作为宪法解释的国际法.pdf

THE UNIVERISITY OF MELBOURNE
FACULTY OF LAW
Public Law and Legal Theory
Research Paper No. 33


2002


INTERNATIONAL LAW AS A TOOL OF
CONSTITUTIONAL INTERPRETATION


Kristen Walker




This paper can be downloaded without charge from the
Social Science work Electronic Library at:
/abstract_id=319921
INTERNATIONAL LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION
Kristen Walker*

INTRODUCTION
In a series of judgments in the past five years Justice Kirby has developed an
interpretive principle concerning the use of international law in constitutional
interpretation. He has adapted the words of Brennan J in Mabo v Queensland [No
2]1 to formulate the proposition that:
mon law, and constitutional law, do not necessarily conform with
international law. However, international law is a legitimate and important
influence on the development of mon law and constitutional law,
especially when international law declares the existence of universal and
fundamental

So far, he is very much alone in his endeavour, though as Kirby J himself has noted,
"today's heresies sometimes e tomorrow's orthodoxy".3

In this paper I will explain and assess Kirby J's interpretive principle. I shall argue
that international law should, as Kirby J asserts, be considered a legitimate influence
on constitutional interpretation. I also argue that Kirby J's approach is not entirely
new, as there is support for the use of international law in constitutional interpretation

* BSc LLB(Hons) LLM (Melb), LLM (Columbia). Senior Lecturer in Law, The University of Melbourne.
I would like to thank Simona Gory for research assistance; all errors remain my own. A version of this
paper was presented at the Public Law Weekend, ANU Law School, 2 November 2001.
1 Mabo v Queensland [No 2] (1992) 175 CLR 1, 42.
2 Newcrest Mining (WA) v monwealth (1997) 190 CLR 513, 657. And see Kartinyeri v The
Commonwealth (