Academic journal article The Australian Journal of Politics and History

Hostile Receptions: Dilemmas of Democracy, Legitimacy and Supranational Law

Academic journal article The Australian Journal of Politics and History

Hostile Receptions: Dilemmas of Democracy, Legitimacy and Supranational Law

Article excerpt

I. Theoretical Underpinnings

Introduction: International/Supranational Law and Democracy: The relationship between the international and the local is an emerging focus for theorising international law in the twenty-first century. The increasing resonance of international humanitarian law in the domestic sphere, primarily through the implementation of treaty obligations in domestic legislation, gives international law a relevance to local communities never before seen. Whilst the effects of this phenomenon defy generalisation in Australia today, it is possible to discern a range of responses from indignation at the overarching reach of international law to the domestic space, to vindication of historical claims of mistreatment at the hands of colonial oppressors and perhaps everything in between.

Recent shifts in Commonwealth legislation and policy (1) have sparked debate on whether the federal government has breached its international obligations under the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Status of Refugees. Notwithstanding the importance and currency of this question, and irrespective of one's views on it, there is a broader issue raised by the question, which is more amenable to academic investigation. It may be framed in the following terms. How can the ideal of democratic control of legislation and the legal system generally be reconciled with the development of an autonomous international legal system protective of fundamental human rights? The article will approach this question from a comparative perspective, drawing on developments in Australia and the European Union (EU). The article argues that the above question cannot be dissociated from the broader issue of legitimacy of international/supranational law and the norms of international governance. It investigates the theoretical underpinnings of humanitarian law, drawing on the contrasting experiences of Australia and the EU with regard to the reception of supranational within the domestic legal order.

Many have written about how the democratic character of international decision-making might be advanced. (2) Political scientists and scholars have been particularly concerned with the reconceptualisation of democracy beyond the state and with theorising about democratic governance in a post-nation-state era in the EU. (3) Some in Australia have advocated Parliamentary approval of treaties before ratification by the executive as a means of "[elevating] the matter to the level of public debate and [enhancing] deliberative democracy". (4) Indeed, Sir Anthony Mason suggests that the "accountability of international institutions to democratically elected legislatures, if it could be achieved, would be a significant advance". (5) True and valid as this may be, the existence of a so-called "democratic deficit" of international regulation does not undermine the human rights instruments accepted as binding and legitimate by the executive and implemented by domestic legislation in accordance with domestic constitutional requirements. Nor does it diminish the authority of such instruments that have been ratified by the state but not incorporated within domestic law. Furthermore, the establishment of international bodies, to whom jurisdiction over human rights has been transferred, is itself an expression of national sovereignty which obviates the need to subject any recommendations or opinions of those bodies to scrutiny by national institutions for compliance with national policies and laws emanating from democratic institutions. As observed by Burmester: "[...] to the extent [Australia's] decision making is constrained by international obligations, this is a result of voluntarily chosen constraints." (6) The European Court of Justice (ECJ) and legal commentators (7) have made the same argument in respect of constraints placed on the Member States of the EU. …

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