Hostile Receptions: Dilemmas of Democracy, Legitimacy and Supranational Law

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. Recent shifts in Commonwealth legislation and policy have sparked debate on whether the federal government has breached its international obligations. 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, and should, the ideal of democratic control of legislation and the legal system generally be reconciled with the development of an autonomous international legal system? The article will approach this question from a comparative perspective, drawing on legal and political developments in the EU and Australia. It seeks to justify a comparative analysis on the basis that Australia (an established federation) and the EU (an emerging federation) are both dealing with issues of reception of supranational law within domestic systems. It concludes that there is a need to reaffirm the legitimacy of supranational law both as an expression of national sovereignty and as an outcome of rational discourse — i.e. it has come into being with right process and is considered binding.