UA EN

Zvieriev Ie. O.

The scientific-practical Law Journal
Almanac of Law Volume 12 (2021), 287-292 p

DOI: 10.33663/2524-017X-2021-12-48

Zvieriev Ie. O. Teohs case on legitimate expectations in interpretation of international treaties. Lessons for Ukraine

The article provides a detailed overview of a famous Teohs case decided by High Court of Australia in 1995,

focusing mainly on the issue of legal interpretation of legitimate expectations arising from ratified international treaties not implemented into the domestic legal system. The abovementioned case has been considered a novel approach of the court acting in dualist state. This approach was, however not upheld in further jurisprudence of the Australian High Court namely due to quite harsh response of administrative bodies and subsequent legislation which has further been adopted to specifically address this issue by Australian parliament. This does not, however deny the cases significance in terms of scholarly attention to interpretation issues it has raised.

Ukraine can view this case as an example as it does have its own problems with the status and interpretation of international treaties in domestic legal system. Unlike common law countries adhering to dualist approach to international law reception, Ukrainian Constitution recognizes ratified international treaties to be part of domestic legislation automatically, however it is silent on the status of these treaties in Ukrainian domestic legislation which at times causes certain problems with their interpretation and implementation.

The article makes a try to solve the abovementioned issues by referring future interpreters to an alternative approach of international treaties interpretation to Article 8 of the Constitution of Ukraine dealing with the rule of law principle. It is the authors position stipulated in the article that applying Article 8 in terms of the interpretation of international treaties in Ukrainian domestic law enriches the argumentation and shall be viewed as primary source of application to the issue.

Keywords: international treaties, interpretation, legitimate expectations, priority of international treaties, Australia, migration law, childrens rights.

References

1. Minister of State for Immigration & Ethnic Affairs v. Ah Hin Teoh 7 April 1995 // http://www8.austlii.edu.au/cgi-bin/ viewdoc/au/cases/cth/HCA/1995/20.html (Accessed: 29 June 2021).

2. Ah Hin Teoh v. Minister of Immigration, Local Government and Ethnic Affairs 3 September 1993 // http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1993/423.html (Accessed: 29 June 2021).

3. Ah Hin Teoh v. Minister of Immigration and Ethnic Affairs 14 April 1994 // http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1994/1017.html (Accessed: 29 June 2021).

4. Convention on the Rights of the Child 20 November 1989 // https://zakon.rada.gov.ua/laws/show/995_021#Text(Accessed: 29 June 2021).

5. Mark Jennings The Relationship Between Treaties and Domestic Law // Department of Foreign Affairs and Trade of Australia Workshop 6 November 2003 // https://web.archive.org/web/20091003124243/http://www.dfat.gov.au/ treaties/workshops/treaties_global/jennings.html (Accessed: 29 June 2021).

6. Andrew Edgar and Rayner Thwaites Implementing Treaties in Domestic Law: Translation, Enforcement and Administrative Law // Melbourne Journal of International Law, 2, 2018 http://classic.austlii.edu.au/au/journals/MelbJIL/2018/2.html (Accessed: 29 June 2021).

7. Constitution of Ukraine of 28 June 1996 as amended // https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text (Accessed: 29 June 2021).

8. Constitution of the Kingdom of The Netherlands of 24 August 1815 as amended // https://www.government.nl/binaries/government/documents/reports/2019/02/28/the-constitution-of-the-kingdom-of-the-netherlands/WEB_119406_Grondwet_Koninkrijk_ENG.pdf (Accessed: 29 June 2021).

9. Constitution of Ireland of 1 July 1937 as amended // http://www.irishstatutebook.ie/eli/cons/en/html (Accessed:29 June 2021).

10. Law of Ukraine On International Treaties of Ukraine 1906-IV of 29 June 2004 as amended // https://zakon.rada.gov.ua/laws/show/1906-15#Text (Accessed: 29 June 2021).

11. Ragulina K. A. The Impact of International Treaties on National Legislation of Ukraine: Theoretical Aspect // Naukoviy visnyk Mizhnarodnoho humanitarnoho universytetu. Ser. Yurysprudentsiia. 35, 2018. Vol. 1.  P. 32-36.

12. Vienna Convention on the Law of Treaties of 23 May 1969 as amended // https://zakon.rada.gov.ua/laws/show/995_118#Text (Accessed: 29 June 2021).

13. Civil Code of Ukraine of 16 January 2003 as amended // https://zakon.rada.gov.ua/laws/show/435-15#Text (Accessed:29 June 2021).

14. Commercial Code of Ukraine of 16 January 2003 as amended // https://zakon.rada.gov.ua/laws/show/436-15#Text (Accessed: 29 June 2021).

15. Rule of Law Checklist at National Level: Case of Ukraine / Edited by . Koziubra. yiv: 2020. 144 p.

<< Back

  G Analytics