Is There Anything To Fear in Transnationalist Development of Law? The Australian Experience

Abstract

The recent decisions by the United States Supreme Court concerning the Guantanamo Bay detainees and the application of capital punishment to minors 2 have instigated renewed debate about the appropriateness of using international law or transnational legal developments as guidance in determining domestic United States law. Various Justices of the United States Supreme Court have in recent years indicated that they are not completely receptive to the use of international material in determining domestic law; however, a consideration of cases from the British Commonwealth concerning the extent of the territorial application of the writ of habeas corpus as assistance in determining whether the writ should apply to non-United States citizens detained in Guantanamo Bay and reference to international opinion relating to the imposition of capital punishment on juveniles may indicate that transnationalism is having a growing influence in United States jurisprudence.