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Article Excerpt
THE FLUID STATE: INTERNATIONAL LAW AND NATIONAL LEGAL SYSTEMS, EDITED BY HILARY CHARLESWORTH, MADELAINE CHIAM, DEVIKA HOVELL AND GEORGE WILLIAMS (SYDNEY, AUSTRALIA: THE FEDERATION PRESS, 2005) 304 PAGES. PRICE AU$125.00 (HARDCOVER) ISBN 1862875685.
The Fluid State is a collection of essays concerned with what the editors in their introductory chapter term the 'uneasy relationship' between international and national law. (1) The opening chapter stages this relationship in conventional constitutional terms, as one between two legal systems. (2) This constitutional approach provides the organising framework for the collection. Part 1 consists of three chapters concerned with the ways in which the creation of international law and engagement in foreign policy complicate the relationship between the legislature and the executive within states. The chapters in Part 2 focus on the role of the judiciary as a 'gatekeeper' (3) determining the role that international law (both in the form of treaties and of customary international law) will play in domestic law. Part 3 explores the relationship between 'national politics' and the 'international sphere', understood as trustable yet distinct categories. (4) Constitutionalism pervades the collection as a technique for placing these legal systems and their constituent authorities and rules into relation with each other. While in Parts 1 and 2 this technique is exercised in response to the challenge posed by international law to the architecture of domestic constitutional arrangements, in Part 3 it is exercised in response to the challenges that domestic politics and processes pose to the creation, interpretation and implementation of international law.
Yet the collection also works to question both the conventional representation of two stable legal systems interacting in predictable ways and the corresponding role of the legal practitioner as one who can determine the proper hierarchies between norms or sources of law, or decide on the proper relations between authorities. In their opening chapter, the editors suggest that 'the orthodox international and public law theories about how international and domestic law interact do not recognise the complexity, and sometimes contradictory nature, of the international/national legal interface'. (5) Throughout the collection, the authors puzzle over the categories provided by public and international law for understanding the juridical questions posed by the organisation of modern political life around the notion of sovereign statehood.
In this review, I want to trace the ways in which the turn to constitutionalism, together with innovative responses to the dissatisfaction that this turn provokes, can be seen as part of a larger pattern within contemporary public international law scholarship. This collection makes a valuable contribution to that contemporary scholarship in the strongly comparative approach it performs and develops. The participation of authors from Australia, Canada and New Zealand gives the collection a particular focus upon the ways in which the relation between international and national law has been understood over time by lawyers from Commonwealth countries. It is this attention to practice in Commonwealth countries, and thus to the legacies of British Empire, which I will suggest offers significant insights.
I CONSTITUTIONALISM AND INTERNATIONAL LAW
In its attention to the proper relation between international and national law, or between international and national institutions and processes, this collection is an example of a significant contemporary trend in legal and political scholarship. Institutional and political developments since the end of the Cold War have seen a revival of interest in constitutionalism as a response to the varied challenges posed to the notion of sovereign state authority by war, terrorism and economic globalisation, and to the demands made on states by humanitarian crises, the claims of those seeking asylum and human rights obligations.
The turn to constitutionalism manifests itself in international legal scholarship in the debate about whether and how international law is capable of functioning as a unified, coherent and comprehensive legal system. In doctrinal terms, this had led to a focus on developing legal techniques for dealing with the perceived fragmentation of the international legal system into myriad specialised (but not self-contained) regimes (6) and for managing the conflict of norms which results, (7) and to a search for the fundamental values that might be said to ground such a unified system. (8) In institutional terms, the focus has been on discussing how to allocate functional responsibilities, authority, competencies or jurisdiction appropriately within and between international organisations, (9) and between international organisations and their member states. (10)
In The Fluid State, constitutionalism is explored from a nationalist rather than an internationalist perspective. In this collection, the goal of constitutionalism as a legal technique is understood in terms of determining the proper distribution of power and authority within states. The bulk of the chapters are concerned with the potential for international law to pose problems for the 'ultimate lawmaker', (11) understood from a nationalist viewpoint as the domestic parliament within a given state. Constitutionalism appears in this collection, as it does in international law more generally, as a response to a series of perceived threats or challenges to the existing order, in the form of war, economic globalisation, administrative detention and human rights violations.
The chapters in Part 1 are concerned with the relation between the executive and the parliament, and more specifically with whether the parliament as 'lawmaker' or democratic representative of the people can constrain or oversee the international activities of the executive. Of particular concern to the authors of these chapters are two internationalist aspects of executive activity: treaty negotiations and the protection of national security--whether through waging war on external enemies or detaining, interrogating or conducting surveillance upon enemies within the state. In his chapter, John Uhr explores the capacity of the Australian Parliament to scrutinise executive action in the areas of defence and security policy. (12) For Uhr, parliamentary...
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