Journal articles on the topic 'Domestic relations courts Australia'
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1
Trakman, Leon E. "Investor State Arbitration or Local Courts: Will Australia Set a New Trend?" Journal of World Trade 46, Issue 1 (February 1, 2012): 83–120. http://dx.doi.org/10.54648/trad2012004.
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The Australian Government announced in April 2011 that it will no longer include arbitration clauses in its investment treaties but will provide that investment disputes between foreign investors and host states be heard by the domestic courts of those host states instead. This statement reflects doubts by a developed state about the efficiency of bilateral investment treaties (BITs) in general and investment arbitration in particular. It also raises the question whether other countries will follow particular strategies to suit their discrete needs. One ramification is that resource wealthy states will make tactical decisions, such as entering into BITs only with capital exporting countries, as South Africa has declared. Another is whether developed states will avoid concluding BITs with developing countries whose domestic court systems are unknown or mistrusted. Yet another issue is how a policy statement, such as enunciated by Australia, will impact on its ability to attract foreign investment while protecting its national interests and also its investors abroad. This article deals with these issues, highlighting the significance of competing dispute resolution options in addressing the issues.
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Daglish, Kristen. "The Crime of Genocide: Nulyarimma v. Thompson." International and Comparative Law Quarterly 50, no. 2 (April 2001): 404–11. http://dx.doi.org/10.1093/iclq/50.2.404.
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On 31 May 1999 two matters came before the Full Federal Court of Australia, constituted by Justices Whitlam, Wilcox and Merkel. The two cases heard together were different in nature and origin, but their common feature was a claim of genocide. The primary issue was whether the international crime of genocide forms part of the law of Australia. The majority view was that, before an international crime could be prosecuted in an Australian court, specific domestic legislation needed to be enacted. The dissenting opinion was that genocide had become an offence at common law and could be prosecuted. In this case note I will analyse the opinions both in the terms of their impact on the relationship between international law and domestic law in Australia, and in light of recent trends in Australia and other common law countries.
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Gray, Anthony. "Forum Non Conveniens in Australia: A Comparative Analysis." Common Law World Review 38, no. 3 (September 2009): 207–44. http://dx.doi.org/10.1350/clwr.2009.38.3.0188.
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This paper critically examines the law of forum non conveniens, in particular the use of the ‘clearly inappropriate forum’ test in Australia, compared with the ‘more appropriate forum’ test applied in jurisdictions such as the UK and the US. It traces the development of the law in the UK in relation to forum non conveniens, including the English acceptance of the doctrine, and how it has been applied in various cases. Some criticism of the ‘more appropriate forum’ test is noted, and it is not recommended that the courts adopt the ‘laundry list’ approach evident in some US decisions, where up to 25 different factors are considered in assessing a forum non conveniens application. It considers the Australian ‘clearly inappropriate forum’ test, and concludes that the ‘clearly inappropriate forum’ test should no longer be followed in that it is unnecessarily parochial and is not consistent with other goals of the rules of private international law including comity. Links between Australia and the subject matter may well be tenuous. Confusion attends the application of the test in Australia at present, the court has rejected the English approach but claims to apply some of the factors mentioned in the English approach in the Australian test, and there is an undesirable schism between statutory rules applicable in domestic cases and the approach when the common law doctrine of forum non conveniens is used. The law regarding forum non conveniens should be harmonious with choice of law rules, and interest analysis can assist in formulating the desired approach to forum non conveniens applications.
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Kiefel, Susan, and Gonzalo Villalta Puig. "The Constitutionalisation of Free Trade by the High Court of Australia and the Court of Justice of the European Union." Global Journal of Comparative Law 3, no. 1 (May 29, 2014): 34–49. http://dx.doi.org/10.1163/2211906x-00301002.
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Together with matters of multilateral and bilateral regulation, domestic regulation affects the law and policy of economic relations between the European Union (eu) and Australia. This article discusses the constitutional determinants of the Australian single market and the significance to its development of the free trade jurisprudence of the Court of Justice of the European Union. When Australia was federated, free trade between the States and the removal of barriers at the borders were at the forefront of constitutional objectives. They find expression in Section 92 of the Australian Constitution. It took some time for the jurisprudence to develop by reference to principles of competition. Recent decisions of the High Court of Australia highlight the need to prove that a law or measure may have anti-competitive effects within a market to hold it invalid. Application of this (unacknowledged) test of proportionality invites comparison with eu law and opens to question the usefulness of protectionism as a criterion of constitutional invalidity for trade without borders in the ‘new economy’.
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Ludeke, J. T. "The External Affairs Power: Another Province for Law and Order?" Journal of Industrial Relations 35, no. 3 (September 1993): 453–67. http://dx.doi.org/10.1177/002218569303500306.
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Although there was some surprise when the prime minister announced that the government would legislate to give effect to certain conventions of the International Labour Organisation, the way has been open to take this initiative for many years. The possibility of relying on the external affairs power in the Constitution to invoke the conventions, and thereby regulate labour conditions, was first canvassed in the High Court in 1936. Since 1982, there has been a series of cases involving Common wealth legislation founded on conventions to which Australia is party and it is now well established that the external affairs power will support domestic legislation giving effect to Australia's international commitments. To date, Commonwealth legislative initiatives have been in such areas as prohibiting racial discrimination and the protection of world heritage properties, but the reasoning which has been applied by the High Court is equally relevant to legislation providing for regulation of labour conditions. Commonwealth legislation in this field has meant an erosion of state responsibility and the cumulative effect of such legislation raises questions about the disturbance of the federal balance established by the Constitution.
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T, Tirtawening, and Rini Maryam. "THE URGENCY OF APPLYING DOMESTIC VIOLENCE SCREENING MECHANISM FOR DIVORCE MEDIATION IN RELIGIOUS COURT." Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada 30, no. 1 (February 15, 2018): 138. http://dx.doi.org/10.22146/jmh.28713.
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AbstractThe mediation process in divorce cases is vulnerable to power relation imbalances and domestic violence. Domestic Violence Screening is a set of questions delivered by the mediator to the parties in Religious Court to examine whether domestic violence happens in the marriage. Domestic Violence Screening in mediation is not well known in Indonesia however it has been vastly used in many countries such as USA and Australia. This research tried to explained the benefit of Domestic Violence Screening in divorce mediation in Religious Court and identify whether it can be applied in Indonesia. Screening allows for: a) identification of power relation imbalance and domestic violence; b) domestic violence recording; and c) provide referral services for domestic violence victims. IntisariMediasi perkara perceraian rentan mengalami ketimpangan relasi kuasa dan kekerasan dalam rumah tangga/KDRT. Skrining KDRT (screening domestic violence) merupakan sejumlah daftar pertanyaan yang diajukan oleh mediator kepada para pihak yang berperkara di pengadilan agama untuk memeriksa apakah telah terjadi kekerasan selama ikatan pernikahan. Meskipun skrining KDRT belum dikenal di Indonesia namun telah digunakan secara luas dalam mediasi di berbagai negara. Penelitian ini bertujuan untuk memberikan gambaran sejauh mana manfaat skrining KDRT pada saat mediasi perkara perceraian dan apakah skrining tersebut dapat diterapkan di Indonesia. Keberadaan skrining memudahkan untuk: (a) mengidentifikasi terjadinya ketimpangan relasi kuasa dan kekerasan domestik sebagai faktor penyebab perceraian, (b) melakukan pendataan kasus KDRT, dan (c) memberikan layanan rujukan kepada korban KDRT.
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Kunz, Raffaela. "Judging International Judgments Anew? The Human Rights Courts before Domestic Courts." European Journal of International Law 30, no. 4 (November 2019): 1129–63. http://dx.doi.org/10.1093/ejil/chz063.
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Abstract In recent times, instances of contestation against the European Court of Human Rights and the Inter-American Court of Human Rights have made headlines, and, in many of these cases, domestic courts have played a role by refusing to follow the human rights courts or even declaring their judgments to be unconstitutional. This article undertakes an in-depth analysis of these instances of judicial resistance and puts them into context. This shows that domestic courts, even though originally not having been allocated this role, have become important ‘compliance partners’ of the human rights courts and now play an important and autonomous role in the implementation of their judgments. At the same time, they act as ‘gatekeepers’ and limit their effects in the domestic order. Recent cases even suggest a turn to a less open and more national self-perception of domestic courts. While this reflects to some extent the multiple – and sometimes conflicting – roles domestic courts perform at the intersection of legal orders, the article argues that the open and flexible stance many domestic courts take when faced with international judgments is better suited to cope with the complex and plural legal reality than systematically judging anew on matters already decided by the human rights courts.
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Nollkaemper, André. "Internationally Wrongful Acts in Domestic Courts." American Journal of International Law 101, no. 4 (October 2007): 760–99. http://dx.doi.org/10.1017/s0002930000037714.
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This article explores the relevance of the law of international responsibility to the practice of domestic courts. In addition to proposing analytical distinctions that allow us to systematize and differentiate domestic case law pertaining to international responsibility, the article essentially advances three arguments. First, in certain circumstances domestic courts may find that a breach of an international obligation by the forum state constitutes an internationally wrongful act. Principles of international responsibility may be applicable to such a wrong. Second, domestic courts may contribute to the implementation of the international responsibility of states by ensuring that principles of cessation and reparation are given effect. Third, international law leaves much leeway to states and their courts in applying principles of international responsibility in a specific domestic legal and factual context. The application of such principles will be colored by their interaction with domestic law and will vary among states.
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Kahraman, Filiz, Nikhil Kalyanpur, and Abraham L. Newman. "Domestic courts, transnational law, and international order." European Journal of International Relations 26, no. 1_suppl (September 2020): 184–208. http://dx.doi.org/10.1177/1354066120938843.
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This article revisits the relationship between law and international order. Building on legal research concerned with transnational law, we argue that domestic courts are endogenous sites of international political change. National courts are constitutive of international order by generating new rules, adjudicating transnational disputes, and bounding state sovereignty. We illustrate the ways in which national courts create new political opportunities by updating three core international relations theory debates. Recognizing the role of domestic courts as global adjudicators enhances our understanding of regime complexity and international forum shopping. By re-interpreting aspects of conventional international law, and engaging in cross-border dialogue, domestic courts challenge our understanding of international diffusion and judicialization. By redefining the boundaries of state authority and sovereignty, national courts create potential for conflict and cooperation. A transnational law perspective illustrates the porous nature between domestic and international spheres, highlighting how domestic courts have become adjudicators for state and non-state actors that operate across mainstream levels of analysis. Our approach calls on scholars to move beyond analyzing national legal systems as mechanisms of compliance to instead consider domestic courts as co-creators of international order.
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Voeten, Erik. "Populism and Backlashes against International Courts." Perspectives on Politics 18, no. 2 (June 20, 2019): 407–22. http://dx.doi.org/10.1017/s1537592719000975.
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International courts, like domestic courts, protect liberal limits on majoritarianism. This sometimes puts these courts in a position to protect the property rights of the “corrupt elites” that are targeted by populists or the civil liberties of those who are targeted in domestic populist identity politics. Moreover, populism offers an ideology to attack the authority of a court rather than just its individual rulings. An empirical examination illustrates the plausibility of this argument. A large number of backlashes against international courts arise from judgments that reinforce local populist mobilization narratives. Populist backlashes against international courts are not just about sovereignty but often follow efforts to curb domestic courts, usually for similar reasons. Yet populist backlashes do not always succeed, either because populist leaders do not follow up on their exit threats or because populism is too thin an ideology for creating successful multilateral reform coalitions.
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Kovacek-Stanic, Gordana. "Biomedically assisted reproduction and child birth: Surrogate motherhood in comparative European law and Serbia." Stanovnistvo 51, no. 1 (2013): 1–21. http://dx.doi.org/10.2298/stnv1301001k.
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Surrogate motherhood is an arrangement in which a woman agrees to carry and deliver a child for another couple who ordered the pregnancy. This procedure is applied today in Great Britain, Holland (although without legal regulations), Israel, Greece, Ukraine, Armenia, Georgia, the USA and Australia, and it is forbidden in France, Austria, Spain, Germany, Switzerland and Slovenia. There are two types of surrogacy, one when the woman gives birth to a child who is genetically her own ("partial", genetic surrogacy), and the other where the surrogate mother only carries and gives birth to a child, whereby the child is genetically from the couple that wanted the child, or the fertilized egg is from a third woman (donor), or the embryo was donated ("full", "total", gestational surrogacy). In these cases two women take part in conception and birth of the child while in the last case there is a third woman who will raise the child. Biologically observed, the woman whose egg has been fertilized may be called the genetic mother, while the woman who carried the pregnancy and gave birth to the child - the gestational carrier. Taking into consideration that the Preliminary Draft of the Serbian Civil Law anticipates the introduction of surrogate motherhood into domestic law, we believe restrictive solutions should first be taken into consideration. This would mean that only full surrogating should be allowed, namely the egg should be from the woman who wants the child and not the surrogate mother. In domestic conditions, genetic surrogation should not be allowed as it leads to confusion in family relations, and kinships still have an important social and legal significance in our country. The surrogate mother should be a woman who has already given birth, because in that way any possible shocks which might arise after birth when the woman who has to handover the child to the intended couple would be avoided. The next condition would be that persons involved in this procedure should have usual residency in Serbia so as to prevent any international complications or problems. As far as compensation is concerned, only compensation of so-called reasonable expenses which the surrogate mother would incur should be allowed. The surrogate contract should be approved by a court judge, who would have the obligation to determine if all legal conditions have been fulfilled for surrogate motherhood, and to explain the contract effects to the contracting parties. Apart from that, psycho-social counselling of all persons involved in the procedure should be anticipated.
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Powell, Emilia Justyna. "Two Courts Two Roads: Domestic Rule of Law and Legitimacy of International Courts." Foreign Policy Analysis 9, no. 4 (July 10, 2012): 349–68. http://dx.doi.org/10.1111/j.1743-8594.2012.00198.x.
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Gáspár-Szilágyi, Szilárd. "Let Us Not Forget about the Role of Domestic Courts in Settling Investor-State Disputes." Law & Practice of International Courts and Tribunals 18, no. 3 (February 7, 2020): 389–415. http://dx.doi.org/10.1163/15718034-12341410.
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Abstract This overview illustrates that there is a gap in our knowledge of how domestic courts handle investor-State disputes. As it turns out, some foreign investors use the domestic courts of the host State prior to initiating investment treaty arbitration. Subject matter-wise, these cases are very diverse and not all of them are initiated by investors against the host State. Moreover, in the four countries analysed, investors often appealed to the highest courts of the land, but they lost more cases than they won. These findings should help UNCITRAL Working Group III conceptualize the meaning of “investor-State dispute” and the relationship between domestic and international methods of ISDS. This overview concludes by inviting further empirical research to understand how domestic courts handle investor-State disputes. This in turn can help us develop normative arguments as to why domestic courts should be included in the reform process.
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Muharremi, Robert. "The Concept of Hybrid Courts Revisited: The Case of the Kosovo Specialist Chambers." International Criminal Law Review 18, no. 4 (November 10, 2018): 623–54. http://dx.doi.org/10.1163/15718123-01804008.
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The article analyses and criticizes the concept of hybrid courts. The main proposition is that the concept of hybrid courts is unclear and that there are no clear criteria which would provide guidance for establishing if a judicial body is a hybrid court or not. The idea of hybrid courts is conceptually misleading because it creates the perception that hybrid courts are a separate institutional category different from international and domestic criminal courts. The author argues that the concept of hybrid courts should therefore be abandoned in favour of clearer criteria which distinguish between international and domestic courts. Analysing the Kosovo Specialist Chambers from this perspective, the author argues that the Kosovo Specialist Chambers are an international criminal court and not a domestic court which has legal implications, such as concerning immunity of heads of state.
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Cai, Congyan. "International Law in Chinese Courts During the Rise of China." American Journal of International Law 110, no. 2 (April 2016): 269–88. http://dx.doi.org/10.5305/amerjintelaw.110.2.0269.
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The number of countries in which domestic courts are actively engaged with major public affairs has increased markedly since the early 1990s. In many transitional states, in particular, domestic courts have ruled on great constitutional controversies, which influence the national political process. They have also taken an active role in the application of international law— especially human rights treaties—and at times treat such treaties as a “New Standard of Civilization.” In particular, domestic courts have at times invoked international law in becoming more aggressive toward the executive branch. This trend has been one normative element inspiring some theorists to propose a new field known as comparative international law. This article highlights a different set of elements that become manifest in assessing the rapid overall rise in references to, and application of, international law by courts in China in recent years.
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VAN ALEBEEK, ROSANNE. "Domestic Courts as Agents of Development of International Immunity Rules." Leiden Journal of International Law 26, no. 3 (July 31, 2013): 559–78. http://dx.doi.org/10.1017/s0922156513000241.
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AbstractThis paper explores the role of domestic courts in the development of international immunity rules. It assesses how domestic immunity decisions take meaning in the process of law formation and law determination, and examines whether the distinct influence of domestic-court decisions (as compared to international-court decisions) in that process results in a different role, and concomitant different rules, in the process of interpretation of rules of international law. The paper argues that while domestic courts are as a matter of international law bound by the same rules of interpretation as international courts, they are particularly well placed to address access to court concerns raised by immunity rules and may play a prominent role in the development of international law in this field in the years to come.
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Kosař, David, and Lucas Lixinski. "Domestic Judicial Design by International Human Rights Courts." American Journal of International Law 109, no. 4 (October 2015): 713–60. http://dx.doi.org/10.5305/amerjintelaw.109.4.0713.
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Regional human rights courts in Europe and the Americas came into being in the wake of World War II. The European Court of Human Rights (ECHR) and Inter-American Court of Human Rights (IACHR) were established in order to adjudicate on alleged violations of the rights of individuals. Yet, since their inception these courts have also influenced other areas of international law. A part from their impact on general international law, their case law has had significant spill over effects on international criminal law, international refugee law, international environmental law, the law of armed conflicts, and the law of the sea.
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YUAN, Jingdong. "Australia–China Relations at 50." East Asian Policy 14, no. 02 (April 2022): 93–108. http://dx.doi.org/10.1142/s1793930522000149.
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Australia–China relations are at a turning point 50 years after diplomatic recognition. While the past five decades have witnessed extensive growth in economic exchanges, in recent years, bilateral ties have experienced serious deterioration. Australia’s alliance with the United States, domestic politics—in particular the two major parties’ approaches to foreign policy—and economic interdependence are important variables in Canberra’s approach to China. There will be no exception for the incoming Australian Labor Party government to deal with these.
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Tyson, Danielle, Deborah Kirkwood, and Mandy Mckenzie. "Family Violence in Domestic Homicides." Violence Against Women 23, no. 5 (July 9, 2016): 559–83. http://dx.doi.org/10.1177/1077801216647796.
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This article examines the impact of legislative reforms enacted in 2005 in Victoria, Australia, on legal responses to women charged with murder for killing their intimate partner. The reforms provided for a broader understanding of the context of family violence to be considered in such cases, but we found little evidence of this in practice. This is partly attributable to persistent misconceptions among the legal profession about family violence and why women may believe it necessary to kill a partner. We recommend specialized training for legal professionals and increased use of family violence evidence to help ensure women’s claims of self-defense receive appropriate responses from Victorian courts.
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Schermers, Henry G. "The Role of Domestic Courts in Effectuating International Law." Leiden Journal of International Law 3, no. 3 (December 1990): 77–85. http://dx.doi.org/10.1017/s0922156500002193.
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In his article on the implementation of international law by the domestic courts in the United States, Richard Falk focuses on the possible role of domestic courts with respect to the acts of foreign policy which may be contrary to international law. In general that role is limited. This is the same in Europe. Falk mentions efforts of individuals, to change national foreign policy by means such as the Russell Tribunal, boycotts of products, blocking of tracks and the occupation of buildings. Such activities also happen in Europe but rather with the intention to attract public attention than with the purpose to litigate in court. In Europe it is generally accepted that courts should not take policy decisions of that kind.
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Croft, Clyde. "Recent Developments in Arbitration in Australia." Journal of International Arbitration 28, Issue 6 (December 1, 2011): 599–616. http://dx.doi.org/10.54648/joia2011046.
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Australia has recently modernized its international and domestic commercial arbitration law to reflect (with some amendments) the 2006 version of the UNCITRAL Model Law on International Commercial Arbitration. As well as legislative reform, Australia has taken practical steps such as providing new dispute resolution facilities and specialist court arbitration lists to enhance Australia as an arbitral seat. Recent judgments by Australian courts have been supportive of international arbitration and have indicated a willingness to apply the international jurisprudence relating to the Model Law and the New York Convention. These improvements have increased Australia's attractiveness as an arbitral seat.
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Kingston, Beverley, and B. W. Higman. "Domestic Service in Australia." Labour History, no. 83 (2002): 226. http://dx.doi.org/10.2307/27516898.
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Longobardo, Marco. "State Immunity and Judicial Countermeasures." European Journal of International Law 32, no. 2 (April 23, 2021): 457–84. http://dx.doi.org/10.1093/ejil/chab013.
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Abstract This article explores whether domestic courts can deny jurisdictional immunity of a state as a countermeasure. The article offers a survey of state practice that, according to some scholars, would support this argument, demonstrating that the corresponding practice is scarce, and that relevant domestic legislation denying jurisdictional immunity is not adopted as a countermeasure. Typically, countermeasures are adopted by political organs, which are responsible for the state’s international relations and which can assess what is a lawful response to a violation of international law. Domestic courts are not entitled to adopt countermeasures without the involvement of the executive organs that are competent for the international relations of the state. This article demonstrates that a domestic court’s denial of sovereign immunity as a countermeasure is unlawful without a prior determination of the government, and it is highly impractical when that determination is provided.
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Benvenisti, Eyal. "Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts." American Journal of International Law 102, no. 2 (April 2008): 241–74. http://dx.doi.org/10.2307/30034538.
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Not so long ago the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. Their policy was to avoid any application of foreign sources of law that would clash with the position of their domestic governments. Many jurists find recourse to foreign and international law inappropriate. But even the supporters of reference to external sources of law hold this unexplored assumption that reliance on foreign and international law inevitably comes into tension with the value of national sovereignty. Hence, the scholarly debate is framed along the lines of the well-known broader debate on “the countermajoritarian difficulty.” This article questions this assumption of tension. It argues that for courts in most democratic countries—even if not for U.S. courts at present—referring to foreign and international law has become an effective instrument for empoweringthe domestic democratic processes by shielding them from external economic, political, and even legal pressures. Citing international law therefore actually bolsters domestic democratic processes and reclaims national sovereignty from the diverse forces of globalization. Stated differently, most national courts, seeking to maintain the vitality of their national political institutions and to safeguard their own domestic status vis-a-vis the political branches, cannot afford to ignore foreign and international law.
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Lupu, Yonatan, Pierre-Hugues Verdier, and Mila Versteeg. "The Strength of Weak Review: National Courts, Interpretive Canons, and Human Rights Treaties." International Studies Quarterly 63, no. 3 (August 26, 2019): 507–20. http://dx.doi.org/10.1093/isq/sqz026.
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Abstract Enforcement of international law is often delegated to national courts, creating a space for them to play a part in international judicialization. Under what conditions can they do so? We argue that the answer depends on the relationship between the political and legal constraints national courts face. National courts must be careful to safeguard their independence in the face of potential backlash, but they face constraints in terms of the legal mechanisms available to them when enforcing international law. We focus on the availability of two legal mechanisms: direct effect, under which courts apply treaties directly, setting aside inconsistent domestic laws; and canons of interpretation, under which courts strive to interpret domestic laws in conformity with treaties. We find that the effects of human rights treaty ratification is greater when courts have the canon available to them than it is when courts have direct effect available to them.
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Charney, Jonathan I. "International Criminal Law and the Role of Domestic Courts." American Journal of International Law 95, no. 1 (January 2001): 120–24. http://dx.doi.org/10.2307/2642041.
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Kratochvíl, Jan. "Subsidiarity of Human Rights in Practice: The relationship between the Constitutional Court and Lower Courts in Czechia." Netherlands Quarterly of Human Rights 37, no. 1 (March 2019): 69–84. http://dx.doi.org/10.1177/0924051918820987.
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The principle of subsidiarity is viewed as the cornerstone of the protection of human rights. Internationally, it is primarily the responsibility of states to ensure that human rights are respected and protected on a domestic level and any international protection mechanism is only supplementary. At the domestic level, apex courts in a country also provide only subsidiary protection of human rights, which must first and foremost be protected by lower level courts. Subsidiarity has two facets: the obligation of lower courts to directly apply human rights and the corresponding deference of higher courts to that application. Little attention has been given so far to how domestic subsidiarity of human rights works in practice and how human rights are in fact applied by the primary level of court systems. This article uses Czechia as a case study to test the hypothesis that if lower courts apply human rights, then there is a lower chance that the Constitutional Court, as an apex court, will find a human rights violation in that particular case. By statistical analysis of hundreds of decisions of Czech courts this hypothesis is confirmed. The findings are indicative that subsidiarity actually works in practice.
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RONEN, YAËL. "Silent Enim Leges Inter Arma– but Beware the Background Noise: Domestic Courts as Agents of Development of the Law on the Conduct of Hostilities." Leiden Journal of International Law 26, no. 3 (July 31, 2013): 599–614. http://dx.doi.org/10.1017/s0922156513000265.
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AbstractThis article highlights the challenges to the operation of domestic courts as agents of development of the laws of armed conflict and particularly of the law on the conduct of hostilities. The first part of the article concerns the spillover from various branches of the laws of armed conflict to the law regarding the conduct of hostilities. The second part of the article addresses the structural constraints on domestic courts in deciding issues relating to the laws of armed conflict, focusing on the conflict between their role as guardians of national interests and their judicial commitment to protecting the individual. The cumulative effect of these characteristics of domestic litigation suggests that the laws of armed conflict, and particularly the law on the conduct of hostilities, are not necessarily well served by development through domestic jurisprudence.
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Mance, Lord. "JUSTICIABILITY." International and Comparative Law Quarterly 67, no. 4 (October 2018): 739–57. http://dx.doi.org/10.1017/s0020589318000271.
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AbstractThis article explores traditional conceptions of non-justiciability in British Courts in honour of Francis Mann. It highlights the move by domestic courts away from traditional ‘no-go’ areas towards a more nuanced and balanced understanding of the respective roles and competences of the executive and the judiciary; and sees this as a not unfavourable development in an era when domestic recourse is often the only practicable means by which an individual, as opposed to a State, may obtain redress for alleged misconduct on the international plane.
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Garnett, Richard, and Michael Pryles. "Recognition and Enforcement of Foreign Awards under the New York Convention in Australia and New Zealand." Journal of International Arbitration 25, Issue 6 (December 1, 2008): 899–912. http://dx.doi.org/10.54648/joia2008070.
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This article examines the current status and interpretation of the New York Convention provisions on recognition and enforcement of awards in Australia and New Zealand. While there have been no New Zealand decisions so far, Australian courts have considered a number of important issues including the effect of interim and interlocutory awards, the limitation period applicable to enforcement proceedings, the existence of a residual discretion not to enforce an award, the consequences of misnaming of a party and public policy. While some decisions have been consistent with the Convention’s objectives and purposes, in others courts have arguably relied too heavily on principles of Australian domestic law.
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Haglund, Jillienne. "Domestic Politics and the Effectiveness of Regional Human Rights Courts." International Interactions 46, no. 4 (May 2, 2020): 551–78. http://dx.doi.org/10.1080/03050629.2020.1751624.
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Du Plessis, Izelle. "Double Taxation Treaty Interpretation: Lessons from a Case Down Under." Potchefstroom Electronic Law Journal 23 (December 8, 2020): 1–22. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a6840.
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In the Australian case of Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation (the Bywater case) the Australian High Court dealt with the question of whether certain companies were resident in Australia for income tax purposes. The majority answered this question by applying Australian domestic law. In a separate but concurring judgement, Gordon J also discussed the interpretation and application of the relevant double taxation treaty. This contribution analyses Gordon J's judgment to extract guidance from it for the South African courts on their interpretation of double taxation treaties.
It is submitted that South African courts should also follow the "first step" proposed by Gordon J when interpreting double taxation treaties. South African courts may find Gordon J's judgment "instructive" when dealing with the interpretation of the "place of effective management" concept in both domestic law and double taxation treaties. In his judgment Gordon J favours the goal of common interpretation and it is argued that South African courts should follow this example and explicitly support this notion in applicable cases. From Gordon J's judgment and the judgement in Krok v Commissioner, South African Revenue Service, it is deduced that the positions in South Africa and Australia are similar in that the courts in both countries will be bound by the principles of Articles 31 and 32 of the Vienna Convention on the Law of Treaties when interpreting double taxation treaties. Moreover, Gordon J's judgment indicates that the domestic principles of interpretation should not be used in the interpretation of double taxation treaties. Recent South African cases have suggested that there are no differences between the South African domestic principles of interpretation and those contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. This contribution submits that there are many similarities between the two, but that the rules are not exactly the same. South African courts should be aware of these differences and rather apply the rules of public international law, including those contained in the Vienna Convention on the Law of Treaties, when they interpret double taxation treaties. Gordon J specifically identifies the category of the Vienna Convention on the Law of Treaties in which he places the Commentary on the OECD Model Tax Convention, to rely on it for his interpretation of the relevant double taxation treaty. South African courts may well learn from this approach, to create more certainty in the process of interpreting a double taxation treaty.
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TZANAKOPOULOS, ANTONIOS, and CHRISTIAN J. TAMS. "Introduction: Domestic Courts as Agents of Development of International Law." Leiden Journal of International Law 26, no. 3 (July 31, 2013): 531–40. http://dx.doi.org/10.1017/s0922156513000228.
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AbstractThis introductory paper to the symposium hosted by the Leiden Journal of International Law, and edited by the authors, deals with the function of domestic courts as agents for the development of international law. The paper ‘sets the scene’ for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organizations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic-court decisions on the development of international-law, and introduces the concept of ‘agents’ of international-law development. This is the analytical perspective that the contributions to the symposium adopt.
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Devendra, Isuru. "Inherent Jurisdiction and Implied Power to Stay Proceedings in Aid of Arbitration: A Nice Question." Journal of International Arbitration 32, Issue 5 (October 1, 2015): 493–509. http://dx.doi.org/10.54648/joia2015023.
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In recent years Australia has seen an exponential growth in the use of arbitration. This has necessitated greater involvement by courts in facilitating arbitral proceedings. In this context, one of the issues most frequently encountered by the courts is whether to stay court proceedings in aid of arbitration. This article considers the basis of a court’s power to grant such an order. In doing so, the article explores both the statutory and the inherent jurisdiction of a court, including recent jurisprudence that highlights the uncertainty in the field. The article suggests interpreting domestic arbitration legislation in a manner that is consistent with Australia’s pro-arbitration policy and advocates reconsideration of early High Court authority as to the inherent powers of courts in this area.
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Stewart, David P., and Ingrid B. Wuerth. "Sovereign Immunity as Liminal Space." European Journal of International Law 32, no. 4 (November 1, 2021): 1501–8. http://dx.doi.org/10.1093/ejil/chab101.
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Abstract Questions of foreign state immunity frequently involve the ‘liminal space’ between substance and procedure, between domestic and international law and between the domestic law of the forum states and domestic laws of other states. US courts typically (and rightly) rest their analysis not only upon relevant foreign law and international practice but also upon procedural norms that are not formally part of the Foreign Sovereign Immunities Act. Immunity frequently implicates both the reach and power of domestic courts and the authority, organization and expectations of foreign states. It is unsurprising, therefore, that the domestic procedures of the forum court and the internal laws of both the forum state and the foreign state play significant roles in immunity determinations, although the relative paucity of concrete evidence of state practice can make it very difficult to discern the content of customary international law. ‘Restatements of domestic law’ can play an important role in developing principles of immunity, perhaps especially in the liminal spaces between domestic and foreign, substance and procedure. Hopefully, institutes in other countries will produce works like the Restatement of the Law (Fourth): The Foreign Relations Law of the United States.
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Poggeschi, Giovanni. "Language rights and duties in domestic and european courts." Journal of European Integration 25, no. 3 (September 2003): 207–24. http://dx.doi.org/10.1080/0703633032000133565.
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Guthrie, Robert, and Rebecca Taseff. "Dismissal and Discrimination: Illegal Workers in England and Australia." International Journal of Comparative Labour Law and Industrial Relations 24, Issue 1 (March 1, 2008): 31–60. http://dx.doi.org/10.54648/ijcl2008003.
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Abstract: This paper deals with various topical issues in relation to illegal workers. The legal rights of illegal workers have become an international concern. In this paper two common law countries are examined. The engagement of illegal workers raises a number of delicate employment law and policy issues. This article compares the attitude of the courts in England and Australia in relation to the question of the rights of workers who work contrary to immigration laws (illegal workers). In England, the courts have tended to adopt a traditional approach of not enforcing contracts which are tainted by illegality in relation to cases involving payment of wages and termination of employment. This has often meant that workers employed illegally have no rights to enforce agreements with employers who are a party to the illegal agreement. However, in relation to discrimination cases the English courts have used a number of devices to sidestep this harsh approach, and recently a number of workers who have been engaged illegally have been successful in establishing that their employer has discriminated unlawfully against them. Within the last decade in Australia the picture is even less clear with a mixture of outcomes in relation to cases by workers claiming wages when they have been working illegally. No discrimination cases have emerged in Australia, although this paper speculates that the Australian courts may be receptive to adopting the English approach.
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Treichl, Clemens, and August Reinisch. "Domestic Jurisdiction over International Financial Institutions for Injuries to Project-Affected Individuals." International Organizations Law Review 16, no. 1 (January 7, 2019): 105–36. http://dx.doi.org/10.1163/15723747-01601005.
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Project-affected individuals are increasingly bringing tort claims against international financial institutions in domestic courts. In the US, such plaintiffs such plaintiffs have regularly failed to overcome the obstacle of the defendant institutions’ jurisdictional immunity under the International Organizations Immunities Act. In pending litigation, the US Supreme Court has resolved a long-standing debate as to its scope. This paper examines the issue of jurisdictional immunity in the context of international project finance. It focuses on the specific frameworks established in treaties, analyses the interplay between international and domestic US norms and looks at possible implications of the exercise of domestic jurisdiction. A key finding is that US courts, at least previously, used to grant more extensive immunities than international law required. While doubts persist as to whether domestic courts are a suitable venue for claims brought by project-affected people, existing means of international dispute settlement should be strengthened.
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Evju, Stein. "Application by Domestic Courts of the European Social Charter." Nordic Journal of Human Rights 28, no. 03-04 (May 20, 2011): 401–21. http://dx.doi.org/10.18261/issn1891-814x-2010-03-04-04.
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Harder, Sirko. "STATUTES OF LIMITATION BETWEEN CLASSIFICATION AND RENVOI—AUSTRALIAN AND SOUTH AFRICAN APPROACHES COMPARED." International and Comparative Law Quarterly 60, no. 3 (July 2011): 659–80. http://dx.doi.org/10.1017/s0020589311000261.
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AbstractThis article compares the ways in which Australian and South African courts have approached issues of classification and renvoi where a defendant argues that the action is time-barred. There are two differences in approach. First, Australian courts classify all statutes of limitation as substantive, whereas South African courts distinguish between right-extinguishing statutes (substantive) and merely remedy-barring statutes (procedural). Second, the High Court of Australia has used renvoi in the context of the limitation of actions whereas South African courts have yet to decide on whether to use renvoi. This article assesses the impact of those differences in various situations.
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Lee, Lisa. "A Case From Australia's War Crimes Trials: Lieutenant-General Nishimura, 1950." Deakin Law Review 18, no. 2 (December 1, 2013): 337. http://dx.doi.org/10.21153/dlr2013vol18no2art42.
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In the aftermath of World War II, Australia undertook domestic trials of suspected Japanese war criminals between 1945 and 1951. This article focuses on Australia’s war crimes trial of Lieutenant-General Nishimura as held at the Los Negros court in mid-June 1950, and the subsequent petitioning period and confirmation process. The Australian war crimes courts were military courts vested with broad discretionary powers that facilitated the expeditious trials of accused. The procedure of war crimes courts differed from that of field general courts-martial in two main areas: admissible evidence and sentencing range — and this article highlights concomitant problems arising during the trial and subsequent case on review. This article examines the prosecution of the case entirely on documentary evidence; the impact of low admissibility thresholds for evidence; issues regarding the voluntariness and reliability of witness evidence; and the option of capital punishment in the Nishimura trial.
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Akande, Dapo. "International Law Immunities and the International Criminal Court." American Journal of International Law 98, no. 3 (July 2004): 407–33. http://dx.doi.org/10.2307/3181639.
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The tension between the protection of human rights and the demands of state sovereignty is reflected in the debate on whether state officials should be held responsible in external fora for international crimes committed while in office. This debate involves the interplay between two branches of international law. Firstly, there is the well-established law according immunities to the state and its agents from the jurisdiction of other states (state and diplomatic immunities). This law proceeds from notions of sovereign equality and is aimed at ensuring that states do not unduly interfere with other states and their agents. On the other hand, there are those newer principles of international law that are based on humanitarian values and define certain types of conduct as crimes under international law (international criminal law). One of the challenges in this latter area has been to develop international and national mechanisms by which individuals who commit these crimes may be held responsible. Since states often fail to institute domestic prosecution of their own officials and agents alleged to have committed international crimes, renewed attention has been paid to the possibility of subjecting state agents to prosecution in foreign domestic courts or in international courts. For such prosecution in foreign domestic courts to take place, it will usually have to be shown (1) that those courts have jurisdiction over crimes committed abroad by foreigners against foreigners (i.e..universalorquasi-universal jurisdiction),and (2) that such jurisdiction extends to state agents (i.e., that international law immunities are unavailable). Recent years have seen a significant increase in attempts to institute prosecutions for alleged international crimes in the national courts of states other than that where the acts occurred. However, it has not proved easy to establish the two propositions identified above. Indeed, it has become apparent that the views that states possess universal jurisdiction over international crimes committed abroad and that incumbent and former state officials are subject to foreign domestic prosecution for such crimes are by no means universally held.
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Jupille, Joseph, and James A. Caporaso. "Domesticating discourses: European law, English judges, and political institutions." European Political Science Review 1, no. 2 (July 2009): 205–28. http://dx.doi.org/10.1017/s1755773909000149.
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Political science research on Europeanization has focused too little on the domestic legal-constitutional implications of European legal integration. We address this relative neglect, identifying two models of the impact of European law on domestic judicial discourses and testing them against evidence on the invocation of three EU law concepts within English courts. Contrary to a statist model, which expects judicial discourses to correspond closely with direct importations of European law through the preliminary reference procedure, we find stronger support for an indigenization model in which courts gradually domesticate previously alien concepts. These domesticating discourses offer new insights into domestic political and constitutional orders in the context of European and international legalization.
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May, Christopher. "Book Review: International Relations: Domestic Law Goes Global: Legal Traditions and International Courts." Political Studies Review 11, no. 1 (January 2013): 98–99. http://dx.doi.org/10.1111/1478-9302.12000_40.
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Dodge, William S. "Jurisdiction, State Immunity, and Judgments in the Restatement (Fourth) of US Foreign Relations Law." Chinese Journal of International Law 19, no. 1 (March 1, 2020): 101–35. http://dx.doi.org/10.1093/chinesejil/jmaa004.
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Abstract In 2018, the American Law Institute published the Restatement (Fourth) of Foreign Relations Law, which restates the law of the United States governing jurisdiction, state immunity, and judgments. These issues arise with great frequency in international cases brought in US courts, including cases involving Chinese parties. This article provides an overview of many of the key provisions of the Restatement (Fourth). The article describes the Restatement (Fourth)’s treatment of the customary international law of jurisdiction, as well the rules of US domestic law based on international comity that US courts apply when deciding international cases.
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von Bogdandy, Armin, and Stephan W. Schill. "Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty." Common Market Law Review 48, Issue 5 (October 1, 2011): 1417–53. http://dx.doi.org/10.54648/cola2011057.
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The present article examines the function of the revised identity clause in Article 4(2) TEU. By focusing on the fundamental political and constitutional structures of Member States, Article 4(2) TEU provides a perspective to overcome the idea of absolute primacy of EU law and the underlying assumption of a hierarchical model to understand the relationship between EU law and domestic constitutional law. The revised identity clause in Article 4(2) TEU not only demands respect for national constitutional identity, a notion determined through a close interplay of domestic constitutional law and EU law, but can be understood as permitting domestic constitutional courts to invoke, under certain limited circumstances, constitutional limits to the primacy of EU law. At the same time, Article 4(2) TEU, in tandem with the principle of sincere cooperation contained in Article 4(3) TEU, embeds these constitutional limits into an institutional and procedural framework in which domestic constitutional courts and the Court of Justice interact closely as part of a composite system of constitutional adjudication.
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Motzfeldt Kravik, Andreas. "State Immunity in Norwegian Courts." Nordic Journal of International Law 90, no. 4 (October 12, 2021): 435–45. http://dx.doi.org/10.1163/15718107-90030003.
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Abstract The article seeks to clarify the scope of state immunity in civil proceedings before Norwegian courts based on recent jurisprudence and other sources of law, both domestic and international. While the concept of restrictive state immunity is now widely seen as settled law, determining the boundaries between government and private acts, and thus the precise scope of state immunity, is inherently challenging. The article examines recent Norwegian case law on state immunity, highlighting commonalities and inconsistencies in the jurisprudence, including with respect to the courts’ reliance on the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, which Norway has ratified. The article concludes that the 2004 Convention has, in whole or in part, achieved customary law status and represents a major step forward towards a truly global framework within which national courts can adjudicate state immunity. The article concludes that future cases on state immunity before Norwegian courts should be adjudicated on the basis of the 2004 Convention.
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McCrudden, Christopher. "Why Do National Court Judges Refer to Human Rights Treaties? A Comparative International Law Analysis of CEDAW." American Journal of International Law 109, no. 3 (July 2015): 534–50. http://dx.doi.org/10.5305/amerjintelaw.109.3.0534.
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Comparative international law promises to bring fresh attention to the similarities and differences in how international law is understood and approached at the domestic level. Comparative international human rights law applies this focus to similarities and differences in the ways that international human rights law is, for example, interpreted at the domestic level by courts.
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Cope, Kevin L., and Mila Versteeg. "The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence." American Journal of International Law 111, no. 2 (April 2017): 538–44. http://dx.doi.org/10.1017/ajil.2017.11.
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Aaron, David. "Reconsidering Dualism: The Caribbean Court of Justice and the Growing Influence of Unincorporated Treaties in Domestic Law." Law & Practice of International Courts and Tribunals 6, no. 2 (2007): 233–68. http://dx.doi.org/10.1163/156918507x217594.
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AbstractIn dualist states, international and domestic legal commitments have traditionally existed on entirely separate planes. Despite the evolution of international legal norms since the end of the Second World War, courts in dualist states have continually opposed using international law to interpret domestic legislation. The author suggests that the traditional dualist view, in which international treaty commitments have no domestic effect until incorporated through the dualist state's domestic legislative process, is weakening.This paper begins with an overview of the monist-dualist distinction in international law and explains dualism's approach to the relationship between domestic and international law. The next section of the paper explores traditional dualist jurisprudence on the role of unincorporated treaties in domestic law and explains why judges have clung to a rigid application of dualism. The weakening of this inflexible approach is then examined, culminating in an analysis of the pivotal recent judgment of the Caribbean Court of Justice in Boyce. This paper concludes that dualism is waning, particularly in cases where domestic law falls short of international human rights standards, as courts demonstrate an increased willingness to use unincorporated treaties as interpretive aids when construing and applying domestic law.