Tēnā koutou, yumalundi, and welcome to this edition of ANZSIL Perspective. Another bumper Perspective with contributions from Hussein Badderine and Jack Holmes, both writing about the Artemis Accords, and a collaborative article from Lauren Sanders, Rain Liivoja and Zena Assad on the 2024 Responsible Artificial Intelligence in the Military Domain Summit. These Perspectives remind us that international law has long played a role in shaping the domestic legal landscapes of Australia and New Zealand. From foundational principles in the common law to contemporary issues like human rights, environmental protection, and global trade, it has influenced how our courts interpret and apply legal norms. Yet despite its importance, international law remains a specialist field, sometimes misunderstood, or underutilized within the broader judicial framework. The challenge lies not in whether international law can be applied but in ensuring that courts have the necessary guidance to do so effectively.
The jurisprudence around international law’s role within our domestic jurisdictions is clear: where treaties have been ratified but not incorporated into domestic law by statute, they can still influence the development of domestic law. As we well know, ratification of an international treaty can give rise to a legitimate expectation that decision-makers would act consistently with that treaty. More recently, cases involving climate change litigation, Indigenous rights, and refugee law bring international legal principles into our courtrooms but there remain two questions: Is it well understood? What role can our scholars play in developing international legal knowledge and understanding?
International law arguably still occupies a unique space, especially if not specifically incorporated into domestic legislation. This duality – where international law is influential but not strictly enforceable unless legislated – creates a balancing act between global norms and domestic interpretations that some might say is rarely achieved, especially in those challenging modern rights based claims.
One of the central challenges is that the interpretation and application of international law often requires specialized knowledge that generalist judges and lawyers may not possess. Unlike domestic legal principles that are firmly grounded in centuries of often English traditions, international law frequently draws on a wider array of sources, including treaties, custom, and decisions from international tribunals. This can make the task of integrating international law into domestic cases complex, especially in fields such as human rights and environmental law, where international obligations may conflict with local practices or political priorities.
There remains a cautious approach when dealing with international law principles, underscoring the need for expert submissions and judicial education in this domain. Courts are increasingly reliant on amici curiae, legal scholars, and specialists to clarify the nuances of international law, particularly where domestic and international legal frameworks intersect. This reflects a broader global trend where national courts are more frequently engaging with international law but often do so with a measure of hesitancy.
At the same time, international law offers immense value to domestic legal systems. It arguably provides an external check on national policies, strengthens human rights protections, and fosters accountability in areas such as transnational crime. The challenge is not whether international law should be part of domestic law – it is and will continue to be – but how to ensure that it is applied consistently and with the necessary expertise. Most of what I have said above is uncontentious but becomes fascinating when one considers the Perspectives we have in our collection this month which allow us to come to terms with judges having to grapple with, controlling moon sovereignty, outerspace commercial mining interests and safe zomes and testing the boundaries of military AI.
At ANZSIL Perspective, this means there is a crucial need for our scholarship to help bridge the gap between domestic and international jurisprudence. To this end, we are particularly keen to attract submissions from diverse scholars, practitioners, and early-career researchers whose work addresses the practical applications of international law in domestic settings in Australia and New Zealand. Whether your expertise lies in human rights, environmental law, the sea, space or global trade, your insights can contribute to the ongoing evolution of Australian and New Zealand jurisprudence, ensuring that international law remains both relevant and effectively integrated into our legal systems.
ANZSIL Perspective welcomes submissions from every level of post-graduate scholarship and legal practice for review and publication. We look forward to reading your perspectives on international law ahead of our next deadline: 22 November 2024.
Felicity Gerry KC (Editor)
Photo: CHUTTERSNAP/Unsplash
Felicity Gerry KC
Dr Felicity Gerry KC is on the lists of counsel for the ICC and KSC, recently on the defence team for Mr Al Hassan at the ICC and leading the defence for Mr Bahtijari at the KSC. She is admitted in England and Wales and Victoria, Australia and specialises in homicide, terrorism and war crimes trials and appeals. She has a particular interest in complicity law. She led amicus briefs in the Radovan Karadžić appeal on the lack of foundation for JCEIII and in the Dominic Ongwen appeal on the non-punishment principle. She is a Professorial Fellow at RJ4All, an Hon Prof at the University of Salford and formerly Professor of Legal Practice at Deakin University. She has a long history of teaching topics around contemporary international legal challenges such as terrorism, modern slavery law, climate change law and war crimes. She is widely published in areas including women & law, technology & law and reforming justice systems.
