Dow v. Attorney-General

This chapter summarises the significance and consequences of nationality in municipal and international law in order to allow conclusions to be drawn about the consequences of current state practice related to multiple-nationality. It separately examines the nationality in international law, and nationality in municipal law, and shows that there are important differences between nationality in municipal law and in international law. For municipal and international law, both the definition of, and rules in relation to, nationality, as well as the consequences of nationality, must be considered. Finally, it is clear from the summary of the rules related to nationality in municipal and international law, and the consequences of nationality in those areas, that nationality is still relevant in very practical terms for both individuals and states.Keywords: current state practice; international law; municipal law; nationality

Environment — Endangered species — Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES) — Control of export of exotic birds — Refusal to grant authority to export on basis of CITES — Arrangement between wildlife authorities of New Zealand and Australia — Whether court empowered to interpret CITES provisions not implemented in domestic law — Whether arrangement between wildlife authorities to be applied by Court — Wildlife Act 1953 — Conservation Act 1987Treaties — Effect in municipal law — Treaty to which State not yet party — Intention to accede — Whether courts in such a State will give effect to treaty — Proceedings for judicial review — The law of New Zealand

The article examines the interrelationship between the constitutional identity of Lithuania and human rights protection. It is maintained that this interrelationship is apparent through two key aspects. First and foremost, respect for innate human rights in itself constitutes an inseparable part of the Lithuanian constitutional identity. Although the Constitutional Court has not so far directly expressed its position concerning the Lithuanian constitutional identity, the category of fundamental constitutional values, singled out by the Constitutional Court in its decision of 19 December 2012 and ruling of 24 January 2014, is very important in this respect. This category comprises values consolidated in Articles 1 and 18 of the Constitution, such as the independence of the state, democracy, the republican form of government, and the innate nature of human rights and freedoms. These values are indivisible from the Lithuanian constitutional identity, since creating and fostering an independent and democratic state that respects innate human rights is a Lithuanian historical and constitutional tradition. This tradition derives from the fundamental acts of the independence of the state, i.e. the Act of Independence of 16 February of 1918, the Declaration of the Council of the Movement of the Struggle for Freedom of Lithuania, which was adopted in 1949 at the time of the occupation, and the Act of 11 March 1990. This is reflected in the first democratic Constitution of the State of 1922 and is consolidated in the current Constitution. In view of the historically consistent obligation to respect innate human rights, it can be stated that the protection of these rights has become a particular metanorm, expressing the essence of the Constitution as a social contract and supreme law. This is especially evident from the doctrine formulated by the Constitution Court regarding the constitutionality of constitutional amendments in the rulings of 24 January 2014 and 11 July. In its ruling of 11 July 2014, the Constitutional Court held that it is not permitted to adopt any such constitutional amendments that would destroy the innate nature of human rights and freedoms, democracy, or the independence of the state. Consolidating the recognition of the innate nature of human rights, Article 18 of the Constitution formally belongs to those provisions of the Constitution that are subject to the general constitutional amendment procedure. However, taking into account an intrinsic relationship between democracy and respect for innate human rights, the Constitutional Court ranked the innate nature of human rights and freedoms, along with the independence of the state and democracy, as unamendable or “eternal” constitutional provisions. Thus, the innate nature of human rights, as a universal value constituting one of the fundamental elements of the Lithuanian constitutional identity, is under the highest-level constitutional protection. The second aspect revealing the interrelationship between the constitutional identity and human rights protection is the influence of other elements of the constitutional identity on the constitutional standards of human rights protection. In the formation of the official doctrine on human rights protection, the Constitutional Court places considerable importance on the idea of a democratic state under the rule of law. Other elements of the Lithuanian constitutional identity, in particular the principle of respect for international law and the principle of the geopolitical orientation of the state, are also particularly significant for the constitutional protection of human rights. The principle of respect for international law (pacta sunt servanda), as entrenched in Article 135(1) of the Constitution, implies the obligation of the State of Lithuania to comply with the norms of international treaties and customary international law, including the area of human rights. The principle of the geopolitical orientation of the state likewise guides towards openness to international human rights obligations. This principle implies Lithuania’s membership in the European Union and NATO, as well as the necessity to fulfil the related international obligations. The principle of geopolitical orientation, which is underpinned by common values shared by Lithuania with democratic Western states, similarly provides a value-based guidance in assuming international obligations and presumes the necessity to pay regard to the European standards of human rights protection and tendencies in their development. In this context, special importance also falls on the principle of an open civil society, which means that Lithuanian society is open to the international community and tendencies in the development of international law. The self-isolation of the state or disregard for international standards of human rights protection would be incompatible with the principle of an open civil society.

This article explores aspects of Australia’s ratification of the ICC Statute and implementation into its domestic law. In particular, it explores the manner in which international treaty law is implemented and applied in Australia. It emphasises the unsatisfactory nature of Australia’s compliance with important international law undertakings, and how this might reflect on its obligations to cooperate with the ICC. It then reflects on the methodology by which Australia has implemented its obligations and the crimes under the ICC Statute into domestic law. One issue that is considered is the choice taken to virtually codify all elements of the crimes enumerated, instead of adopting the elements set out in the Statute in a more general way, and whether this might give rise to unfortunate conflicts in law, particularly regarding the applicability of Australian criminal-law provisions to crimes characterized and interpreted under international law. The article does not seek to deal exhaustively with Australia’s incorporation of its obligations under the ICC Statute. Rather, it deals selectively with some of these issues in the context of its relationship with its international obligations.

India has traditionally been described as a dualist country in relation to its engagement with international law. Formally at least, the allocation of the power of assumption of international obligations rests with the Executive, while its domestic implementation requires Parliamentary sanction. In this paper, I argue that while India remains formally committed to dualism, in practice it exhibits many monist tendencies. Once international law obligations are assumed, they are transported into domestic law through various channels, not all of which require Parliamentary approval. Further, the Indian judiciary also applies non-domesticated international law obligations in various ways that reflect shades of monism. I argue that this departure from dualism is problematic since it removes much needed Parliamentary scrutiny, and results in a lack of executive accountability, erosion of federalism, the loss of value of legal pluralism, and the amplification of international law’s democratic deficits.

Chapter 4 turns to the domestic law of the countries of Europe, arguing that the combination within European public law of EU law, the law of the ECHR, and of domestic law cannot be conceived of along the lines of a pyramidal hierarchy. The chapter examines the ways in which the different European domestic legal systems conceive of the relationship between international law and domestic law. The chapter then looks at the relationship between international law and domestic law through a constitutional lens, an approach which more and more domestic courts in Europe seem to be adopting. The chapter then turns to the integrated legal order of the European Union, a legal order distinct both from domestic and general international law. Finally, the chapter teases out and analyses four shared guiding principles of European public law: equality and non-discrimination; proportionality; subsidiarity; and legal certainty.

233Treaties — Effect in municipal law — EEC Treaty, 1957 — French Constitution, Article 55 — Legislation enacted by EEC institutions — Status under municipal law — Decisions and regulations — Primacy over conflicting provisions of earlier municipal lawRelationship of international law and municipal law — Treaties — Effect in municipal law — EEC Treaty, 1957 — Nature of legal order established by Treaty — Supremacy over national lawInternational organizations — Legal status — Powers — European Economic Community — Regulations enacted by EEC institutions — Whether taking precedence over municipal law — The law of France

The legal personality (or capacity) is an attribute that can belong to the participators in international relations. It divides all the members of international society into two groups. First of them consists of entities, that enjoy the legal personality - we describe them as subjects of international law. In this group belong states, intergovernmental organisations (so called IGOs) and a group of various other units, e.g. The Holy See or the Sovereign Order of Malta. The second group is composed from the entities without legal personality under international law. Here we could find wide group of non-governmental organisations and strong supranational corporations. They may possess significant political power and heavily influence deciding of the states and intergovernmental organisations, they may have legal personality under municipal law but they do not enjoy the legal personality under the international public law. The legal personality is defined as possessing rights and duties enforceable at law. It means, that the subject under international law can conclude agreements, can enter into diplomatic relations (enjoys so called right of legation), can submit claims and act before international court or judge, has right to enjoy immunities for itself and for its representatives, can become a member of international organisation or become a party of international convention and also has to hold the responsibility for own unlawful actions. International organisations, as a subject of international law, enjoy the legal personality different from the personality of member states. There is no doubt about the legal personality of European Communities. Every of the three charters founding the European Coal and Steal Community, European Community and Euroatom includes explicit provision, that the founded organisation enjoys legal personality. Looking at the Maastricht and as well at the Amsterdam treaty, we cannot find any smilar provision concerning the legal personality of European Union. The issue of whether the Union has legal personality is disputed. The prevailing view is been that it was not the will of the member states to give the Union legal personality. Expert opinion generally maintains that an international organisation such as the European Union doesn't have the legal personality unless its founders confer such personality on it expressly. In contradistinction to the original treaties about Communities the member states in Maastricht treaty did not acknowledged the personality of Union. Article 24 and 38 of the Treaty of the European Union (added by the Treaty of Amsterdam) give the Council of the European Union the capacity to conclude international agreements. But this competence is strictly limited only on areas covered by the Common Foreign and Security Policy and Police and Judicial Cooperation in Criminal Matters and only when it is necessary to implement those titles. The legal effects of such agreement apply only on member states individually and according to the terms and conditions laid down by national law. Regarding this provision the European Union must be seen as a Union of States without legal personality of its own under international public or domestic law, which, when it takes action at international level, does so on the behalf of the member states on not on his own account. The question of legal personality was comprehensively researched by the European Convention. There was created a working group on legal personality. The group examined the matter closely and for the purpose heard the views of a number of experts. In the final report that was brought into open in October 2002 the working group recommended conferring explicit legal personality on the Union. The single legal personality, according to the opinion of working group, should replace the existing legal personalities. The question of legal personality was one of the simple issues discussed by Convention. The working group on legal personality has finished its search quite early (comparing with other working groups) and the final report was established on broad consensus.

International Law & State Corporatism

The Constitution of the ROC contains a Bill of Rights Chapter which requires the fundamental rights of the people to be protected. Since it was drafted seven decades ago, an important issue arises concerning whether and how to keep the Bill of Rights in line with the development of international human rights treaties and practices. In this chapter of the book, the author argues for the desirability and importance of ensuring a living constitution for the Republic by incorporating international human rights treaties and practices into the decisions made by the Constitutional Court. The author suggests that the fundamental interpretative method of relying on textual interpretation should be employed to look for the appropriate ordinary meaning of the constitutional text. But the “ordinary meaning” should not be the “ordinary meaning” at the time when the Constitution was adopted. Instead, it should be the “ordinary meaning” at the time when a provision is interpreted; it should evolve by taking into consideration the development of international human rights treaties and practices. This approach would be more in line with the duty entrusted by the Constitution to the Court to “interpret the Constitution” and also in line with the desirability that the constitutional provisions will not become obsolete.

Extracurricular International Criminal Law

Asylum is widely associated with humanitarian norms and domestic laws in liberal democracies. Reflecting this assumption, systematic information on the evolution of asylum provisions in national constitutions remains limited, and comparative analyses of the motives behind the legal codification of refugee protection in autocracies are even scarcer. This research note addresses these gaps by introducing the Constitutional Asylum (COAS) dataset, which captures asylum provisions in the constitutions of all 193 UN member states from 1789 to 2023. The findings challenge conventional wisdom, revealing that autocracies, not democracies, have been the main adopters of constitutional asylum. While both regime types have used constitutional asylum to spread ideologies abroad, autocracies have done so more extensively and additionally leveraged it to strengthen presidential power. These results show that asylum is not merely a humanitarian norm but also a strategic instrument of statecraft, used to consolidate power within states and advance geopolitical agendas abroad.

Lawyering for Social Change: The Power of the Narrative in Domestic Violence Law Reform

There is a growing consensus that domestic and international trademark laws must be revised to better protect the right to freedom of expression. This paper argues that governments and free speech advocates should currently focus their efforts on developing a global “soft law” instrument that contains specific, speech-protective model trademark laws that clarify how nations can protect expressive interests in domestic trademark laws without violating their international obligations to protect trademarks. The goal would be to encourage decision-makers to consider how the unreasonable expansion of trademark protection can harm the public interest, and provide governments with the tools to reconcile trademark rights and free expression in their domestic trademark legislation, regulations, and litigation. Nations would have the flexibility to experiment and select which speech-friendly trademark reforms work best given their domestic law and culture. Experimentation is better than harmonization in this area until more countries agree on whether and how to protect expressive interests in trademark law. After providing some background regarding the increasing conflict between trademark rights and free expression, this paper demonstrates how the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Paris Convention for the Protection of Industrial Property allow member states to protect expression in their trademark laws. It also sets forth a framework for the development of speech-protective model trademark laws relating to what is protectable subject matter in trademark law, the scope of rights, defenses, remedies, and secondary trademark liability. These guidelines could provide a useful menu of options for legislators, trademark offices, and courts trying to balance the various rights and interests in trademark law.

Treaties — Effect in municipal law — Priority of treaty provisions over conflicting provisions of municipal law — French Constitution, Article 55 — Additional Protocol No. 1 to European Convention on Human Rights, 1950, Article 3 — Competence of Constitutional Council when acting as an electoral court — Whether empowered to examine the compatibility of a municipal statute with an international conventionRelationship of international law and municipal law — Treaties — Effect in municipal law — Additional Protocol No. 1 to European Convention on Human Rights, 1950 — 497Priority of treaty provisions over conflicting municipal law — The law of France