Cases before International Courts and Tribunals concerning Questions of Public International Law Involving Australia 2019

Abstract In their Foreword, Hirschl and Shachar challenge the supposed contemporary decline of state sovereignty and describe the enduring and expansive spatial reach of state power to counter threats to sovereign territorial control. This Afterword looks into the normative foundations of this account and its consequences for public international law and for international courts, in particular. “Spatial statism” exposes, I argue, a disjunction between the concepts of state sovereignty and popular sovereignty—and thus disrupts the normative expectation that those subject to the law are also its authors. It is this expectation that international judicial review must seek to restore. The attempt to do so is burdened by analytical and practical difficulties. But the project, I argue, is essential. In confronting the new “spaces” of international entanglement, judges must redeem the idea that citizens might yet reclaim those entanglements as a “common world,” not just a space in which they are brought together, unfreely, under the mantle of state coordination and coercion.