This chapter offers an account of Australia's engagement with the international legal order, through different aspects of the relationship: designing international institutions, litigating in the World Court, and implementing international standards. These are only fragments of the full picture, but they illustrate both Australia's embrace of and distancing from the international legal order. Australia's relationship with the international legal order overall is marked by a deep strand of ambivalence. It has played both the part of a good international citizen as well as that of an international exceptionalist. In some fields, Australia has engaged creatively in international institution-building, even if with a wary eye to protect certain Australian interests. In other areas, particularly human rights, the relationship is distinctly uneasy, with Australia appearing to believe that international standards should regulate others and that it is somehow above scrutiny.
Niraja Gopal Jayal
This chapter examines the question of citizenship in the Indian Constitution. It first considers the debate in the Indian Constituent Assembly over jus soli vs jus sanguinis citizenship, along with the constitutional settlement of citizenship and the key issues that are most contested—and remain central to—citizenship jurisprudence. It then turns to a discussion of four terms whose interpretation has been central to the case law on citizenship: domicile, intention, migrant, and passport. It also analyses the main provisions of the Citizenship Act 1955 and the amendments to this piece of legislation from the mid-1980s to the present. The rest of the chapter explores the gradual shift from a jus soli conception of citizenship to one based on the principle of jus sanguinis, as well as the patterns of change and continuity in the constitutional and post-constitutional law of citizenship in India.
Erika De Wet
This article discusses the constitutionalization of international law, which can be summarized as an attempt to exercise legal control over politics within the international legal order itself, in order to compensate for the erosion of such control within domestic constitutional orders. In doing so, it attempts to translate to the international plane concepts that were traditionally reserved for domestic constitutions. Critics regard attempts to use concepts of domestic constitutionalism as a mechanism for controlling the international exercise of public power as over-ambitious. This argument is also fuelled by the lack of conceptual clarity in the debate pertaining to international constitutionalism and the controversies pertaining to the legitimacy of the value-laden hierarchy of norms in international law.
This chapter discusses fragmentation and constitutionalization—which are understood to be two trends in the evolution of international law. ‘Fragmentation’ has a negative connotation, and is used as a pejorative term (rather than diversity, specialization, or pluralism). ‘Constitutionalization’, in contrast, feeds on the positive ring of the concept of constitution. Both constitutionalization and fragmentation are terms that describe not only legal processes in the real world of law but are also labels for the accompanying discourses (mostly among academics, less so among judges, and even less so among political law-making actors). The putative trends so far do not have a clearly definable end-result, such as a completely fragmented international legal order on the one hand, or a world constitution on the other.
Benedict Kingsbury, Megan Donaldson, and Rodrigo Vallejo
This chapter attempts to bring ‘global administrative law’ (GAL) and democracy into conversation. It addresses two separate observations: first, that democracy currently lacks the tools to respond to the globalization and diffusion of political authority; and secondly, that GAL is not presently democratic—it has no room for democratic concerns in its emerging norms. As such, the chapter aims to give an overview of GAL and some of its contributions to international legal theory; explore the way in which GAL’s focus on innumerable capillary-level sites of power may open promising terrain for the instantiation of democracy beyond the state; consider how work on GAL can be enhanced by engaging with, and drawing ideas from, work on deliberative democracy; and note the rising impact and future potential of democratic striving in the practice of institutional entrepreneurship and GAL lawyering.
This article argues for the analysis of global and transnational environmental governance as administration to shed light on some important but neglected themes in international environmental law scholarship. First, it outlines several basic administrative concepts that call for analysis under such an approach (delegation, accountability, deliberation and reason giving, dynamic effects, general versus specific norms), then sets forth an analytical framework of five structures of administration in global governance, namely: distributed administration, international administration, inter-governmental network administration, hybrid administration, and private administration. Normative appraisal in administrative law is often conducted by reference to basic public law values, such as legality, proportionality, rationality, accuracy, effectiveness, efficiency, and respect for basic rights. Political theory inquiries into democracy and legitimacy in global governance may be given more applied purchase by distilling normative values and implicit trade offs, embodied in such legal-administrative components as transparency, notification, participation, reason giving, and review. Inflections in the design and operation of different administrative systems may have impacts on distributive outcomes, procedural fairness, and other elements of justice.
This chapter focuses on international administrative tribunals, which are part of the internal systems of administration of justice put into place by international organizations (IOs) to settle employment disputes. Without them, staff members would have no other recourse. IOs are generally granted immunity from municipal jurisdiction, thus their employees are, in principle, unable to turn to national tribunals. The chapter begins by tracing the evolution of internal justice systems in IOs. It then discusses the institutional components of administrative tribunals. These components vary, depending on the needs of each organization and the choices made at the time of their creation. They have, however, a number of common features.
This chapter focuses on issues associated with international treaty obligations within the Australian constitutional context. It first examines the established principle of the common law of England that the provisions of a treaty do not form part of domestic law unless incorporated into domestic law by statute, before discussing the drafting history of the Constitution as well as the ramifications of that history. The chapter then turns to the power of the Commonwealth Parliament to enact legislation to implement Australia's treaty obligations. It also briefly addresses the relevance of international law to the interpretation of the Constitution itself. Finally, this chapter examines the role that international law plays in the interpretation of legislation that wholly or partly incorporates international obligations into domestic law, and the effect of such obligations on administrative action taken pursuant to such statutes.
Wen-Chen Chang and Jiunn‐Rong Yeh
This article focuses on the internationalization of constitutional law. It discusses major trends in the internationalization of constitutional law, including the incorporation of international human rights treaties into constitutions, convergence, and comparativism of national constitutions, and constitutional devolution or treaty-becoming constitutions. Next it makes inquiries into the driving forces that push the development of constitutions across and beyond their borders. It argues that the current internationalization of constitutional law results primarily from the expansion of a global market, the triumph of rights-based discourse, and, most importantly, the emergence of transnational networks by governments, non-governmental organizations, and technocrats or professionals.
Sources of International Law in Domestic Law: Domestic Constitutional Structure and the Sources of International Law
Ingrid B. Wuerth
This chapter takes a new approach to the much-analysed relationship between domestic and international law. It considers how global changes in domestic constitutional structures have changed the sources of international law. It argues that domestic constitutional structures have changed in similar ways in many countries around the world over the past century. Treaties, custom, and ‘soft law’ as sources of international law have each been shaped by these changes, particularly the rise in legislative power for treaties, the rise in legislative and judicial power for custom and general principles, and the rise of the administrative state for soft law. This chapter also considers how the content of each source of international law is influenced by domestic constitutional structures. It concludes with some normative perspectives on the relationship between each source of international law and changes in domestic constitutional structures.
Sources of International Law in Domestic Law: Relationship Between International and Municipal Law Sources
This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.
Vicki C. Jackson
This chapter examines controversies surrounding the U.S. Constitution’s relationship to international law, with particular emphasis on the separation of powers, federalism, the supremacy clause, and individual rights. Before discussing tensions between “original” understandings of international law and the U.S. Constitution, the chapter provides an overview of the founding of the Constitution and its focus on international affairs and foreign relations. It then considers what the Constitution says about treaty law and other international agreements, along with U.S. law’s jurisdiction and supremacy over customary international law. Finally, it explores how international law is interpreted by U.S. law, and how the overlap between international law and constitutional law has increased.