Australia

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Abstract

Australian courts have repeatedly refused to accept that international law principles and norms, whether based on treaty or customary law, can be incorporated into the common law without the need for prior legislation. Despite some promising signs in the Mabo case that developments in international law can have an indirect influence on the development of the common law, Australian judges have consistently failed to take advantage of opportunities for analysing the relationship between international law and national law. Nor has the ability to use treaties as extrinsic evidence in the interpretation of ambiguous statutory language been enough to allow for a genuine analysis of the place of international law in Australian law. This has left jurisprudence uncertain, imposing a chilling effect on the pursuit of international legal rights through the Australian courts.

Original languageEnglish
Title of host publicationInternational Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion
EditorsDinah Shelton
Place of PublicationOxford UK
PublisherOxford University Press
Pages23-54
Number of pages32
ISBN (Electronic)9780191731914
ISBN (Print)9780199694907
DOIs
Publication statusPublished - 2011

Keywords

  • Australian law
  • Common law
  • Customary international law
  • Customary law
  • Domestic law
  • Treaties

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