The Federation Press

The Fluid State

International Law and National Legal Systems

Overview

The Fluid State was cited by the High Court in Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

Traditional accounts of the relationship between international and national law present the interaction between the two as relatively ordered, if conflicting. This limited view of the relationship has become outmoded, as the scope of international legal regulation and the internationalised context of domestic law continue to expand.

This book analyses some of the national contexts in which international law and domestic law interact and identifies the way in which attitudes to international law shift between them. Some of the questions considered are:

  • How do perceptions of international law differ according to particular institutional vantage-points, whether that of the executive, the legislature or the judiciary?
  • What is the impact of the perceived ‘democratic deficit’ in international treaty-making?
  • What are some of the ways in which the judiciary acts as a gatekeeper between the national and international legal orders?
  • How does national politics influence engagement with the international sphere?

The contributors bring a range of different perspectives: politics, law and international relations. They include influential scholars such as Mayo Moran, Ann Capling, John Uhr, Andrew Byrnes and Janet MacLean and they discuss contemporary issues, such as the Australia-US Free Trade Agreement and the 2003 Iraq War.

Table of Contents

Preface
List of Contributors
Table of Cases
Table of Statutes

International Law and National Law: Fluid States
Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams

Part 1 - Legislatures, Executive Governments and International Law

Rethinking Legislative Powers: Parliamentary Responses to International Challenges
John Uhr
The Role for Parliaments in Treaty-Making
Joanna Harrington
Can the Democratic Deficit in Treaty-Making be Overcome? Parliament and the Australia-United States Free Trade Agreement
Ann Capling

Part 2 - The Judiciary as Gatekeeper

The Judicial Use of Unincorporated International Conventions in Administrative Law: Back-Doors, Platitudes and Window-Dressing
Wendy Lacey
A Stronger Role for Customary International Law in Domestic Law?
Kristen Walker and Andrew D Mitchell
Lost in Translation: Customary International Law in Domestic Law
Treasa Dunworth
Influential Authority and the Estoppel-Like Effect of International Law
Mayo Moran

Part 3 - National Politics and the International Sphere

International Law-National Law: Thinking through the Hyphen
Fleur Johns
Problems of Translation: The State in Domestic and International Public Law and Beyond
Janet McLean
‘The Law Was Warful’: The Iraq War and the Role of International Lawyers in the Domestic Reception of International Law
Andrew Byrnes
Influences on National Participation in International Institutions: Liberal v Non-Liberal States
Ann Kent

Index