The Fluid State

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:
PrefaceList of ContributorsTable of CasesTable 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