'la voix publique'--'and treaties': Australian responses Responses to Treaty Developments in International Law to the First World War

Abstract

This thesis examines, firstly, how international law developed in the period up to the First World War and, secondly, how Australia (both governments and public), through the imperial government (and public), responded to these developments. Within those broad, twin topics, the thesis has focussed on, firstly, the development of international law in terms of treaties, especially multilateral ones, and, secondly, three of arguably eight main subject areas of those treaties, rules for the conduct of war, transnational crime and international labour protection. The remaining five main subject areas of modern treaties, commerce, communications, transport, health (including drug trafficking) and protection of nature--were examined generally, not in detail, due to considerations of scale of research and word length.

The thesis begins by examining broadly, from the mid-19th century, the development of international law through treaties, which were growing in number, content and form, with many being associated with domestic legislation and taking a multilateral form. Britain's decision in 1877-8 to allow its colonies to exercise a choice of adhesion to commercial or non-political treaties greatly expanded the scope for those colonies to take a more active role in international affairs. Having said that, Britain was adamant that even the self-governing colonies did not assume an independent status.

Britain deemed treaties on the conduct of war to be political, so no colonial choice of adhesion was offered and, generally, Britain did not consult colonies prior to concluding them. The Geneva Convention of 1906 and some of the Hague conventions of 1907, however, for the first time for such subjects, required domestic application. Britain decided this would be done through imperial legislation, with which the Commonwealth but not Canada was entirely content. The ultimately unratified Declaration of London of 1909 led to the Commonwealth's first challenge by demanding prior consultation on any treaty, which affected colonial interests.

Britain invited colonial adhesion to the conventions against white slave and obscene publications traffic. The Commonwealth followed Britain's lead and already had some measures in place, which were in accord with these treaties. As powers over crime, manufacturing and sales resided with the states, the other role for the Commonwealth was to encourage them to legislate appropriately. The states had varying legislation, having followed Britain's earlier leads on, respectively, prostitution and pornography. On obscene publications, the Commonwealth acceded in 1912, though it was not certain adequate state legislation was yet in place. The white slave traffic convention proved similarly complicated and the Commonwealth's accession was not finalised until August 1914, just after Britain declared war on Germany, again without all states having legislated for the treaty's requirements.

The conventions on prohibiting women's night work and white phosphorus matches proved even more difficult, as power over industrial conditions rested firmly with the states. The Commonwealth did show some initiative, proclaiming a ban of the import of such matches in late 1908, just before Britain did likewise. Once again the issue of the states' power over sales and manufacturing frustrated early action. The Commonwealth wished to adhere to that convention but the slowness of the states in responding meant that Britain first decided that state legislation was inadequate and, then, in 1915, decided to defer acceding, which the war further delayed. Australia's accession was not finalised until late 1919. Acceding to the night work convention was even more difficult, as the Commonwealth, although keen, was unable to convince all the states to act, resulting in eventual non-adherence.