Implementing Treaties in Domestic Law: Translation, Enforcement and Administrative Law

Melbourne Journal of International Law, vol. 19, No. 1, (2018) Forthcoming

Sydney Law School Research Paper No. 18/54

29 Pages Posted: 5 Sep 2018

See all articles by Andrew Edgar

Andrew Edgar

The University of Sydney Law School

Rayner Thwaites

The University of Sydney Law School

Date Written: September 3, 2018

Abstract

In this paper, we analyse the ability of private individuals and organisations to enforce Australia’s treaty commitments, as referenced in domestic statutes. More particularly, we analyse the contribution of administrative law to the enforcement of international law within the domestic legal system. We study the complexity of such enforcement through two case studies centred on High Court decisions from the 1990s, "Minister for Immigration and Ethnic Affairs v Teoh" and "Project Blue Sky Inc v Australian Broadcasting Authority". Through the case studies we analyse how and why international law commitments are altered when they are 'drawn down' into domestic law and litigants seek to enforce them there. We focus on a common implementation technique in Australian law, whereby treaty obligations constitute qualified limitations on executive discretion under statute. Through our case studies we illustrate how statutory reference to a treaty needs to be analysed as an intermediate step in implementation, with much of the work to make the treaty obligation enforceable in domestic law being undertaken by the administrative decision-makers charged with applying the statute, potentially supervised by the courts. Our themes are the role of domestic courts in enforcing treaty obligations and the inter-institutional dynamics generated by statutory implementation. We show how the legislative incorporation of international law may only constitute the starting point of a complex series of institutional interactions, often refracted through administrative law doctrine.

Keywords: International Law, Administrative law, Comparative International Law, Domestic Courts, Legal pluralism, Legal enforcement of international law, Implementation of international law, Teoh, Project Blue Sky

JEL Classification: K10, K30, K33, K39

Suggested Citation

Edgar, Andrew and Thwaites, Rayner, Implementing Treaties in Domestic Law: Translation, Enforcement and Administrative Law (September 3, 2018). Melbourne Journal of International Law, vol. 19, No. 1, (2018) Forthcoming; Sydney Law School Research Paper No. 18/54. Available at SSRN: https://ssrn.com/abstract=3243173

Andrew Edgar (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Rayner Thwaites

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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