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Kirby, Michael --- "International Law at the Grass Roots: Some Recent Developments" [2005] AUYrBkIntLaw 8; (2005) 24 Australian Year Book of International Law 107

International Law at the Grass Roots:
Some Recent Developments

Michael Kirby[∗]

Feelings of Discouragement

These are sombre times for international law. In a speech to the Centre for International and Public Law at the Australian National University in January 2004, Ambassador John Dauth, Australian Permanent Representative to the United Nations (UN) in New York, opened his remarks gloomily:

To say 2003 was a bad year for the United Nations is undoubtedly a significant understatement. We in the international community who still broadly support the UN, are a long way from the euphoria of late 2001, when, in the immediate aftermath of the appalling terrorist attacks … the Security Council reacted decisively with Resolutions 1368 and 1373, established the Counter Terrorism Committee and, with the undivided support of the Council, authorized the removal of the Taliban in Afghanistan. The emblem of those measures of activity was the Nobel Peace Prize, shared between the Organisation and the Secretary-General, Kofi Annan. 2003, by comparison, has been wracked by the divisions over Iraq… This sad period in the Council’s history was a major contributor in 2003 to the dented image of the Organization as a whole.[1]

To similar effect was a speech given in February 2004 at Indiana University in the United States of America by Professor Ivan Shearer, whose outstanding scholarship, teaching and other work for international law are celebrated in this volume. Speaking to a mainly American audience, Professor Shearer described the growing mood of unilateralism that had caused some jurists to picture the present age as ‘the end of a great experiment’ in collective security established by the UN Charter.[2] In his lecture, which was titled ‘In Fear of International Law’,[3] Ivan Shearer was blunt about it:

It has been evident that at many points international law has been ignored or pushed to the sidelines by the governments of the United States and – to a lesser extent – of Australia. … [T]his is not only wrong, but unnecessary, since the objectives we strive to attain may be made compatible with international law. Our security is made stronger if we can bring the rest of the international community with us, and show that we are prepared to live by the same rules as all … [I]nternational law is a necessary curb and restraint on the exercise of power and [it] … should be recognised more widely as such, not only at the executive level but also at the judicial and legislative level.[4]

Taking up a similar theme, but with reference to developments wholly within the Australian governmental system, Professor Hilary Charlesworth and her colleagues, in an article in the Sydney Law Review,[5] describe what they call ‘Deep anxieties: Australia and the international legal order’. They note the increasing internationalisation of many aspects of Australian life. But they observe that ‘international law has become a charged and politicised field in Australia [often portrayed] as an intrusion from “outside” into our self-contained and carefully bounded legal system’.[6]

The authors of this article attribute the perception of international law ‘as a source of un-Australian, fanciful and chaotic norms’ as connected to the ‘politics of Australian fundamentalism – the “shrinking society” described by Ghassan Hage’.[7] According to this description, Australia is ‘a worrying, defensive society – in which anxieties about our own individual positions are projected into the nation. Nationalism has thus become characterised by a focus on the politics of preserving our borders from outsiders.’[8] As Hage puts it, ‘[t]he defensive society … suffers from a scarcity of hope and creates citizens who see threats everywhere. It generates worrying citizens and a paranoid nationalism.’[9] International law is rejected as having no relevance to domestic law precisely because it represents the voice of outsiders. It seems to be the danger of people who live on islands – even islands as big as Australia – that they feel the need, from time to time, to pull up the drawbridge. For such people, international law, like the foreigners of old, begins at Calais: or in our case in Dili or Bali.

The contemporary feeling of discouragement over international law is traced in Professor Charlesworth’s paper by reference to the debates leading to Australia’s ratification of the statute of the International Criminal Court (strongly supported by the Foreign Minister and the then federal Attorney-General but attacked by others).[10] It is followed through the responses of the Australian government to decisions of the UN Human Rights Committee[11] (upon which Professor Shearer serves and to which he has happily been re-elected) through the responses of successive governments, Labor and Coalition, to the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh.[12] And into the utilisation of international law in the decisions of our national courts.[13]

The highly critical view about what is left of the principle adopted in Teoh, as stated by the High Court of Australia in its new composition in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam,[14] is portrayed as a far cry from the halcyon days of Justice Brennan’s embrace in Mabo v Queensland [No 2][15] of the international law of human rights as a legitimate influence on the development of the common law of Australia. The importance of that approach was that it provided a key that unlocked the door to examination of past common law authority in Australia. It was the international law against racial discrimination that encouraged the High Court of Australia in Mabo to over-rule the former doctrines on the extinguishment of Indigenous title to land in Australia. Yet, for the critics, that is precisely what was wrong with such an invocation of international law.[16]

A later, similar talk by Professor Charlesworth at the centenary conference of the High Court of Australia in October 2003,[17] attracted the usual rantings of media polemicists, with their infantile views of a modern democracy and its judicial process.

But do all these developments combine to suggest an international and national period of setback for international law? In particular, do they indicate a retreat from multilateral solutions to world problems and from the advance of global human rights in the place of the brute power, cruelty and oppression of the past?

Human Rights Machinery

The UN agencies

Whilst disappointing and worrying developments have occurred in the political organs of the UN, important advances continue to be made in the agencies of the Organisation. It is here that I have seen, and participated in, practical activities that promote the aspirations of universal human rights and shore up their defences. This happens within mechanisms established to advance and protect universal human rights in accordance with the norms of international law.[18] In the three years before my appointment to the High Court of Australia, it was here that I came face to face with the UN human rights system at work.

Special Representative to Cambodia

Between 1993 and 1996 I served as Special Representative of the Secretary-General for Human Rights in Cambodia. I found myself one of nearly 30 such Special Rapporteurs and Special Representatives. We reported to the Secretary-General, the Commission on Human Rights and the Sixth Committee of the General Assembly. My office derived from a provision in the 1991 Paris Peace Agreements by which the UN brought peace to Cambodia after decades of war, revolution, genocide, invasion and resistance.[19] My mission was to encourage Cambodian adherence to UN human rights treaties; to advise on the conformity of Cambodian law and practices with the obligations of those treaties; and to promote discussion and awareness of the international law of human rights amongst politicians, officials, the media, civil society organisations and the public generally. I also had to report to the UN twice a year on compliance, and non-compliance.

In Cambodia, I had no blue helmets at my disposal to sanction non-compliance. All but two of the military force of the UN Transitional Authority for Cambodia had withdrawn by the time of my arrival in Phnom Penh. There were, of course, failures. But there were also many successes.[20] The Office of Human Rights in Cambodia provided substantial technical assistance to the government, to non-government organisations and to the people of Cambodia; and it still does. When things became particularly difficult, I requested the Under-Secretary-General of the UN (Mr (now Sir) Marrack Goulding) to visit Cambodia to add to my persuasions. Later still, the first High Commissioner for Human Rights (Mr Jose Ayala Lasso) joined me in a mission and brought his influence to bear. The sanction of reports to the Commission can be significant. Cambodia made progress during my time. Not without ongoing problems and occasional setbacks, my successors as Special Representative, Thomas Hammarberg and Peter Leuprecht, have continued this important work of translating the grand language of human treaties into practical reality. The Human Rights Office in Cambodia, now headed by Margo Picken, a past Director of Interights, works creatively and energetically to fulfil the noble goals of the UN.

As I sat in the Commission on Human Rights in 1996, awaiting the moment of my last report, I saw the Special Rapporteur on the Sudan bring to account, in a way impossible at home, the oppressive government of that country. Here, truly, I witnessed the building blocks of a world order that will ultimately render all tyrants accountable to humanity. There are many elements to the building of the New World Order. We should remember them when we feel discouraged.

Amidst the failures of the UN political arms, we need to remind ourselves of the important, and often unsung work of countless officials of the UN and its agencies: helping to solve particular disputes; helping to identify common problems and the ways to address them. When I think of this, I remember the outstanding officers of the UN in Cambodia. Daniel Prémont, quietly working with the Cambodian government and its officials to build judicial independence, to abolish military and civil service immunity from courts, to defend the political opposition and to promote freedom of expression. Christoph Péschoux, who went into dangerous areas to respond to complaints about interference with the rights of ethnic minorities and who helped to organised land-mine clearance and investigation of individual complaints. He was in Baghdad in 2003 when the third High Commissioner for Human Rights, Sergio Vieira de Mello, and other brave workers for international law were killed in the service of the world community. Francesca Marotta, who helped in the promotion of women’s rights and who joined me to put HIV/AIDS on the agenda of the Cambodian government, with valuable consequences a decade later in the steady fall in infection rates. Heng Ham Kheng who, with other Cambodian officers helped in the endeavour to overcome centuries of hostility to the Vietnamese minority to support the work of the UN to make human rights a reality in a country where at least a tenth of the population had died in genocide. This was not theory. This was highly practical work.

So this is international law in action at the grass roots. It is not perfect. Yet without it, the world and its people, especially the disadvantaged, would be much worse off. I have seen this aspect of international law and universal human rights with my own eyes. I feel an obligation to tell of it. And to give witness to what is going on in many dangerous corners of the globe.

In my time, I have also seen international law at work in the field through the eyes of the International Labour Organisation,[21] through the UN Development Programme,[22] the World Health Organization (WHO),[23] the UN Educational, Scientific and Cultural Organization (UNESCO),[24] the Organisation for Economic Cooperation and Development (OECD)[25] and the Commonwealth Secretariat.[26] Whenever I get discouraged about the role of international law, and international agencies, I think of the highly practical work done through these and like bodies: international, intergovernmental and non-governmental.

UNESCO and bioethics

Recently I have been serving on two international bodies where I have witnessed attention to topical issues of the world we live in. The International Bioethics (IBC) of UNESCO has begun the essential response of humanity to the challenges presented to the human species by the developments of the Human Genome Project and the amazing symbiosis there between information technology and the new biology.

Under delegation from the General Conference of UNESCO, the IBC is preparing a new international declaration on universal norms on bioethics to guide an international response to a large range of bioethical concerns extending beyond its earlier Universal Declaration on the Human Genome and Human Rights.[27] I am chairing the group that is preparing the new Declaration. The proposed bioethics declaration will not be just another UN document. One of its concerns inevitably relates to the operation of the World Trade Organization’s TRIPS Agreement,[28] with its consequences for domestic law on intellectual property protection in respect of genomic discoveries.[29] Ensuring that these discoveries are fairly available to all humanity and that genomic progress responds to the needs of the developing world is truly a major issue of justice for international law. It is a potential source of future conflict unless we can nip that conflict in the bud.[30]

UNAIDS panel on human rights

The other body on which I serve is a panel established by UNAIDS. The panel has been created to advise that inter-agency organisation on the human rights issues of the epidemic. At present, UNAIDS is in the midst of considering an urgent new strategy to tackle the spread of HIV in developing countries, noted by Ambassador Dauth as one of the failures of the UN in recent years.[31]

In 2003, Dr Lee Jon-Wook, the new Director-General of WHO, together with UNAIDS, initiated the so-called ‘3x5 Initiative’. With new and beneficial antiretroviral drugs (ARVs) now to be available at low cost in the developing world, WHO envisages the rapid provision of HIV medication to three million recipients by 2005. If you have ever seen the life-transforming impact of ARVs on people with an advanced condition of HIV or AIDS, you know how critical it is to bring the right of access to health to millions of people in poorer countries.

This can only be done by stepping up HIV testing. The UNAIDS panel is advising on ways that testing can be introduced safely according to a formula that ensures the utility of testing (by the access to ARVs) and effective protection from stigma and discrimination. In both of these components of the global strategy, most of the countries of the developing world are in need of help. This is not theory. This is the practical provision of the means to ensure the most basic of human rights: the right to life and to essential healthcare.

The AIDS pandemic is an area where municipal law can play a supportive role, as we have found in Australia. In mid-February 2004, on the visit to Australia by Dr Richard Feachem, Executive Director of the Global Fund on HIV, Malaria and Tuberculosis, the Australian government announced a $US10 million commitment to the Fund over three years. In the struggle against HIV in our region and the world, as well as at home, Australians, their government and its agencies (especially AusAID) have played an admirable role. International law, and the principles of universal human rights, help to sustain that role. The UNAIDS panel works closely with the Office of the High Commissioner for Human Rights. International human rights law underpins the strategy of UNAIDS and of WHO in this struggle. The efforts rarely attract media headlines. Those who thrive in disaster and conflict are not interested. But it represents an instance of international law and human rights at work, trying to solve problems, to save lives and to protect human dignity.

In the Courts

Australian courts and international law

When we turn from the international agencies to the courts, the position is by no means bleak. Every September at the Yale Law School, I participate in a global conference on constitutionalism. Another participant is Judge Luzius Wildhaber, President of the European Court of Human Rights. His court now exercises jurisdiction from Ireland in the west to the Pacific coast of the Russian Federation in the east. The jurisprudence of the European Court is increasingly felt in the United Kingdom, the original source of Australia’s legal system. It offers principled decisions that are increasingly invoked in academic and judicial writings in Australia.

As Professor Charlesworth and her colleagues point out, by reference to decisions of the High Court of Australia dating back to Chow Hung Ching v R,[32] Dietrich v R,[33] Mabo [No 2] [34] and Teoh,[35] there is nothing heretical in the acknowledgment by our courts of the existence and relevance of international law. So far as international law is not inconsistent with the Constitution, rules enacted by statutes or finally declared by courts of high authority, judges have long utilised universally recognised principles of international law to inform themselves in the performance of their own national duties.[36]

This is what the Bangalore Principles on the Domestic Application of International Human Rights Norms propose.[37] They too are not heretical, even if some Australian judges continue to think them so.[38] Nor is it inappropriate, or even particularly novel, for our courts to construe legislation, so far as they properly can, in favour of a meaning that conforms to international law rather than one that does not.[39]

In the important 2002 decision of the High Court of Australia, Plaintiff S 157/2002 v The Commonwealth,[40] which reasserted the operation of the constitutional writs in the face of ‘privative clause’ provisions in the Migration Act 1958 (Cth) addressed to refugee decisions, Chief Justice Gleeson described a principle long established by Australian law:[41]

[W]here legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity, a court should favour a construction which accords with Australia‘s obligations.[42]

There are many decisions that state a wider principle. Courts do not impute to the legislature an intention to abrogate, or curtail, fundamental rights or freedoms unless the intention is clearly manifested by unmistakable and unambiguous language.[43] Nowadays, this rule may be illuminated by the experience of international law. The rule has been applied in many recent court decisions in Australia. [44] Inevitably, it is defensive of the rules of international law expressing universal human rights. The rules of international law often coincide with the rules of the common law of Australia, even where international law has not been expressly incorporated.

The real controversy in Australia, as Professor Charlesworth and her colleagues correctly note, has concerned the extent to which, in constitutional interpretation, our courts may have regard to international law, specifically the international law of human rights, in resolving ambiguities in our constitutional text.[45] In a number of decisions in the High Court of Australia, I have suggested that they may.[46] Contrary views have been voiced by other members of the High Court of Australia.[47] However, in Canada,[48] South Africa [49] and other countries of our legal tradition, it is common for international law, particularly the international law of human rights, to be invoked to assist in the task of constitutional interpretation. That great Canadian judge, Chief Justice Dickson, put it this way:

The content of Canada‘s international human rights obligations is, in my view, an important indicia of the meaning of the “full benefit of the Charter’s protection”. I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.[50]

Increasingly, in most final courts of the world, it has been considered appropriate to extend the dialogue between international law and constitutional law, recognising the fact that, in the present century, the two must necessarily operate together. Against this global movement, two great courts have, until now, stood out. The High Court of Australia and the Supreme Court of the United States. In 2004 the Supreme Court of the United States appears to have joined the courts of the rest of humanity. The position in Australia is less certain.

United States developments

An early indication of the new approach of the Supreme Court of the United States may be seen in Justice Stephen Breyer’s dissenting opinion in Printz v The United States.[51] He said:

Of course, we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural differences between their systems and our own. But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem [for example, in this case] the problem of reconciling central authority with the need to preserve the liberty-enhancing autonomy of a smaller constituent governmental entity.

Even amongst those Justices of the Supreme Court of the United States considered generally unfavourable to this attention to international norms, there has been progress. Thus Chief Justice Rehnquist, in extra-judicial writing a few years before Printz, noted that, for more than a century, the Supreme Court of the United States had not looked beyond United States decisions because it was unconvinced that precedents elsewhere would be of much help. Chief Justice Rehnquist then acknowledged:

But now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process.[52]

Variations upon this theme may be noted over the past decade, particularly in speeches and extra-judicial statements of Justices O’Connor, Kennedy, Ginsburg and Breyer.

Then came the 2002 Term of the Supreme Court. History may record it as an important turning point in that country’s constitutional doctrine. The issue of the domestic application of international human rights law was presented squarely in Atkins v Virginia.[53] That was a case involving the question of whether it was contrary to the provisions of the Eighth Amendment of the United States Constitution (forbidding cruel and unusual punishments) to execute a convicted prisoner with established mental retardation. In a prolonged footnote to the opinion of the Court, Justice Stevens referred to the amici curiae briefs, including those demonstrating that ‘within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved’.[54]

The reference to international experience and law elicited a dissent from Chief Justice Rehnquist, urging that the Court limit ‘our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America’.[55] More vigorously, Justice Scalia rejected the majority invocation of the views of the ‘world community’ and their reference to the brief of the European Union, stating that it deserved ‘the Prize for the Court’s Most Feeble Effort to fabricate national consensus’.[56] He declared the opinions of the ‘world community’ to be irrelevant because their ‘notions of justice are (thankfully) not always those of our people’.[57]

Far from deflecting the new majority in Atkins, the members pursued their endeavours and even gathered new adherents. In the 2003 Term, Justice Ruth Bader Ginsburg, who had been with me in India when the Bangalore Principles of 1988 were adopted,[58] asked a pertinent question during oral argument. She did so in an affirmative-action case concerned with constitutional law. She said:[59]

[W]e’re part of a world, and this problem is a global problem. Other countries operating under the same equality norm have confronted it. Our neighbor to the north, Canada, has, the European Union, South Africa, and they have all approved this kind of, they call it positive discrimination … [T]hey have rejected what you recited as the ills that follow from this. Should we shut that from our view at all or should we consider what judges in other places have said on this subject?

In her concurring opinion in the case, Grutter v Bollinger,[60] Justice Ginsburg answered her own question in the affirmative. Joined by Justice Breyer, she said that:

The Court’s observation that race-conscious programs “must have a logical end point” accords with the international understanding of … affirmative action.

She cited the text and annex of the International Convention on the Elimination of All Forms of Racial Discrimination,[61] which was ratified by the United States in 1994.[62]

Three days after Grutter, with a still larger majority, in Lawrence v Texas,[63] the Supreme Court of the United States invalidated a state law providing for criminal punishment for consensual adult homosexual conduct in private. Not only did the Supreme Court overrule its 1986 decision in Bowers v Hardwick, which had upheld the validity of such laws.[64] It stated that Bowers had been wrong when decided.[65] Most importantly, in the text of the opinion of Justice Kennedy (for the Court), not in a footnote this time, the Supreme Court majority cited the decisions of the European Court of Human Rights in Dudgeon v The United Kingdom,[66] which had been decided five years before Bowers but was not mentioned in argument or in the decision of the earlier Supreme Court case. Justice Kennedy wrote:

To the extent Bowers relied on values we share with a wider civilisation, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v The United Kingdom…, Modinos v Cyprus … [and] Norris v Ireland. … Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct … The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.[67]

Justice Kennedy went on to refer to the amicus brief filed in Lawrence by Professor Mary Robinson, then the UN High Commissioner for Human Rights. It was on those pages that the brief described the decision of the UN Human Rights Committee in Toonen v Australia.[68] Moreover, it explained how the Australian federal Parliament had enacted a law to implement the Committee’s interpretation of the International Covenant on Civil and Political Rights (ICCPR).[69]

Professor Harold Hongju Koh, now Dean of the Yale Law School, has described constitutional doctrine in the United States as it stands at this time. His description is also relevant to Australia, the only difference being the currently dominant opinion:[70]

[T]he last Supreme Court Term confirms that two distinct approaches now uncomfortably coexist within our Supreme Court’s global jurisprudence.[71] The first is a ‘nationalist jurisprudence’, exemplified by the opinions of Justices Scalia and Clarence Thomas.[72] That jurisprudence is characterised by commitments to territoriality, extreme deference to national executive power and political institutions, and resistance to comity or international law as meaningful constraints on national prerogatives. This line of cases largely refuses to look beyond US national interests when assessing the legality of extra-territorial action. … [It] dismiss[es] treaty or customary international law rules as meaningful constraints upon US actions. … When advised of foreign legal precedents, these decisions have treated them as irrelevant, or worse yet, an impermissible imposition on the exercise of American sovereignty.[73]

A second, more venerable strand of ‘transnationalist jurisprudence’, now being carried forward by Justices Breyer and Ginsburg[74] began with Justice … Jay and Justice … Marshall, ‘who were familiar’ with the law of nations and ‘comfortable navigating by it’.[75]

In later years, this school was carried forward by Justice Gray [and others] … [T]hese Justices [do not] distinguish sharply between the relevance of foreign and international law, recognising that one prominent feature of a globalising world is the emergence of transnational law, particularly in the area of human rights, which merges the national and the international.[76]

As a judge of a final court, I watch this American judicial contest with close attention.[77] As an adherent to transnationalist jurisprudence, I take heart from what is happening, virtually everywhere and now in the highest court of the United States. I believe it to be natural and inevitable. It is encouraged by elements of politics, economics, and technology: in one sense the evolution of our species. Without effective international law and its institutions the species is in serious danger.

As an Australian lawyer, I know that transnational jurisprudence has a venerable strand in Australia.[78] As a member of a minority (and which of us is not?), and because of my own sexuality, I was particularly interested in the battleground in which the issue came to the fore in the United States in Lawrence just as it did, earlier, in the Toonen Case before the UN Human Rights Committee. In both venues one can see the backward-looking and the forward-looking. In both, one can see the difference between those who reason against discrimination towards homosexuals in terms of privacy norms (as Justice Kennedy did) and those who reason in terms of fundamental notions of equality (as Justice O’Connor did).[79] In Australia, these issues remain to be resolved.[80] Justice Kennedy’s conclusion in Lawrence should be repeated:[81]

Had those who drew and ratified [the Constitution] known the components of liberty in its manifold possibility, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Recent Australian


Recent decisions of the High Court of Australia suggest that the Australian Court is now engaging more closely with consideration of the effect that the principles of international law have upon statutory and constitutional elaboration and common law doctrine. In part, this change has come about in response to my own insistent references to international law in expressing my opinions about these subjects. It is healthy, and desirable, that the members of the High Court should be expressing their views on this subject. It is out of such dialogue that new legal principles arise and shifts occur in settled approaches.

In one recent case, Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs,[82] the issue concerned the interpretation of the Migration Act. That Act creates a system of mandatory immigration detention for persons arriving in Australia without requisite authority. Commonly, such persons make application for protection visas, claiming to be refugees. In Behrooz, persons held in detention at the Woomera Immigration Reception and Processing Centre in South Australia took advantage of circumstances to remove themselves from the Centre. When recaptured, they were charged with escaping from an immigration centre contrary to section 197A of the Migration Act, a criminal offence. The detainees sought to tender evidence to establish the proposition that the circumstances in the Centre were so inhuman as to amount to punishment unavailable to the executive government or Parliament without judicial order. They also claimed that the conditions were such that the place in which they were held was not an immigration detention facility as contemplated by the Act. Therefore, they argued, they were not in breach of the Act by leaving such a place. They thus invoked constitutional principles and a particular construction of the Act.

The majority of the High Court of Australia rejected their submissions as not legally arguable. In this respect, the majority upheld the opinion of the judges of the Supreme Court of South Australia over-ruling the primary magistrate. I dissented, being of the view that termination of the defence, before evidence as to the actual conditions in the Woomera Centre was adduced, was contrary to the applicable legal principles.

In my reasons, I suggested that the Migration Act ‘as far as the language … permits’[83] should be construed to uphold applicable international law. In this respect, I referred to the ICCPR, article 10(1). That article requires that persons deprived of their liberty must ‘be treated with humanity and with respect for the inherent dignity of the human person’. By article 7 of the ICCPR, it is provided that: ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. These and other provisions of international human rights law, binding on Australia, persuaded me that a construction of the Migration Act was arguable, which did not extend references to ‘immigration detention’ in the Act to apply to a place that could be shown by evidence to involve inhumanity, departures from human dignity or cruel, inhuman or degrading treatment or punishment. The accused should therefore have the chance, on evidence, to establish that this was the case.[84] The other members of the High Court were not persuaded. They treated the matter as one that called solely for a process of construction of the Australian statute in terms of Australian norms and principles.

In Al-Kateb v Godwin,[85] there was a significant engagement by Justice McHugh with my invocation of international law. The case concerned a Palestinian who was originally an applicant for a protection visa as a ‘refugee’ and who, it was conceded, was a ‘stateless person’. The issue arose as to whether it was lawful to detain such a person indefinitely in immigration detention when he had asked to be removed from Australia and when repeated attempts by Australia to find another state prepared to receive him had failed.

At one level, the issue in Al-Kateb was whether, where the hypothesis of the possibility of removal from Australia was denied by the evidence, the provisions for mandatory detention in the Migration Act continued to operate. Upon this issue the Court divided. Three Justices (Chief Justice Gleeson, Justice Gummow and I) held that continued detention in such circumstances was not sustained by the Act, read in the context of the Australian Constitution. However, a majority of the Court (Justices McHugh, Hayne, Callinan and Heydon) concluded otherwise.

In my reasons, I referred to the need to construe the Migration Act in accordance with the Constitution as its provisions were to be understood in the context of the international law of human rights.[86] In expressing this view, I invoked the recent developments in the Supreme Court of the United States.[87] Justice McHugh, in an extended passage, criticised the notion that international law had anything at all to say about the meaning of the Australian Constitution. In support of his opinion, he invoked earlier decisions of the Australian court,[88] approved by Justices Gummow and Hayne in Kartinyeri v The Commonwealth decided in 1998.[89]

This is not an occasion to revisit the debates between Justice McHugh and myself or to add to what was said in the reasons in Al-Kateb. But it is proper to call the exchange to notice. It touches upon one of the most lively questions facing all final courts of nation states, from which Australia is not exempt.[90] In response to Justice McHugh’s invocation of the earlier decisions of the High Court, particularly in Polites v The Commonwealth,[91] decided in 1945, I said:

In 1945, when Polites was decided, the Australian Constitution was commonly regarded as little more than a statute of the United Kingdom Parliament, binding in Australia for that reason. In most cases – including many constitutional cases – the decisions of this Court were subject to appeal to the Privy Council. … In 1945, the international community was quite different. … The global economy was primitive when compared with today. Integrating technology was quite limited. The United Nations had not yet been formed when the decision in Polites was handed down in April 1945. The institutions of the world community had not yet been created. The legal instruments that have declared the human rights and fundamental freedoms of humanity had not yet been adopted. In these circumstances, to have expected even so great a judge as Dixon J to foresee the legal expression of human rights and fundamental freedoms, founded in the notions of human dignity and the principle of justice recognised in the Charter of the United Nations [92]
and to appreciate their impact on our Constitution, is to expect too much. He, and our other predecessors, are excused for not foreseeing these developments. Contemporary judges are not excused for ignoring them.[93]

Even more recently in Coleman v Power[94] another engagement occurred concerning the role of international law in elucidating the construction of an Australian (state) statute. The issue in that case was whether it was appropriate to construe the language of a Queensland Act, enacted in 1931, so that it should conform to the principles of international law affirming rights generally to free expression in matters of politics and government. I expressed the view that this was permissible in order to uphold the value of free communication on such matters implicit in the representative democracy established by the Australian Constitution.[95] I referred specifically to article 19 of the ICCPR to which Australia is a party and in respect of which it has also subscribed to the First Optional Protocol giving access, in case of alleged derogation, to the Human Rights Committee.

In his reasons, Chief Justice Gleeson rejected this interpretative tool. He invoked decisions both in England [96] and Australia[97] suggesting that international law could only be used for such purposes where the legislation in question was enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. Chief Justice Gleeson suggested that it was ‘difficult to reconcile’ the invocation of such international law to ‘control or influence the meaning of an Act of the Queensland Parliament of 1931’ by reference to an international treaty that did not enter into force until six decades later.[98]

In my reasons in Coleman I sought to answer this suggestion. I did so by reference to the declining acceptance of the principle that statutes of continuing operation should be construed in the light of the purposes of those who, long before, made them.[99] I invoked Lord Justice Scarman’s words, in construing a 1944 statute, which was before the English courts in 1978:

Today, therefore, we have to construe and apply [the Act of 1944] not against the background of the law and society of 1944 but in … a society which has accepted international obligations.[100]

I went on:

The use of the interpretative principle that I have explained will become more common in the future than it has been in the past. The search for contemporary legal obligations expressed in presently binding statute law, by primary reference to the history of nineteenth century predecessors … will increasingly be viewed as unhelpful. Reading contemporary law by reference to presumed compliance with the principles of human rights and fundamental freedoms, stated in international law binding upon Australia, will be viewed as orthodox. In statutory construction, as in much else in the law, orthodoxies are constantly being altered. This Court must keep pace with such changes in doctrine, not rest on its legal laurels …[101]

It should not be thought that these decisions of mine indicate that international law is always relevant to constitutional or statutory exposition or that it is always helpful, once its terms are discovered and applied. Sometimes, for example, municipal law, binding on national courts and judges, is completely clear. So long as it is constitutionally valid, that law must be upheld by national courts. International law cannot be invoked to over-ride such domestic law.

That fact was well illustrated in the decision of the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v B.[102] That was a case that concerned the mandatory detention of children in immigration detention facilities. In my reasons, I concluded that, arguably, the detention of the children proved in that case amounted to a breach of Australia’s obligations under international human rights law. It had been so concluded by international treaty bodies.[103] However, in their terms, the provisions of the Migration Act in question were undiscriminating as to the age of those committed to immigration detention. There were no exceptions for children. On the contrary, the position of children under international law had thrice been the subject of parliamentary and official Australian inquiries. No moves had been made in the Australian Parliament to limit the application of mandatory detention in the case of children. Far from this, it is clear that the Parliament intended the law to apply to children. The law was constitutionally valid so far as Australia was concerned. It had therefore to be upheld by the courts.

Likewise, on some occasions, when international law is examined it provides no support for a suggestion that the local Constitution or statutes should be ‘read down’, so as to diminish a burden on the person concerned. This was the position that arose in Re Colonel Aird; Ex parte Alpert.[104] In that case an Australian soldier was charged before a military tribunal in Queensland, applying the criminal law of the Australian Capital Territory as derived from the law of the Territory of Jervis Bay in respect of an alleged crime committed whilst a tourist in Thailand. In my reasons I considered whether international law as to the locality of criminal law and as to relief from the risk of double jeopardy, could be invoked so as to read down the applicable Australian statute or the constitutional head of power upon which that statute was based. When, however, the relevant international law was examined, it lent no support to any such propositions. This left the municipal law to be construed wholly from an Australian legal standpoint.[105]

The use of international law that I favour is still a minority one in the High Court of Australia and other Australian courts. However, I am convinced that it is an approach that will grow in favour as international law grows in influence. Of course, such a use of international law will depend upon a generation of judges and lawyers familiar with its principles.

This is where important teachers of international law, such as Professor Ivan Shearer, play a vital part in creating an awareness of, and sympathy to, the principles of international law: particularly those that affect human rights and fundamental freedoms. It also depends upon advocates who are familiar with the sources and willing to deploy them in their arguments of principle.

Modern text books are now available to assist the advocate, and the judge, in this endeavour. One such text book, published by Sarah Joseph, Jenny Schultz and Melissa Castan and their colleagues at the Castan Centre within the Monash Law School provides a brilliant exposition of the developing jurisprudence of the UN Human Rights Committee. The foreword to that book[106] is written by Ivan Shearer, the Australian member of that Committee. In his work on the Committee, Professor Shearer adds to its stature, to the rigour of its decision-making and therefore to its influence in Australian courts of law. That influence will continue to expand. In future generations it will be as natural to refer to the explorations of principle in such bodies as it is to call upon the wisdom of judicial discourse in the English courts, which have been our basic source of legal doctrine in Australia until recent decades. Indeed, the use of international jurisprudence will become more accepted as it becomes more familiar.

Courts Exercising International Jurisdiction

Following one of the few truly original ideas in their Constitution,[107] Australian lawyers are familiar with the notion that state courts may be vested with federal jurisdiction by valid federal law. The reverse, it has been held, cannot occur.[108] However, the experiment in vesting federal jurisdiction has been successful. It has ensured that federal law permeates every corner of Australian law.

Now we are seeing a development at the international level which, in some ways, bears comparison. National courts are no longer exclusively receptacles of national law. Increasingly, they are giving effect to the norms of international law, including the universal principles of human rights. They do this most clearly where national law incorporates treaty provisions into local law.[109] They do it in countries where the Constitution gives local significance to international law or specifically directs attention to its provisions.[110] In limited circumstances, they have long done so (and may still do) in respect of crimes of universal jurisdiction.[111]

Today we are seeing a broader and deeper movement for the reconciliation of the systems of national and international law, including national constitutional laws. Thus, a municipal tribunal, applying international law, is no longer simply an organ of its own national legal system. Instead, as Professor Ian Brownlie has explained, the national court exercises a kind of ‘international jurisdiction’.[112] It becomes, in a sense, an organ of the international judiciary. This point is also made by Justice La Forest of the Supreme Court of Canada who said: ‘Our courts – and many other national courts – are truly becoming international courts in many areas involving the rule of law.’[113]

A past Secretary-General of the Commonwealth of Nations put it well referring to the Bangalore Principles of 1988:

At Bangalore, a pebble was cast into the waters of the common law. … [T]he ripples it created will reach into the farthest corners of the Commonwealth.[114]

Now we bring this idea for the twenty-first century even beyond the legal tradition of the common law and the Commonwealth to the courts and lawyers of the entire world.

Other Indications of Hope

According to the ancients, when Pandora’s Box was opened, all the virtues escaped, save that of hope. Hope remained, because it was at the bottom.[115] We can find hope, even in the dangerous times of global terrorism, of nuclear proliferation and of the institutional failings in the UN.

As to the last, the Secretary-General of the UN has created a panel that includes Australia’s former Foreign Minister, Gareth Evans, to propose institutional changes.[116] We can see how quickly the great powers rediscover the indispensable utility of the UN. Pre-emptive unilateralism is not a doctrine well-suited to modern international relations. Despite its faults, the UN is essential and ultimately indispensable. Whilst doubtless some of its officers are time-servers, that is true of any large organisation. In my experience, most of the officers of the UN are dedicated servants of humanity.

This is plainly the case with Professor Ivan Shearer in his work on the Human Rights Committee. It is true as well of the scholars of international law who spread its boundaries. Those boundaries continue to expand. And so will the influence of international law in the decisions of national courts.

[∗] The Hon Justice Michael Kirby AC CMG, is a Justice of the High Court of Australia.

[1] J Dauth, ‘The UN in 2003: Letter from New York’, Centre for International and Public Law, Australian National University, Canberra, unpublished address 29 January 2004, 1.

[2] M J Glennon, ‘Why the Security Council Failed’ (May/June 2003) 82 Foreign Affairs 16.

[3] George P Smith Lecture, Indiana University School of Law, Bloomington, unpublished, 2 February 2004.

[4] Ibid 32, 33.

[5] H Charleworth, M Chiam, D Hovell and G Williams, ‘Deep Anxieties: Australia and the International Legal Order’ [2003] SydLawRw 21; (2003) 25 Sydney Law Review 423.

[6] Ibid 424.

[7] G Hage, Against Paranoid Nationalism: Searching for Hope in a Shrinking Society (2003). See Charlesworth et al above n 5, 425.

[8] G Hage, above n 7, 47.

[9] Ibid 77.

[10] Above n 5, 434.

[11] A v Australia (No 560/1993) 3 April 1997, UN Doc CCPR/C/59/D/560/1993, noted above n 5, 436-37; cf D Hovell, ‘The Sovereignty Stratagem – Australia’s Response to UN Human Rights Treaty Bodies’ (2003) 28 Alternative Law Journal 297.

[12] [1995] HCA 20; (1995) 183 CLR 273.

[13] Above n 5, 452-54.

[14] [1965] HCA 64; (2003) 114 CLR 1, 28 [83] per McHugh and Gummow JJ and 725 [145] per Callinan J. See above n 5, 450.

[15] (1992) 175 CLR 1, 42.

[16] J D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 1 (first published (2003) 47 Quadrant 9).

[17] H Charlesworth, ‘Human Rights, International Standards and the Protection of Minorities’ in P Cane (ed), Centenary Essays for the High Court of Australia (2004) 370.

[18] Z Kedzia, ‘United Nations Mechanisms to Promote and Protect Human Rights’ in J Symonides (ed), Human Rights: International Protection, Monitoring, Enforcement (2003) 3.

[19] M D Kirby, ‘Cambodia: The Struggle for Human Rights’ in M D Kirby, Through the World’s Eye (2000) 24.

[20] Ibid 31.

[21] As a member of the International Labour Organisation Fact-Finding and Conciliation Commission on Freedom of Association, Inquiry into South Africa (1991-1992).

[22] As co-chair of the Malawi Constitutional Conference, 1994.

[23] As a member of the Global Commission on AIDS 1988-1992.

[24] As chairman and rapporteur of the UNESCO Expert Group on the Rights of Peoples, 1988-1991.

[25] As chairman of Expert Groups on Privacy (1978-1980) and Data Security (1992-1993).

[26] As a participant in the International Colloquia on the Domestic Application of International Human Rights Norms (1988-1993).

[27] Universal Declaration on the Human Genome and Human Rights, GA Res 53/152 (11 November 1991).

[28] World Trade Organization, Agreement on Trade Related Aspects of Intellectual Property Rights of 1994 [2001] ATS 1995, No 8. See also International Bioethics Committee of UNESCO, Report of the IBC on Ethics, Intellectual Property and Genomics (SHS-503/01/CIB/8/2 Rev, Paris, 10 January 2002); cf R Cook-Degan, The Gene Wars: Science, Politics and the Human Genome (1995) 28; P Drahos and J Braithwaite, ‘Intellectual Property, Corporate Strategy, Globalisation: TRIPS in Context’ (2002) 20 Wisconsin International Law Journal 451; Nuffield Council on Bioethics, The Ethics of Patenting DNA: A Discussion Paper (2002).

[29] M D Kirby, ‘Intellectual Property and the Human Genome’ (2001) 12 Australian Intellectual Property Journal 61.

[30] UNESCO, International Bioethics Committee, Report of the IBC, above n 28.

[31] Above n 1, 2.

[32] [1948] HCA 37; (1948) 77 CLR 449, 478.

[33] [1992] HCA 57; (1992) 177 CLR 292, 305, 359-60.

[34] Above n 15

[35] Above n 12.

[36] Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449, 462 per Latham CJ, 470-71 per Dixon J. See also Chung Chi Cheung v R [1939] AC 160, 167-168; cf Thai-Europe Tapioca Service v Government of Pakistan [1975] 1 WLR 1485, 1490-492, 1494; R v Bow Street Metropolitan Stipendiary Magistrate [No 3] [1999] 1 AC 147, 197, 200, 215, 218, 241, 276-78, 288.

[37] A Lester, ‘The Judicial Protection of Human Rights in the Commonwealth’ (2003) 8 Law and Justice (India) 15. The revised Bangalore Principles are set out in this article, 21-24.

[38] Western Australia v Ward [1964] HCA 2; (2002) 113 CLR 1, 388 [956] per Callinan J. See Charlesworth et al above n 5, 457.

[39] Teoh [1995] HCA 20; (1995) 183 CLR 273, 287-88 per Mason CJ and Deane J; AMS v AIF (1999) 199 CLR 160, 180 per Gleeson CJ, McHugh and Gummow JJ. See also Minister for Foreign Affairs v Magno [1992] FCA 566; (1992) 37 FCR 298, 304 per Gummow J.

[40] (2002) 211 CLR 476.

[41] Ibid 492 [29]; cf A M Gleeson, ‘Global Influences on the Australian Judiciary’ (2002) 22 Australian Bar Review 1, 4; D Shanahan, ‘Chief Justice’s quiet struggle’, Weekend Australian (27 December 2003) 2.

[42] Above 12, 287 per Mason CJ and Deane J. See also Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 38. But see Coleman v Power [2004] HCA 39; (2004) 78 ALJR 1166.

[43] (2002) 211 CLR 476, 492 [30].

[44] Eg Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 113 CLR 543, 553 [11], 563 [43], 569 [132], 578 [93]-[94]; Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 78 ALJR 105, 133-37 [160]-[181].

[45] Above n 5, 461-63.

[46] Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 657-61; Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 417-18; Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354, 380-81 [68]; Austin v The Commonwealth [2003] HCA 3; (2003) 77 ALJR 491, 543-44 [257]; Al-Kateb v Godwin [2004] HCA 37; (2004) 78 ALJR 1099, 1131-136 [169]-[190].

[47] AMS v AIF (1999) 199 CLR 160, 180 referring to Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 69, 74, 75, 78, 79; Al-Kateb v Godwin [2004] HCA 37; (2004) 78 ALJR 1099, 1113-115 [67]-[72].

[48] Eg Re Public Service Employee Relations Act [1987] 1 SCR 313, 349 per Dickson CJ; United States v Cotrioni [1989] 1 SCR 1469, 1486; Sleight Communications Inc v Davidson [1989] 1 FCR 1038, 1056; R v Ewanchuk [1999] 1 SCR 330, 365 [73]; United States v Burns [2001] 1 SCR 283, 286 [8]; Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 [46]; United States v Shulman [2001] 1 SCR 616, 635-36 [41]-[42] per Arbour J (considered Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246, 274-79 [78]-[95]); cf A F Bayefsky, ‘International Human Rights in Canadian Courts’ in B Conforti and F Francioni (eds), Enforcing International Human Rights in Domestic Courts (1997) 195, 296; R St J MacDonald, ‘The Relationship Between International and Domestic Law in Canada’ in R St J Macdonald et al (eds), Canadian Perspectives on International Law and Organisation 88; L C Green, International Law: A Canadian Perspective (2nd ed, 1988) 85; ‘International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms’ in E P Belobaba and E Gertner, The New Constitution and the Charter of Rights (1982) 287.

[49] S v Makwanyane 1995 (3) SA 391 [37]-[39]; S v Williams 1995 (3) SA 632 [22]; Ferreira v Levin 1996 (1) SA 984 [72]; Mistry v Interim National Medical and Dental Council of South Africa [1998] ZACC 10; 1998 (4) SA 1127 [3]; cf J Dugard, ‘International Human Rights’ in D van Wyk et al, Rights and Constitutionalism: The New South African Legal Order (1994) 171, 193.

[50] Re Public Service Employees’ Relations Act [1987] 1 SCR 313.

[51] [1997] USSC 77; 521 US 898, 921 fn 9, 977 (1997).

[52] W H Rehnquist, ‘Constitutional Courts – Comparative Remarks’ (1989) reprinted in P Kirchhof and D P Conners (eds), Germany and Its Basic Law: Past, Present and Future – A German-American Symposium (1993) 411, 412 quoted in H H Koh, ‘International Law as Part of Our Law’ (2004) 98 American Journal of International Law 2, 6-7.

[53] [2002] USSC 3164; 536 US 304 (2002); 70 USLW 4585.

[54] [2002] USSC 3164; 536 US 304, 316-17 [2002] USSC 3164; (2002); 70 USLW 4585, 4589, fn 21. See also Roper v Simmons [2005] USSC 2017; 161 L Ed 2d 1 (2005).

[55] [2002] USSC 3164; 536 US 304, 324 [2002] USSC 3164; (2002); 70 USLW 4585, 4591.

[56] [2002] USSC 3164; 536 US 304, 347 [2002] USSC 3164; (2002); 70 USLW 4585, 4598 (Scalia J, with whom Thomas J joined).

[57] [2002] USSC 3164; 536 US 304, 348 [2002] USSC 3164; (2002); 70 USLW 4585, 4598.

[58] M D Kirby, ‘The Australian Use of International Human Rights Norms: From Bangalore to Balliol – A View from the Antipodes’ (1992) 18 Commonwealth Law Bulletin 1306.

[59] Quoted from transcript, Koh above n 52, 8; Transcript of oral argument at 24. Gratz v Bollinger [2003] USSC 4654; 123 S Ct 2411 (2003) (No 02-516), available in 2003 US Trans Lexis 27.

[60] [2003] USSC 4657; 539 US 306, 344 [2003] USSC 4657; (2003); 123 S Ct 2325, 2347.

[61] (21 December 1965) 660 UNTS 195.

[62] [2003] USSC 4776; 539 US 558, 306, 344 [2003] USSC 4657; (2003); 123 S Ct 2325, 2347.

[63] [2003] USSC 4776; 539 US 558, 578-79 [2003] USSC 4776; (2003); 123 S Ct 2472, 2484.

[64] [1986] USSC 194; 478 US 186 (1986).

[65] Above n 63.

[66] [1981] ECHR 5; (1981) 4 EHRR 149.

[67] [2003] USSC 4776; 539 US 558, 576-77 [2003] USSC 4776; (2003); 123 S Ct 2472, 2483. See Koh above n 52, 8-9.

[68] Toonen v Australia, Comm No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994). See Koh, above n 52, 9.

[69] International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171; Human Rights (Sexual Conduct) Act 1994 (Cth).

[70] Koh above n 52, 10. I acknowledge my debt to Professor Koh’s 2004 article for many of these points.

[71] This analysis builds on earlier discussion in H H Koh, ‘On American Exceptionalism’ 55 Stanford Law Review 1479, 1513-515 (2003); H H Koh, ‘International Business Transactions in United States Courts’ 261 Recueil des Cours 13, 226-34 (1996).

[72] According to Professor Koh, despite his occasional extrajudicial writings, Chief Justice Rehnquist in his Court opinions ‘remains firmly in the nationalist camp’.

[73] Eg Foster v Florida 537 US 990, 990n (2002) (Thomas J, concurring in denial of certiorari) [‘[T]his Court … should not impose foreign moods, fads or fashions on Americans’].

[74] According to Professor Koh, Justices Stevens and Souter are also regular members of this camp. Through their extra-judicial statements and opinions in the past Terms, Justices Anthony Kennedy and Sandra Day O’Connor, have also increasingly demonstrated transnationalist leanings.

[75] A cross-reference to H A Blackmun, ‘The Supreme Court and the Law of Nations’ (1994) 104 Yale Law Journal 39, 49. For elaboration of this theme see H H Koh, ‘Justice Blackmun and the World Out There’ (1994) 104 Yale Law Journal 23, 28-31 (collecting cases).

[76] Cf H H Koh ‘The Globalisation of Freedom’ (2001) 26 Yale Journal of International Law 305-306.

[77] On 1 April 2004, a Bill was introduced into the House of Representatives in the United States and referred to the Committee on the Judiciary. It is titled the American Justice for American Citizens Bill 2004. It purports to forbid the use by the Supreme Court or other federal courts of ‘the constitutions, laws … or judicial decisions of any international organization or foreign state, except for the English constitutional and common law or other sources relied upon by the Framers’. In Australia, such a law might well offend the doctrine of the separation of powers in the Constitution.

[78] Dating back at least to the opinion of O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363 where he said: ‘Every statute is to be so interpreted and applied, so far as its language permits, as not to be inconsistent with the comity of nations or with the established rules of international law‘; cf A F Mason, ‘The Tension Between Legislative Supremacy and Judicial Review’ (2003) 77 ALJ 803, 808-9.

[79] [2003] USSC 4776; 539 US 558 (2003); 123 S Ct 2472.

[80] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 78 ALJR 180; 203 ALR 112; cf Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511, 553 [45] per McHugh J.

[81] Lawrence v Texas [2003] USSC 4776; 539 US 558, 578-79 [2003] USSC 4776; (2003); 123 S Ct 2472, 2484.

[82] [2004] HCA 36; (2004) 78 ALJR 1056.

[83] Ibid 1079 [126] referring to Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287; Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 384 [97], 386 [101].

[84] Behrooz [2004] HCA 36; (2004) 78 ALJR 1056, 1079-80 [125]-[133].

[85] Ibid 1099.

[86] Ibid 1127.

[87] Ibid 1029-30.

[88] Al-Kateb v Godwin [2004] HCA 37; (2004) 78 ALJR 1099, 1112 [92] referring to Polites v The Commonwealth

[1945] HCA 3; (1945) 70 CLR 60, 78 per Dixon J. See also at 69, 74, 75, 79, 82-83.

[89] [1998] HCA 22; (1998) 195 CLR 337, 384 [97].

[90] Ibid 417-19 [166]-[167].

[91] [1945] HCA 3; (1945) 70 CLR 60, 78.

[92] Charter of the United Nations, above n 2, Preamble.

[93] [2004] HCA 37; (2004) 78 ALJR 1099, 1132.

[94] Ibid 1166.

[95] Ibid 1209-210 [240]-[244].

[96] Coleman v Power [2004] HCA 39; (2004) 78 ALJR 1166, 1172, [19] citing Garland v British Rail Engineering Limited [1982] UKHL 2; [1983] 2 AC 751, 771.

[97] Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 per Mason CJ and Deane J. See [2004] HCA 39; (2004) 78 ALJR 1166, 1172, [19].

[98] Coleman v Power [2004] HCA 39; (2004) 78 ALJR 1166, 1172, [19] per Gleeson CJ.

[99] Ibid 1211, [245].

[100] Ibid 1211, [246] citing Ahmad v Inner London Education Authority [1978] QB 36, 48 per Scarman LJ.

[101] Above n 98 1212, [249].

[102] [2004] HCA 20.

[103] Ibid 768 [169]. See further R Chisholm, ‘Immigration and the Family Court: The High Court Speaks’ (2004) 18 Australian Journal of Family Law 193, 196-99.

[104] [2004] HCA 44.

[105] Ibid [133].

[106] S Joseph, J Schultz and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2nd ed, 2004) xi-xiv. See also Lord Lester and D Pannick, Human Rights Law & Practice (2nd ed, 2004), reviewed (2004) 78 Australian Law Journal 612.

[107] Constitution, s 77(ii).

[108] Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511; cf Gould v Brown (1998) 193 CLR 346.

[109] Eg Migration Act 1958 (Cth), s 36 incorporating by implication the Convention Relating to the Status of Refugees (1951), 189 UNTS 150 with its amending Protocol.

[110] As in the references in the Indian Constitution, s 51(c) and the South African Constitution, s 59(1)(b) directing attention to international law.

[111] M D Kirby, ‘Universal Jurisdiction and Judicial Reluctance: A New ‘Fourteen Points’’ in S Macedo (ed), Universal Jurisdiction – National Courts and the Prosecution of Series Crimes Under International Law (2004) 240.

[112] Cf I Brownlie, Principles of Public International Law (5th ed, 1998) 584, 708. See Al-Kateb v Godwin [2004] HCA 37; (2004) 78 ALJR 1099, 1131 [168].

[113] See G V La Forest, ‘The Expanding Role of the Supreme Court of Canada in International Law Issues’ (1996) 34 Canadian Year Book 89, 100. See also The Queen v Finta [1004] 1 SCR 701, 774 where La Forest J remarked that a Canadian judge’s interpretation of international law ‘bears some force internationally’ citing art 38 of the Statute of the International Court of Justice. See G van Ert, Using International Law in Canadian Courts (2002) 46.

[114] S Ramphal, Introduction by the Secretary-General to Developing Human Rights Jurisprudence: The Domestic Application of Human Rights Norms (1988) viii, noted in Lester, above n 37, 25.

[115] Cf Zumpano v Montagnese [1997] 2 VR 525, 528 per Brooking JA.

[116] Above n 1, 3.

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