitan Transit Auth., 53 U.S.L.W. 4135 (U.S. Feb. 19, 1985); E.E.D.C. v. Wyoming, 103 S.Ct. 1054 (1983); United Transp. Union v. Long Island R.R., 455 U.S. 678 (1982); Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981). On the other hand, Justice Wilson may have been concerned in particular about the potential of the external affairs power as a basis for limitless federal legislation and may have sought to maintain fixed areas of power. This position is tantamount to an affirmation of the long since rejected “reserved powers” doctrine. See Amalgamated Soc’y of Engineers v. Adelaide S.S. Co. Ltd., 28 C.L.R. 129 (1920). In any event, Wilson, J. does not refer to the most relevant U.S. case on this issue, Missouri v. Holland, 352 U.S. 416 (1920), which would support the majority’s view.

49 See Brownlie, I., Principles of Public International Law 513, 596 (3d ed. 1979)Google Scholar.

50 Convention, supra note 22, Art. 1(2), (3) and (4).

51 Procedures for Dealing with Communications relating to Violations of Human Rights and Fundamental Freedoms, ESC Res. 1503 (XLVIII), 48 UN ESCOR Supp. (No. 1A) at 8, UN Doc. E/4832/Add.l (1970). The resolution authorizes a working group of the Sub- Commission on Prevention of Discrimination and Protection of Minorities to consider and refer to the Sub-Commission communications that “appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.”

52 Koowarta, 56 Austl. L.J.R. at 640.

53 “It could not in my opinion be said that the refusal of the Minister to grant his consent was a gross violation of a human right or fundamental freedom.” Id.

54 Id. at 650.

55 Id. at 660.

56 Triggs, supra note 21.

57 Press Release, supra note 21.

58 Commonwealth v. Tasmania, 57 Austl. L.J.R. 450 (1983), 46 Austl. L.R. 625 (1983). The case has been discussed by the following: M. COPER, supra note 37, at 1-26; Connolly, , The Tasmanian Dam Case: Treaties and the Australian Constitution, Austl. Foreign Aff. Rec, July 1983, at 756-58 Google Scholar; Lane, , The Federal Parliament’s External Affairs Power: The Tasmanian Dam Case, 57 Austl. L.J. 554 (1983)Google Scholar; Howard, , External Affairs Power of the Commonwealth, Current Aff. Bull., September 1983, at 16 Google Scholar; Walker, , A legal wilderness preserved, Law Inst. J., July 1983, at 307 Google Scholar; Crock, supra note 33, at 256-63; Connell, , External affairs power and the domestic implementation of treaties, Austl. Foreign Aff. Rec, September 1983, at 492 Google Scholar.

59 27 UST 37, TIAS No. 8226, 1037 UNTS 151, reprinted in 11 ILM 1358 (1972) (minus Arts. 34-38). Australia ratified the Convention on Aug. 22, 1974; the Convention entered into force on Dec. 17, 1975.

60 The composition of the Court had changed since the decision in Koowarta. Justice Aickin had died and was replaced by Justice Dawson who, as Solicitor-General for the State of Victoria, had argued that state’s case (as intervenor) for the invalidity of the Racial Discrimination Act in Koowarta. Justice Stephen had resigned from the Court and had been replaced by Justice Deane.

61 The effect of paragraph 9(1)(h) of the World Heritage Properties Conservation Act 1983 and the World Heritage (Western Tasmanian Wilderness) Regulations was to make unlawful the carrying out of works involving or associated with the construction of a dam in the area that formed part of the world heritage without the consent of the responsible federal Minister.

62 A majority of the Court also held that the race power supported legislation based on it, although, as formulated, the provisions were invalid. See text accompanying notes 85-90 infra. Certain provisions relying on the federal corporations power (Austl. Const, sec. 51(20)) were upheld, while a majority held that the provisions based on an implied power of nationhood were invalid. See generally M. Coper, supra note 37, at 11-18.

63 57 Austl. LJ.R. at 476 (Gibbs, C.J.).

64 Id. at 517-18 (Wilson, J.).

65 Id. at 476 (Gibbs, C.J.); id. at 518 (Wilson, J.); id. at 567 (Dawson, J.).

66 See, e.g., the remarks of Chief Justice Gibbs:

The protection of the environment and the cultural heritage has been of increasing interest in recent times, but it cannot be said to have become such a burning international issue that a failure by one nation to take protective measures is likely adversely to affect its relations with other nations, unless of course damage or pollution extends beyond the borders. If one nation allows its own natural heritage (and no other) to be damaged, it is not in the least probable that other nations will act similarly in reprisal, or that the peace and security of the world will be disturbed—in this respect, damage to the heritage stands in clear contrast to such practices as racial discrimination. . . .

Id. at 476.

67 Id.

68 When it is said that the subject matter of the Convention is a matter of international concern it may be relevant in judging the strength of that concern to observe that to date seventy-four nations have become parties to it; that is to say, a little less than half the total membership of the United Nations. Furthermore, there are some notable absentees from the list of parties, including the United Kingdom, the Soviet Union, China, Belgium, Holland, Norway, Sweden, Japan, New Zealand, Singapore, Malaysia, Thailand and the Philippines. . . . [T]he extent and intensity of international concern that is reflected in the present Convention is in no way comparable to that which was evidenced by the Convention on the Elimination of Racial Discrimination. . . .

Id. at 516. Compare the remarks of Judge Lachs in his dissenting opinion in the North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 226 (Judgment of Feb. 20):

Delay in the ratification of and accession to multilateral treaties is a well-known phenomenon in contemporary treaty practice. . . . [Experience indicates that in most cases [it is] caused by factors extraneous to the substance and objective of the instrument in question. . .

. . . . [This] indicates that the number of ratifications and accessions cannot, in itself, be considered conclusive with regard to the general acceptance of a given instrument.

69 57 Austl. L.J.R. at 518 (Wilson, J.).

70 Id. at 692 (Mason, J.); id. at 771 (Brennan, J.).

71 These articles of the Convention, supra note 59, read, in pertinent part:

Article 4

Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

Article 5

To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country:

. . .

(d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification . . . of this heritage. . . .

72 57 Austl. LJ.R. at 469 (Gibbs, C.J.); id. at 515 (Wilson, J.): Articles 6(2), 6(3), 16(1) and 27(2) use the word “undertake”; Articles 17, 18 and 29(1) provide that the parties “shall” do certain things. However, the obligations imposed by these articles do not seem significantly less vague or self-defining than the “duty” imposed by Article 4 and the “endeavour” required of a party by Article 5.

73 Id. at 515 (Wilson, J.). Both Chief Justice Gibbs and Justice Wilson also considered that the absence of a complaints procedure similar to that in the Racial Discrimination Convention, supra note 22 (sec Arts. 11-14), indicated the absence of an obligation. Id. at 470, 516. This argument does not take into account the supervisory role of the World Heritage Committee with respect to the World Heritage Convention.

74 Id. at 472-73 (Gibbs, C.J.); id. at 515 (Wilson, J.). See generally Goy, , The International Protection of the Cultural and Natural Heritage, 4 Neth. Y.B. Int’l L. 117, 135-36 (1973)Google Scholar; Meyer, , Travaux Preparatoires for the UNESCO World Heritage Convention, 2 Earth L.J. 45, 49-50 (1976)Google Scholar.

75 57 Austl. LJ.R. at 470-72 (Gibbs, C.J.).

76 As evidenced, inter alia, by references to respect for the sovereignty of parties in Articles 5, 6(1), 11 and 34, as well as references to the protection of property rights. Id. at 470 (Gibbs, C.J.); id. at 514-15 (Wilson, J.); id. at 567 (Dawson, J.).

77 [I]t would be contrary to both the theory and practice of international law to . . . deny the existence of international obligations unless they be defined with the degree of precision necessary to establish a legally enforceable agreement under the common law.” Id. at 546 (Deane, J.). See also id. at 509 (Murphy, J.); id. at 530-31 (Brennan, J.).

78 Id. at 489-90 (Mason, J.); id. at 509 (Murphy, J.); id. at 530-31 (Brennan, J.); id. at 546 (Deane, J.).

79 UNESCO Doc. 17 C/107 (Nov. 15, 1972), reprinted in 11 ILM 1367 (1972).

80 57 Austl. LJ.R. at 490 (Mason, J.); id. at 531 (Brennan, J.). Contra, id. at 473 (Gibbs, C J.); id. at 525 (Wilson, J.); id. at 566 (Dawson, J.).

81 Article 34 of the Convention, supra note 59, reads:

The following provisions shall apply to those States Parties to this Convention which have a federal or non-unitary constitutional system:

(a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal, States;

(b) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of individual constituent States, counties, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, counties, provinces or cantons of the said provisions, with its recommendation for their adoption.

82 Id. at 491 (Mason, J.); id. at 509 (Murphy, J.); id. at 531 (Brennan, J.); id. at 546-47 (Deane, J.).

83 The travaux préparatoires show that Austria had proposed the insertion of the clause. Austria stated that it would be unable to ratify the Convention if no reservations were permitted, owing to its constitutional distribution of powers by which its regions, the Lander, possessed exclusive legislative power over conservation of nature, building and land use planning. UNESCO Doc. SHC/MD/18/Annex I, at 2, and Annex II, para. 7 (1972). The result was the insertion of Article 34. UNESCO Doc. 17 C/18/Annex, para. 56 (1972).

84 57 Austl. L.J.R. at 568-69. Justice Wilson saw the clause as confirming that the Convention sought to achieve its purposes “by a conciliatory and informal engagement of international relationships” falling short of creating any obligations on the federal Government. Id. at 516. Chief Justice Gibbs did not express a definite view on the issue. Id. at 472.

85 See supra note 31.

86 Cf. 56 Austl. L.J.R. at 632 (Gibbs, C.J.); id. at 642 (Stephen, J.). One further concession was made by Justice Stephen, that “facts dehors the legislation” might allow a law that appears to be of general application to be characterized as a special law:

Were it possible to say that in this community only Aborigines faced the possibility of racial discrimination, an anti-discrimination law expressed in general terms might perhaps be seen to be no less a special law within par. (26) than would a law expressly confined to the prohibition of discrimination against Aborigines.

Id. at 643.

87 World Heritage Act, supra note 61, §§8 and 11.

88 57 Austl. L.J.R. at 479 (Gibbs, C.J.). Cf. id. at 571 (Dawson, J.).

89 Id. at 479-80 (Gibbs, C.J.); id. at 520 (Wilson, J.); id. at 571-72 (Dawson, J.).

90 Id. at 500-01 (Mason, J.); id. at 510 (Murphy, J.); id. at 537-40 (Brennan, J.); id. at 550-52 (Deane, J.).

91 Id. at 538 (Brennan, J.). The provisions based on the race power were ultimately held invalid because of Justice Deane’s decision that they violated the implied constitutional prohibition on acquisition of property by the federal Government without just terms (see Austl. Const, sec. 51(31)). 57 Austl. L.J.R. at 555-59. His was the fourth vote against validity when added to those of the Chief Justice and Justices Wilson and Dawson, who had decided the sections were unsupported by the race power.

92 Attorney-General (Canada) v. Attorney-General (Ontario), 1937 A.C. 326, 354.

93 252 U.S. 416 (1920). See Bricker, & Webb, , Treaty Law vs. Domestic Constitutional Law, 29 Notre Dame Law. 529, 534-35, 540-41 (1954)Google Scholar; Sohn, L. & Buergenthal, T., International Protection of Human Rights 948-61 (1973)Google Scholar.

94 Scelle, , Règles générales du droit de la paix, 46 Recueil des Cours 331, 396 (1933 IV)Google Scholar.