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The Culture of International Arbitration and the Evolution of Contract Law.

Joshua Karton The Culture of International Arbitration and the Evolution of Contract Law (Oxford University Press, 2013), ISBN 978-0199658008, 296 pages

Introduction

Joshua Karton's The Culture of International Arbitration and the Evolution of Contract Taw offers a key to the one of the world's most elusive and lucrative areas of legal practice; international commercial arbitration. International commercial arbitration is a private and confidential dispute resolution method for contract disputes between international parties whose national jurisdictions are signatories to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. (1) Although myriad international arbitration practitioner treatises and scholarly articles already exist on the theory and practice of international commercial arbitration, Joshua Karton's treatise, The Culture of International Arbitration and the Evolution of Contract Taw, is one of the first comprehensive interdisciplinary works of research in this field since Dezalay and Garth's pioneering 1996 study of international arbitrators, Dealing in Virtue. (2) However both Karton's treatise and that by Dezalay and Garth do not purport to elucidate upon trends and developments in the related realm of investment treaty-based forms of international arbitration.

In The Culture of International Arbitration and the Evolution of Contract Law, Karton undertakes a careful socio-legal study of the way in which international arbitrators approach their task of hearing, interpreting and determining private international commercial contract disputes. Karton does this in order to devise a theory for the evolution of a distinct cultural trend in contract law interpretation, which he argues is discernibly emerging in international commercial arbitration. What makes this theory important and provocative is that it suggests that a distinct cultural trend in contract law is emerging and evolving through arbitrator awards, which is divergent from the contract law jurisprudence of national judiciaries. In the absence of a doctrine of stare decisis under precedent in international commercial arbitration arbitral awards, Karton argues cogently that an observable trend is nevertheless discernible in an identifiable cultural approach to decision-making being adopted by international arbitrators presiding over arbitral disputes. If Karton's argument is valid, it has significant implications for the entire field of international commercial arbitration, particularly for commercial party users who try to control the process through the selection and nomination of preferred arbitrators, as well as for lawyers who represent international parties in contract disputes.

As international commercial arbitration is a highly private and confidential method of dispute resolution, where the public cannot watch proceedings and arbitral awards are unpublished (or redacted and edited by international arbitral institutions when published), if distinct cultural decision-making trends are emerging and continuing to evolve in this field, they affect international commercial arbitration's reputation for predictability and certainty. This is because Karton's theory effectively challenges the utility of the international arbitration community's ongoing preoccupation with the selection and appointment of a small pool of international arbitrators based on a perceived, but perhaps imagined, desire for a 'safe pair of hands' in the perpetual pursuit of predictability and certainty of an arbitral dispute's final award and outcome. (3)

Readership and Impact

Karton's treatise is a monograph which he originally completed as a doctoral thesis at the University of Cambridge in 2010. The treatise has utility for ongoing further academic research in international arbitration while being a practical aid for international arbitrators, external legal counsel and in-house counsel presently working in the field. The readership that will perhaps find this treatise the most illuminating and therefore useful includes research academics, students, and legal practitioners who are presently outside the field of international arbitration but who wish better to understand its inner sanctum in order to access it. Karton's treatise thus offers important insights for scholars in academic disciplines beyond international arbitration such as: legal history, legal ethics, sociology, economics and business.

With regard to the disciplines of history and sociology as examples, the treatise's utility lies in its engagement of concepts of social norms and sociological research theory to understand the way in which international arbitration emerged and developed as a dispute resolution method in merchant history. Although Karton's discussion of international arbitration's history is not comprehensive, as Hale (4) rightly acknowledges, apart from the few scholarly arbitration history works by scholars such as Roebuck, (5) there is presently no comprehensive historical account of international arbitration.

The economics and business research value of Karton's treatise lies in its use of the empirical research method of Grounded Theory to analyse critically those few published international arbitral awards which have been published, to show how commercial market factors directly impact upon the selection, nomination and appointment of international arbitrators. The main commercial factor is the market competition that occurs between arbitrators, who effectively compete for appointments by cultivating symbolic capital through generating reputations of 'virtue' (referring back to Dezalay and Garth's seminal study). Such reputations are fostered and promulgated by writing text books, presenting conference papers, publishing articles or gaining lectureship positions on law faculties while frequenting the international arbitration social circuit. The unique contribution that Karton's analysis makes on this point, however, is that these commercial factors are an integral part of international arbitration's culture which directly impacts upon and thereby influences the way in which arbitrators think, manage the arbitral process and decide awards.

The argument that non-legal cultural factors influence arbitrator behaviour also has implications for the convention of party autonomy in international arbitration, regarding the level of certainty and predictability that commercial parties seek to achieve through choice of law clauses in commercial contracts. This same argument has implications for the convention of party autonomy pertaining to the certainty and predictability parties try to achieve through arbitrator selection, nomination and appointment. Despite purported preferences for international arbitration over all other international dispute resolution methods, (6) Karton points out that international commercial arbitration can still be 'a gamble'. (7) Although not couched in terms of 'legal ethics,' Karton's treatise here potentially offers the first source for legal ethics research in international arbitration that emanates from arbitral jurisprudence itself--rather than from the adversarial procedural paradigm of legal professional conduct. Howarth has rightly identified that legal professional discourse has room for evolution, as much of it is still rooted in the paradigm of lawyers as litigation adversaries in courts. (8) Howarth has explained that a more up-to-date paradigm for what most lawyers really do today can be sustained by comparing the lawyer function with that of engineers who create solutions to problems. This potentially changes the entire scope of legal ethics, if the work of lawyers is compared to the work of engineers. (9) Howarth's view arguably supports an argument for a lacuna in legal ethics scholarship in international arbitration which is predominantly engaged in critiques of the behaviour and regulation of legal counsel and arbitrator conduct in different settings in the arbitral process. (10)

Karton's treatise begins to address this gap by focusing on the way in which cultural norms affect how international arbitrators think and deliberate. In other words, The Culture of International Arbitration and the Evolution of Contract Law is effectively a clear statement on the legal ethics of international arbitrators, bearing in mind their function is a largely commercial activity of devising solutions for the problems of international commercial contract disputes. This treatise does this by highlighting how cross-cultural influences impact on international arbitrators whose normative allegiance to the convention of party-autonomy in international commercial arbitration motivates them to let the disputing parties decide what external factors ought to be introduced into and used in an arbitration to interpret the contract in dispute. (11) This is because while aspects of objective common law interpretation do occur in international commercial arbitration, the cultural predominance of arbitrator deference to party autonomy tends to allow the parties subjectively to develop and control what facts and evidence of the dispute are brought before an arbitral tribunal, thus indicating the potential dominance of a civil law-oriented international commercial arbitration culture because 'subjective interpretation follows as a near-inevitable consequence'. (12)

Karton's treatise also responds to a significant critical analysis gap in private international commercial arbitration scholarship. As Roberts has identified, although much research literature exists and persists in the paradigm of public investment treaty arbitration, far more attention needs to be paid to private international commercial arbitration. (13) The majority of past, present and future academic research scholarship, both within and outside international arbitration, is heavily preoccupied with public investorstate treaty-based forms of international arbitration, which gives rise to the need for more analysis of the private sphere. (14) Private international commercial arbitration apparently accounts for around 95 per cent of the entire international arbitration market, (15) and could be said therefore to have a far greater direct and indirect public policy impact than public investment treaty-based forms of arbitration in the facilitation of international trade in the global economy. (16)

This need for more critical scholarship about private international commercial arbitration also arises because the broader private international law paradigm in which it sits is predominantly focused on the settlement of disputes, rather than the creation of law. (17) The Culture of International Arbitration and the Evolution of Contract Law directly addresses this very question about the creation of law in the realm of private international dispute settlement. In so doing, the treatise lays the foundation for examining the duty of international arbitrators to adhere to and apply the law that was chosen by the parties through the insertion of choice of law clauses into the contract that is the subject of the arbitral dispute. Karton's treatise also complements the emerging body of scholarship which is highlighting the confluence and impact of public international law paradigms on the private international law sphere. (18)

Theory and Research Method

The March 2013 publication of this insightful treatise put an immediate end to claims within the international arbitration academy, originally made shortly before its release, that international arbitration scholarship has failed to undertake interdisciplinary research via socio-legal and other methods, and/or engage with developments in international legal and non-legal scholarship. (19) In fact this treatise does just this by undertaking a well-executed hermeneutic analysis of salient aspects of international private law instruments such as the UNIDROIT Principles and the United Nations Commission on International Trade Taw on International Commercial Arbitration in conjunction with probing discussion of relevant arbitral institution rules and published arbitral awards, national statutes and common law.

The main theory of this treatise is that the culture of international commercial arbitration is such that arbitrators will interpret commercial contracts in a way that is different from the jurisprudence of contract law interpretation and application by national court judges, regardless of the choice of applicable substantive private national law. Karton constructs this theory by undertaking a combined doctrinal and socio-legal empirical analysis of the culture of international commercial arbitration and international arbitrators. In a select case study, he examines the few available published arbitral awards and conducts a range of qualitative anonymous interviews. Karton concludes that international arbitrators trend toward adopting a civil law approach in the management of arbitral procedure and the interpretation of contracts, irrespective of whether their education and training background is from a civil or common law tradition. Without intending to suggest this contributes to the troublesome spectre of bias allegations that plague public investment treaty arbitration, Karton explains how market-based forces and the operation of the convention of party autonomy in international commercial arbitration see international arbitrators deferring to party needs and preferences in a way that national judges do not.

Karton's analysis contributes to a theory of arbitral decision-making that explains the emergence of new substantive and procedural laws in international commercial arbitration which are important for legal practitioners. It: 'provides a basis on which to predict what those new rules will be and how transnational legal instruments will change over time'. (20)

Karton uses Glaser and Strauss' 'Grounded Theory' research method to discern the emergence of a culture in international commercial arbitration by examining arbitral laws, published arbitral awards, empirical research surveys and anonymous interviews with international arbitrators. Rather than imposing a research theory upon a field of study and interpreting the data through the theory, the Grounded Theory approach involves developing a theory 'from the ground' by allowing it to emerge from the data itself. (21) This method allows Karton to develop his theory of a culture of international commercial arbitration and contract law evolution which he does in two main sections.

The first section (three chapters) lays the foundation for a cultural theory of international arbitral decision-making, the norms arising from the institutional structure of international commercial arbitration and the importance of culture, social norms and values in the competitive marketplace of this field. The second section (four chapters) explores the research method more definitively by exploring the emergence of a cultural trend in international arbitrator decision-making in the context of two case studies; the first being the interpretation and determination of disputes which involved the remedy of 'Suspension of Performance'. The second explores how international arbitrators interpret contracts in their approaches to the exclusion of extrinsic evidence. Both case studies are jurisdictionally comparative, juxtaposing common law and civil law judicial approaches of various nations with the outcomes of published arbitral awards in international commercial arbitration.

The findings of the first case study are difficult to summarise into a neat form of quasi ratio. Acknowledging that there is no uniform convergence of approach to the principles for the remedy of Suspension of Performance at private international law or within the myriad rules of international commercial arbitration, Karton finds that arbitrators are motivated by service business norms and remedies that are intuitive, proportional and economically efficient, (22) especially where the governing law contains a duty of good faith. (23) The second case study is more definitive, finding that arbitrators adopt a civil law approach to the inclusion of extrinsic evidence for contract interpretation. (24) This is arguably owing to market competition factors operating in arbitrator selection, nomination and appointment, which influence arbitrators to defer to party wishes through party autonomy as a social norm. (25)

Criticisms

Some of the potential criticisms of this treatise were anticipated by Karton and addressed within it. However, criticisms are valid and potentially limit the utility of the treatise as an aide to practice. The main criticism is owed in large part to the obstacles the scholarly study of international commercial arbitration faces, due to its highly private and confidential nature. International arbitrator awards are largely unpublished and, when they are released, this usually only occurs after arbitral institutions have selectively edited so that all arbitrator and party identities are removed and censored, along with any facts that would allow parties to be inadvertently identified by outsiders to the dispute. (26)

It follows that an inevitable Catch-22 criticism is that the low number of published awards means those awards which are reviewed and relied on in this treatise are insufficient in number to devise a testable theory about a genuinely discernible cultural trend among all arbitrators. Karton's response to such criticism is that this is a theory yet to be proved or disproved, which will no doubt occur as more arbitral institutions around the world begin autonomously to publish redacted arbitral awards. The theory is a rudder for the ongoing monitoring of the evolution of any cultural trend in international commercial arbitration. (27) However this potential criticism is important and cannot be entirely dismissed as the utility of such cultural trends are necessarily limited in practical value by virtue of the small number of awards available for scrutiny. Others might argue that any discernible cultural trend is limited to the demographics of the arbitrators who were anonymously interviewed for this research, or that it might be attributed pardy to the culture of the arbitral institutions that have a hand in selective publication, editing and award redaction.

Karton's view is that the published writings of arbitrators and their awards still reflect the values of international arbitrators as an identifiable group of the same international players, and thereby their awards manifest their culture. Karton does concede there are limitations in his study and it is necessarily qualitative rather than quantitative. Even if not statistically useful, the treatise's use of arbitral award data and the use of Grounded Theory for its analysis produces results which are theoretically useful for the purpose of more accurately predicting the behaviour and thinking of other arbitrators, placed under the same commercial market incentives that impact a dispute's outcome and final award. (28)

Another potential criticism is that a theory about international commercial arbitration cannot be discerned at all, because arbitral award outcomes largely depend upon the relationship between the arbitrators and the legal counsel appearing in arbitral proceedings. (29) However the treatise's theory about how arbitrators think and determine contract disputes supports the suggestion that when preparing for a hearing, legal counsel should be ready for an arbitral tribunal potentially adopting a civil law approach. (30)

Conclusion

The empirical approach of Karton's treatise ensures its multiple utility as an international arbitration academic teaching course text, a guidebook for newcomer practitioners and a comprehensive source for researchers within and outside international arbitration. Although traditionally positivist doctrinal articles and texts are being produced with a much narrower focus on the state of international arbitration legislative machinery in jurisdictions such as Australia, (31) The Culture of International Arbitration and the Involution of Contract Taw has a much broader scope in that it provides a robustly independent transnational critical assessment of the state of international commercial arbitration jurisprudence from a practical insider/outsider perspective. The treatise's other utility derives from its aims to achieve a balanced socio-legal reflexive perspective, owing to the private and confidential nature of international commercial arbitration as a field that cannot be studied and discussed without recognition of the way its emerging jurisprudence is substantially affected by the psychological heuristics of international arbitrators. (32)

The Culture of International Arbitration and the Evolution of Contract Taw is anticipated to become a leading scholarly work for the field of international commercial arbitration because it manages to deconstruct an extremely complex and elusive topic to make it accessible, discernible and highly engaging for both those who are already within the field, and importantly for those presently outside of it. It is the very culture of international commercial arbitration itself, and the private and confidential nature by which it operates, which make the field highly exclusive and elusive. In uncovering a cultural trend in international arbitrator decision-making by theorising about the evolution of a distinct contract law approach, Karton's treatise offers a key for all newcomers standing on the outside of a locked door to international arbitration, who now wish to enter.

MAGDALENE D'SILVA, BA/LLB (Tas) 1.1.M (Syd) MA (Lond) Solicitor (non-practising) of the Supreme Courts of NSW, England and Wales, the High Court of Australia, and Barrister and Solicitor (non-practising) of the Supreme Court of Tasmania.. (1) Opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959).

(2) Yves Dezalay and Bryant G Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press, 1996).

(3) Joshua Karton, The Culture of International Arbitration and the Evolution of Contract Law (Oxford University Press, 2013) 60.

(4) Thomas Hale, The Rule Law in the Global Economy: Explaining Institutional Diversity in Commercial Dispute Resolution (PhD thesis, Department of Politics, Princeton University, 2012) 10.

(5) Derek Roebuck, 'Sources for the History of Arbitration' (1998) 14 Arbitration International 237.

(6) In a 2013 survey, 52 per cent of corporate in-house counsel are reported to have said they preferred international arbitration over other methods of dispute resolution: Pricewaterhouse Coopers, 'Corporate Choices in International Arbitration: Industry Perspectives' (2013) 6 <http://www.pwc.com/gx/en/arbitration- disputeresolution/assets/pwc-intemational-arbitration-study.pdf.

(7) Karton, above n 3, 8.

(8) David Howarth, Law As Engineering: Thinking About What Lawyers Do (Elgar, 2013) 21.

(9) Ibid 97.

(10) See, eg, Catherine Rogers, 'The Ethics of Advocacy' in Doak Bishop and Edward G Kehoe (eds), The Art of Advocacy in International Arbitration (Juris, 2nd ed, 2010); Catherine Rogers, The Ethics of International Arbitrators', in Lawrence W Newman and Richard D Hill (eds), The leading Arbitrators' Guide to International Arbitration (Juris, 2nd ed, 2008); Catherine Rogers, 'Regulating International Arbitrators: A Functional Approach to Developing Standards of Conduct' (2005) 41 Stanford International Law Review 53; Catherine Rogers, 'Fit and Function in Legal Ethics: Developing a Code of Attorney Conduct for International Arbitration' (2002) 23 Michigan International Law journal 341.

(11) Karton, above n 3, 233.

(12) Ibid 234.

(13) Anthea Roberts, 'Clash of Paradigms: Actors and Analogies Shaping The Investment Treaty System' (2013) 107 American Society of International Law 45, 87.

(14) Ibid.

(15) Pricewaterhouse Coopers 'International Arbitration: Corporation Attitudes and Practices' (2008) 3 <http://www.pwc.co.uk/en_UK/uk/assets/pdf/pwc-intemational-arbitration-2008.pdf>.

(16) Karton, above n 3, 8, 99-114.

(17) Roberts above n 13, 62.

(18) Alex Mills, 'The Confluence of Public and Private International Law' (Cambridge University Press, 2009); Alex Mills, 'Antimonies of Public and Private At The Foundations of International Investment Law and Arbitration' (2011) 14 Journal of International Economic Law 469.

(19) See, eg, Stavros Brekoulakis, 'International Arbitration Scholarship and the Concept of Arbitration Law' (2013) 36 Fordham International Law Journal 745.

(20) Karton, above n 3, 240.

(21) Ibid 28.

(22) Ibid 193.

(23) Ibid 194.

(24) Ibid 233-4.

(25) Ibid 84-94.

(26) See Joshua Karton, 'Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards' (2012) 28 Arbitration International 447.

(27) For example, the redacted publication of all arbitral awards is now mandated under the 2010 international arbitration rules of the Milan Chamber of Arbitration and the 2013 rules of the Singapore International Arbitration Centre. The International Chamber of Commerce ('ICC5) in Paris has published arbitral awards for many years, but engages its own method for the selection arbitral awards that are edited and revised before publication. In fact, one of the services the ICC is renowned for offering user parties, is reviewing awards penned by arbitrators and sending them back to arbitrators to revise and rewrite, (for the purpose of ensuring the award's enforceability in the jurisdiction where the claimant will seek its enforcement).

(28) Karton above n 3, 37.

(29) See, eg, Christopher Seppala, 'Recommended Strategy For (jetting The Right International Arbitral Tribunal: A Practitioner's View' (2009) 6(1) Transnational Dispute Management 1, 2.

(30) Karton above n 3, 234.

(31) See, eg, Albert Monichino, Luke Nottage and Diana Hu, 'International Arbitration in Australia: Selected Case Notes and Trends' (2012) 19 Australian International Law Journal 181; Richard Garnett and Luke R Nottage, 'What Law (If Any) Applies to International Commercial Arbitration in Australia?' (2012) 35 University of New South Wales Law Journal 953; Luke Nottage and Richard Garnett (eds), International Arbitration in Australia (Federation Press 2010).

(32) See, eg, research on the role of psychology in international arbitration: Sophie Nappert and Dieter Flader, 'Psychological Factors in the Arbitral Process' in Bishop and Kehoe, above n 10, ch 5; Lucy Akehurst, The Relevance of Psychology to International Arbitration: the Assessment of Credibility' (Paper presented at The Roles of Psychology in International Arbitration Conference', Brunel Law School, 23 May 2013). This article argues that a fundamental starting point for any examination of a state's protection of human rights begins with conceptions of citizenship. The term 'citizenship' is used by scholars in different ways, (3) and in this paper we draw upon the insights of Linda Bosniak, who identifies the different frames in which citizenship plays out. (4) There are four key aspects that underpin contemporary understandings of citizenship and which are useful for our argument: citizenship as identity and membership, citizenship as rights, citizenship as political participation and citizenship as a legal status. (5) While these aspects were formulated in the context of a discussion of the meaning of adult citizenship, we argue that they have a special significance for children, a significance that is reflected by the Convention.

In its legal formulation, citizenship is a fundamental expression of membership and is a basis to claim certain rights in a nation state. In Australia, the Australian Citizenship Act 2007 (Cth) (Acf) governs an individual's entitlement to the legal status of citizen. Citizenship is the most secure form of membership of the Australian community when compared to permanent and temporary residence. It is also the most secure form of entitlement to Australia's human rights protections. Individuals in Australia who have the legal status of citizen have a right to remain in Australia and, accordingly, to security of indefinite protection of its laws and policies. (6)

In this context, we highlight two key issues for Mitchell in her role as the Commissioner. First, it is crucial the Commissioner is not tied to legal conceptions of citizenship based in the Act alone. The centrality of citizenship to membership of the Australian community and to security of human rights protections highlights that citizenship is more than a legal status. Returning to Bosniak's work, (7) when reviewing the extent to which the Act protects the human rights of children in Australia, it is crucial that the Commissioner is mindful of a broader conception of children's citizenship, encompassing membership, rights, and political participation, as well as the legal status conferred by the Act itself.

Second, an examination of the Act based on the Convention and in the context of this broader conception of citizenship highlights a deficiency in the extent to which Australia's citizenship law protects the human rights of all children in Australia. Too often the Act lacks the flexibility in practice to allow a consideration of children's best interests, (8) protect children's rights without discrimination, (9) foster their participation, (10) nurture their right to a nationality and an identity (11) and acknowledge the vulnerabilities of adopted children. (12) This creates a vulnerable class of children who, despite their connections with Australia by membership or political participation, are unable to attain the security of rights and legal status of an Australian citizen.

II The Act: Citizenship as a Legal Status

Citizenship in Australia is a statutory concept. (13) The Act governs the ways in which individuals, including children, may attain the legal status of Australian citizen. (14) While membership of the Australian community has existed as a legal concept since the time of Federation, legislation governing Australian citizenship was first enacted in 1948. (15) The enactment of the Act in 2007 reframed the structure of how one becomes a citizen. Children are particularly impacted by the Act in three key areas: automatic acquisition of citizenship, (16) obtaining citizenship by application (17) and the cessation of citizenship. (18)

A child may automatically acquire the legal status of an Australian citizen in one of three ways. If born in Australia, the child will automatically be an Australian citizen if one of the parents is a citizen or permanent resident, (19) or if not, if the child ordinarily resides in Australia for the first 10 years of his or her life. (20) A child adopted by an Australian citizen will also be a citizen if the child is a permanent resident and is adopted under a law in force in an Australian state or territory. (21) Finally, a child found abandoned in Australia is an Australian citizen, unless and until the contrary is proved. (22)

The Act also identifies ways of applying for citizenship. (23) A child may make an application for a grant of Australian citizenship by descent, (24) by conferral, (25) in circumstances of statelessness (26) or if adopted in accordance with the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. (27) The Minister must refuse an application for citizenship if the applicant does not satisfy the national security, (28) identity (29) and timing (30) requirements imposed by the Act. In addition, the Minister has a discretion to refuse an application for citizenship by conferral under s 21 (5) (31) or an application under s 19C by a child adopted overseas, (32) despite the applicant satisfying the eligibility criteria and other requirements.

Two of the Act's provisions concerning the cessation of Australian citizenship apply specifically to children. First, under s 25(4), where a child under the age of 16 makes an application for citizenship by conferral under s 21 of the Act at the same time as one or more of their parents, the approval of the child's application is conditional on the approval of their parents' application. (33) Second, if the parent of a child under the age of 18 ceases to be an Australian citizen because they have renounced their Australian citizenship, (34) had their citizenship revoked by the Minister, (35) or are serving in the armed forces of a country at war with Australia, (36) the Minister has a discretion also to revoke the child's Australian citizenship. (37)

This is therefore the legal starting point for thinking about citizenship, but we argue that the enquiry must extend beyond the legislation.

III The Convention: Supporting a Broader Conception of Children's Citizenship

The Act governs children's entitlement to citizenship as a legal status through the regulation of the acquisition, conferral and cessation of Australian citizenship. However, the significance of children's citizenship resonates beyond a legal classification based on legislatively prescribed requirements. Citizenship is the most secure form of legal membership of the Australian community and it is also critical for the security and stability of a child's rights in Australia. Further, citizenship is an important reflection of children's political engagement and identification with the Australian community. The Convention reflects these aspects, demonstrating their centrality both to the concept of citizenship and to children's rights more generally.

A The Significance of the Convention

The Convention is the most comprehensive statement of policy regarding children's interests and has a significant role in Australian law and policy. (38) While statements of international law must be specifically incorporated into Australian legislation to have legal status in

Australia (39) and no federal or state legislation has implemented the entire Convention, parts of the Convention are reflected in state and federal legislation. Significantly, when carrying out her functions under the Australian Human Rights Commission Act 1986 (Cth), the Commissioner is required to have regard to the Convention where appropriate. (40)

More broadly, the Convention informs the interpretation and application of all Australian legislation. 'Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party.' (41) The Australian government s ratification of the Convention gives rise to an international law obligation of the Australian federal government to perform its obligations in good faith. (42) It is also significant that 193 countries have ratified the Convention. Only Somalia and the United States have not yet ratified. Its near universal acceptance makes the Convention an important document for ascertaining the substance of children's rights. (43)

The Convention applies to all children (44) and contains 40 substantive articles, covering a spectrum of rights. These range from protection against abuse and exploitation to the right to family life, health and education. Certain rights are particularly relevant to the broader conceputalisation of children's citizenship. These rights will be discussed now in the context of citizenship as rights, citizenship as political activity and citizenship as membership.

B Citizenship as Rights

Bosniak explains that 'the enjoyment of rights is the defining feature of societal membership: citizenship requires possession of rights, and those who possess the rights are usually presumed thereby to enjoy citizenship'. (45) The Convention reflects the importance of securing possession of rights for all children. The United Nations Committee on the Rights of the Child ('Committee') has identified that it is a central principle (46) of the Convention that the rights set out within the Convention apply to all children without discrimination. (47)

Australian legislation also 'attaches considerable weight to the concept of Australian citizenship ... bringing with it special rights and obligations'. (48) Although most Australian legislation does not discriminate between citizen and non-citizen Australian residents, (49)

certain statutory rights are limited to citizens. Most significant for children are the distinctions made between citizens and non-citizens in the Migration Act 1958 (Cth), (50) including a citizens' right of re-entry to Australia. (51) The right of re-entry is perhaps the central element of the importance of citizenship to children's human rights. A right of reentry to Australia means a right to remain resident in Australia, thereby securing the protection of the spectrum of legislative rights that come with that residence.

In addition, citizenship may also give rise to certain common law rights for children. In the High Court, GaudronJ has recognised that '[c]itizenship ... involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability'. (52) In the context of reviewing the decision to deport a non-citizen father who had children who were Australian citizens, Gaudron J set out one such obligation, in that:
   citizenship carries with it a common law right on the part of
   children and their parents to have a child's best interests taken
   into account, at least as a primary consideration, in all
   discretionary decisions ... which directly affect that child's
   individual welfare. (53)


This right is also central to the Convention. (54) Under the Convention, states parties have an obligation to ensure that the 'best interests of the child' is a primary consideration in all actions concerning children. (55) Every legislative, administrative and judicial body is required systematically to consider how children's rights and interests are affected by their decisions and actions. (56)

Security of rights, and a child's right to have their best interests considered in matters that concern them, are central aspects of the Convention and of the meaning of citizenship in Australia. Considering citizenship in the context of possessing rights highlights the importance of citizenship for children, not only for securing children's entitlement to certain statutory rights, but to fundamental common law rights that exist independently of legislation and international law to protect the most vulnerable children in our community.

C Citizenship as Political Activity

The Convention recognises that all children have a right to express their views freely in all matters affecting them, with those views being given due weight. (57) The Convention also confers rights to freedom of expression, (58) thought, conscience and religion, (59) and

(3) This is the subject of another article, Kim Rubenstein, 'Citizenship in Australia: Unscrambling its Meaning' (1995) 20 Melbourne University Lair Review 503, and is discussed in great detail in Kim Rubenstein, Australian Citizenship Law in Context (Lawbook Co, 2002).

(4) Linda Bosniak, 'Citizenship Denationalized' (2000) 7 Indiana Journal of Global legal Studies 447.

(5) Ibid 455. These will be further defined below.

(6) Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, 44-6. See Helen Irving, 'Still Call Australia Home: The Constitution and the Citizen's Right of Abode' (2008) 30 Sydney Law Renew 131 for a discussion of the legal basis of citizens' right to remain in Australia.

(7) Bosniak, above n 4.

(8) Convention art 3.1.

(9) Ibid art 2.1.

(10) Ibid art 12.

(11) Ibid art 8.1.

(12) Ibid art 21.

(13) The High Court has accepted that the Commonwealth's powers under ss 51(xix) and (xxvii) of the Constitution are broad enough to support the creation of a statutory status of citizenship: see Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162, 173. Further, '[w]ithin the limits of the concept of "alien" in s 51(xix), it is for Parliament to decide who will be treated as having the status of alienage, who will be treated as citizens, and what the status of alienage, or non-citizenship, will entail': see Korvitamana v The Commonwealth [2006] 227 CLR 31, 38; Singh v Commonwealth (2004) 222 CLR .322, 329.

(14) For a broader discussion of the meaning of citizenship in Australia, see Rubenstein, Citizenship in Australia, above n 3; Kim Rubenstein 'Citizenship and the Centenary--Inclusion and Exclusion in 20,h-Century Australia' (2000) 24 Melbourne University Law Review 576.

(15) Australian Citizenship Act 194X (Cth). For a full account of the evolution of Australian citizenship sec Rubenstein, Australian Citizenship Law, above n 3.

(16) Act pt 2 div 1.

(17) Ibid pt 2 div 2.

(18) Ibid pt 2 div 3.

(19) Ibid s 12(l)(a). In Hr Minister for Immigration and Citizenship (2010) 272 ALR 605, the Federal Court recognised that the meaning of 'parent' is not limited to biological parents and encompasses the ordinary English meaning of the word.

(20) Acts 12(l)(b).

(21) Ibid s 13(1).

(22) Ibid s 14.

(23) The terminology was originally that of 'naturalisation'.

(24) Act s 16.

(25) Ibid s 21(5).

(26) Ibid s 21(8).

(27) Opened for signature 29 May 1993, Hague Conference on Private International Law Convention 33 (entered into force 1 May 1995) ('Hague Convention*); Acts 19C.

(28) For citizenship by descent see Act ss 17(4)-(4B); by conferral under s 21(5) sec Act ss 24(4)-(4C); by adoption sec Act ss 19D(5)-(7A).

(29) For citizenship by descent see Act s 17(3); by conferral under s 21(5) see Act s 24(3); by conferral under s 21(8) see Act s 24(3); by adoption see Act s 190(4).

(30) Except in circumstances of statelessness, if a person has ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen for 12 months from the day on which the person ceased, or last ceased, to be an Australian citizen. For citizenship by descent see Act s 17(5); by conferral under s 21(5) see Act ss 24(7)-(8); by adoption see Ads 19D(8).

(31) Acts 24(2).

(32) Act sl9D(3).

(33) Acts 25(4).

(34) Under Acts 33.

(35) Under A ct s 34.

(36) Under Act s 35.

(37) Act s 36.

(38) Australian Law Reform Commission, Seen and Heard: Priority for Children in the 1 regal Process, Report No 94 (1997) [3.14].

(39) Wurridjal v Commonwealth (2009) 237 CLR 309, 412; Nu/yarimma v Thompson (1999) 96 FCR 153,162.

(40) Australian Human Rights Commission Act 1986 (Cth) s 46MB(6)(v).

(41) Minister [or Immigration and Ethnic A[fairs v Teoh (1995) 183 CLR 273, 287.

(42) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 26.

(43) John Tobin, 'The Convention on the Rights of the Child: The Rights and Rest Interests of Children Conceived Through Assisted Reproduction' (Legal Studies Research Paper No 541, Melbourne Law School, 2004) 2.

(44) 'Child' is defined as 'every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier': Convention art 1.

(45) Bosniak, above n 4, 463-4.

(46) Committee on the Rights of the Child, Central Comment No 5: General Measures of Implementation of the Convention on the Rights of the Child, 34th sess, UN Doc CRC/GC/2003/5 (3 October 2003) |12| ([General Measures of Implementation of the Convention on the Rights of the Child).

(47) Convention art 2.

(48) Re Kboi Tri Tang (also known as Chi l\o Tseng) and Candice Hui Nui Cho and the Honourable Christopher John Hurford, Minister of State for Immigration and Ethnic Affairs [1986] L'CA 214 (4July 1986) [30]-[31].

(49) See Rubenstein, Citizenship in Australia, above n 3, ch 5, for a discussion of Australian legislation that docs and does not discriminate on the basis of citizenship and residence in Australia.

(50) Other significant statutes discriminating between citizens and non-citizens include the Commonwealth Electoral Act 191S (Cth), the Australian Passports Act 2005 (Cth) and the Higher Education Support Act 2005 (Cth). The Commonwealth Electoral Act 1918 (Cth) and Australian Passports Act 2005 (Cth) respectively restrict the rights to enrol to vote in Australian elections and to hold an Australian passport to citizens. Access to Commonwealth government- supported higher education in Australia is limited to Australian citizens and permanent humanitarian visa holders, with only limited exceptions: see Higher Education Support Act 2003 (Cth) ss 90-5,104-5, 118-5, 126-5, sch 1 para 44.

(51) Migration Act 1958 (Cth) s 42.

(52) Teoh (1995) 183 CLR 273, 304.

(53) Ibid.

(54) General Measures of Implementation of the Convention on the Rights of the Child, UN Doc CRC/GC/2003/5 |12|.

(55) Convention art 3.1.

(56) General Measures of Implementation of the Convention on the Rights of the Child,, UN Doc CRC/GC/2003/5 |12|.

(57) Convention art 12.

(58) Ibid art 13.

(59) Ibid art 14.
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Author:D'Silva, Magdalene
Publication:Australian International Law Journal
Article Type:Book review
Date:Jan 1, 2013
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