Seminar: "Interface between constitutional and international public law"

26 August 2019

On 26 August, ConTransNet convened a small seminar bringing together constitutional law and international public law experts at Melbourne Law School (MLS) to initiate the first in a series of conversations on where, how and with what consequences the perspectives of international law and (comparative) constitutional law overlap. Participants included globally recognized scholars from both disciplines, including Professor Gerry Simpson, who currently holds a Chair in Public International Law at London School of Economics and is currently visiting MLS to teach a Masters subject on International Law and International Relations (2019).

The seminar sought to explore whether there should and can be a “meeting of the minds” between international lawyers and domestic constitutional lawyers, and if so, in relation to what issues or areas of work. At a practical level, participants were keen to examine how such a discussion could more practically inform both their academic research and their ongoing work with other stakeholders, such as the United Nations.

The agenda for the discussion is provided below. Participants committed to work together to organise a follow-up seminar in the coming months.

1.  Differences in mindset and approach.  And how this impacts different areas. 

  • A.  Problems of a domestic mindset for international law.   Discussion: International adjudication. Example: potential problem in ICC judges applying domestic approaches/understandings of due process rights for criminal prosecution.  
  • B.  Problems of an international mindset for domestic constitutional law.  Example: International involvement in constitution-making.  For instance, potential problem when UN champions best practices/institutions in national constitutions even if they prove to be impractical, ineffective, or problematic on the ground.

2.  Conflicts between international human rights law and constitutional law.  

  • A.  Conflicts between international courts and domestic constitutional courts.  Example: How are domestic courts responding to international human rights law (particularly at the regional level as expounded by European Court on Human Rights / Inter-American Court on Human Rights)?  For instance, potential problem as constitutional identity doctrine arises to solve these conflicts. 
  • B.  Institutional conflict.  Example: Interaction between peace agreements and international law.   For instance, potential problematic role of the ICC threat to prosecute in relation to the Colombian peace process/amnesty.