International Law in Constitutional Interpretation: A Theoretical Perspective

Domestic courts have greater access than ever before to a wealth of international legal materials in a world with a plethora of international laws and courts. In this context, the question of what role international law should play in Australian constitutional interpretation is an important issue. This article explores the dilemma from a theoretical perspective, drawing on a distinction between the reliance on international law as a source of ideas, on the one hand, and reliance on international law purely because of its status as international law, on the other. It is argued that international law can be used legitimately as a source of ideas, and may have a limited role as a moral yardstick for considering public values where the Constitution requires examination of community standards. In all other situations, the author argues, the role of international law in constitutional interpretation should be carefully confined.