BLAKE DAWSON WALDRON
L A W Y E R S
ADOPTION OF CUSTOMARY INTERNATIONAL LAW
INTO AUSTRALIAN DOMESTIC LAW
1.
Introduction
This memorandum provides an overview of the status of customary international law in
Australia, as well as commenting on the position in the United Kingdom, Canada and New
Zealand. The memorandum discusses in some detail the judgment in Nulyarimma v
Thompson (Nulyarimma), 1 in particular the dissenting judgment of Merkel J.
2.
3.
Executive Summary

In the UK, the position for some time has been that customary international law is
regarded as "incorporated" into domestic law in the absence of inconsistent
legislation.

Recently, in R v Jones the House of Lords has drawn a distinction between
customary international law in relation to civil law rights and duties, and customary
international crimes. The latter are not recognised as being incorporated into the
common law in the UK. Nulyarimma was cited in support this approach.

In Australia, customary international law (both civil and criminal) must be
"transformed", that is, adopted by statute, before it attains the status of domestic
law. Nulyarimma stands as the current Australian authority in this respect.

The dissenting judgment of Merkel J in Nulyarimma advocates the view that
customary international law is a "source" of domestic law and as such should be
treated as part of domestic law.

The question of the status of customary international law in Australia has not yet
been considered by the High Court.
What is customary international law?
Customary international law has traditionally been understood as a combination of State
practice and opinion juris sive necessitatis (the belief by States that it is an international
legal obligation).2 Uncontentious examples of customary international law include the
prohibition on genocide, crimes against humanity and the systematic use of torture.
1
Nulyarimma v Thompson (1999) 96 FCR 153.
Treasa Dunworth, "The Rising Tide of Customary International Law: Will New Zealand Sink or Swim" (2004) 15
Public Law Review 36, 36.
2
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2.
It can take years for custom to crystallise into law. Even then, there can be disputes about
the customary status of these rules, their scope and application.3
4.
Status of customary international law in Australia
In Australia, it is accepted that international law, including treaties and customary
international law, is a "legitimate and important influence on the development of the
common law, especially when international law declares the existence of universal human
rights".4
An issue which remains unsettled is whether customary international law forms part of the
common law. This issue was first considered by Williams J in Polites v Commonwealth,
where his Honour stated that customary international law:
when it has been established to the satisfaction of the court, is recognised and acted upon as part of
…municipal law so far as it is not inconsistent with rules enacted by statutes or finally declared by
courts.5
In Chow Hung Ching v R,6 Dixon J when considering, in obiter, whether international law
formed part of the common law of Australia said that "international law is not a part of, but
is one of the sources of, English law".7 In the same case, Latham CJ stated that:
International law is not as such part of the law of Australia … but a universally recognised principle
of international law would be applied by our courts. 8
The most comprehensive and authoritative judicial analysis of the position of customary
international law in Australian law is in the Federal Court's decision in Nulyarimma. This
case stands as the current authority against the adoption of the customary international law
into Australian domestic law in the absence of enacting legislation.
(a)
Nulyarimma
In Nulyarimma, the applicants alleged that the respondents (certain federal
ministers and members of parliament) had acted unlawfully by declining to proceed
with an application by Australia to place the lands of the Arabunna People on the
World Heritage List and through the formulation of the government's Ten Point
Plan and support for the Native Title Amendment Act 1998 (Cth). It was alleged
that, as a result of the conduct, the respondents had committed acts of genocide, in
Hilary Charlesworth, Madelein Chiam, Devika Hovell and George Williams, "Deep Anxieties: Australia and the
International Legal Order" (2003) 25 Sydney Law Review 423, 451.
3
4
Mabo v Queensland [No 2] (1992) 175 CLR 1, 42.
5
Polites v Commonwealth (1945) 70 CLR 60.
6
(1948) 77 CLR 449.
(1948) 77 CLR 449, 477 citing article by Prof J L Brierly on International Law in England (1935) 51 Law Quarterly
Review 31.
7
Citing Chung Chi Cheung v R (1939) AC 160; Polites v Commonwealth (1945) 70 CLR 60 and West Rand Central
Gold Mining Co v R (1905) KB 391.
8
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3.
breach of customary international law. The respondents argued that the application
did not give rise to any reasonable cause of action known to Australian law.
The majority of the Federal Court found in favour of the respondents. Wilcox and
Whitlam JJ held that, in the absence of specific enacting legislation, customary
international law does not form part of domestic law.9 Wilcox J noted that to find
otherwise would lead to the:
curious result that an international obligation incurred pursuant to custom has greater
domestic consequences than an obligation incurred expressly and voluntarily by Australia
signing and ratifying an international convention. 10
A further issue that arose was whether customary international crimes (also referred
to as crimes of international jurisdiction) should be crimes under Australian law.
Whitlam J held that even if customary international law formed part of the common
law in the civil law jurisdiction, there was no customary international law principle
to the effect that "courts in common law countries have jurisdiction in respect of
those international crimes over which States may exercise universal jurisdiction".11
Wilcox came to the same conclusion citing principles of public policy and noting
that courts are no longer allowed to create new criminal offences – that is the realm
of the legislature.12
Merkel J, in dissent, held that international law is a source of domestic law13 and set
out six criteria that a court should consider when determining whether customary
international law should be "adopted" into the common law:14
9
(i)
the particular doctrine or rule of international law must have attained the
position of general acceptance by assent of the community of nations;
(ii)
the court must consider whether the rule is one which should be treated as
having been adopted or "received into" domestic law;
(iii)
the rules must not be inconsistent with existing legislation;15
(1999) 96 FCR 153 [20].
10
Nulyarimma v Thompson (1999) 96 FCR 153 [20].
11
Nulyarimma v Thompson (1999) 96 FCR 153 [53].
(1999) 96 FCR 153, [53], discussed in Henry Burmester and Susan Reye, "The Place of Customary International
Law in Australian Flaw: Unfinished Business" (2000) 21 Australian Yearbook of International Law 39, 45. See also
Ryszard Piotrovwicz, "Genocide, custom and Australian law" (2000) 74 Australian Law Journal 738, 739.
12
13
In doing so, his Honour adopted the "source view" suggested by Dixon J in Chow Hung Ching, discussed above.
14
Nulyarimma v Thompson (1999) 96 FCR 153 [131]-[132]
Merkel J noted that added that whilst it is clear the international law cannot be inconsistent with a rule enacted by
statute, the position is less clear with rules inconsistent with common law. The reception of international law into
domestic law will necessarily alter or modify the common law, and hence be seen as inconsistent. Therefore, his
Honour stated that a strict test of inconsistency should not be applied; instead what must be determined is whether the
international law is inconsistent with general legal policies or principles: [132].
15
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4.
(iv)
where customary international law conflicts with domestic law, it cannot be
adopted without legislative change to enact the rule of customary
international law into domestic law;
(v)
once the rules of customary international law have been adopted or received
into domestic law and have the force of law, they are treated as having
modified or altered the common law; and
(vi)
consideration must be had to whether the rule of customary international
law was established at the time that the events giving rise to any cause of
action occurred.
Justice Merkel's approach is aptly summarised by Burmester and Reye:
a generally accepted rule of customary international law is to be taken to have been adopted
into domestic law if it is not inconsistent with either statute or with the rules of the common
law declared by the courts. 16
Merkel J also found that there was no reason why crimes of universal jurisdiction
should not be adopted into common law.17 Having considered the criteria set out
above, Merkel J concluded that genocide is an offence under the common law of
Australia.
(b)
Subsequent cases
In Thorpe v Kennett,18 Warren J in the Victorian Supreme Court relied upon and
adopted the judgements of Wilcox and Whitlam JJ in Nulyarimma and declined to
regard genocide as incorporated as a criminal offence in Victoria unless the
Parliament enacted specific legislation.
Similarly in Sumner v United Kingdom of Great Britain & ors,19 Nyland J in the
South Australian Supreme Court followed Nulyarimma, finding that
notwithstanding the fact that both customary international law and international
conventions may … have some influence upon the common law, in the case of the crime of
genocide there is no scope for such development.20
Henry Burmester and Susan Reye, "The Place of Customary International Law in Australian Law: Unfinished
Business" (2000) 21 Australian Year Book of International Law 39, 46.
16
(1999) 96 FCR 153 [114], relying on the dissenting judgment of Lord Millett in R v Bow Street Metropolitan
Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) (1999) 2 All ER 97.
17
18
[1999] VSC 442.
19
[2000] SASC 91.
20
[2000] SASC 91 [32].
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5.
5.
International jurisprudence
(a)
United Kingdom
Like most common law countries, the UK has taken the "incorporation" approach,
that is, that customary international law automatically forms part of domestic law,
except where it conflicts with a statute or a fundamental principle of common law.21
For example, in West Rand v R (West Rand),22 the Court readily accepted that
international law was binding between States, and should be acknowledged and
applied by domestic courts when legitimate occasions arise. Convincing evidence
would be required to prove that the custom "was of such a nature, and has been so
generally and widely accepted that it can hardly be supposed that any civilised state
would repudiate it".23
In Chung Chi Cheung v R (Cheung)24 the Privy Council embraced the view that the
common law courts do not apply customs as such, but rather domestic rules reflect
received custom. The Privy Council stated:25
The Courts acknowledge the existence of a body of rules which states accept amongst
themselves. On any judicial issue they seek to ascertain what the relevant rule is, an,
having found it, they will treat as incorporated into the domestic law, so far as it is not
inconsistent with rules enacted by statutes or finally declared by their tribunals.
Trendtex Trading Corp v Central Bank of Nigeria26 (Trendtex) consolidates West
Rand and Chung. It stands as the current UK authority for the proposition that rules
of international law are incorporated into domestic law and considered to be a part
of that law unless they are inconsistent with domestic legislation.27 In Pinochet,28
the House of Lords confirmed that customary international law could narrow the
application of the common law and legislation.29
In a recent House of Lords decision, R v Jones,30 Lord Bingham of Cornhill
accepted the proposition that customary international law is (without the need for
any domestic statute or judicial decision) part of the domestic civil law of England
21
Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529.
22
[1905] 2 KB 391.
23
West Rand [1905] 2 KB 391, [407].
24
[1939] AC 160.
25
[1939] AC 160, 167-168.
26
[1977] QB 529.
27
[1977] QB 526, 553.
28
R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) (1999) 2 All ER 97.
See discussion in Treasa Dunworth, "The rising tide of customary international law: Will New Zealand sink or
swim" (2004) 15 PLR 36, 43.
29
30
[2006] UKHL 16.
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6.
and Wales.31 However, Lord Bingham (with the other Lords concurring) qualified
this statement in relation to customary international crimes. The House of Lords
declined to accept that customary international crimes are automatically assimilated
into the law of England.32 Lord Bingham of Cornhill cited Nulyarimma in support
of this conclusion.33
(b)
Canada and New Zealand
In Canada, the position of customary international law relative to the common law
is unsettled and has not been considered by the Canadian Supreme Court. Recently,
in Bouzari v Iran, Swinton J in the Ontario Superior Court of Justice stated in obiter
that "customary rules of international law are directly incorporated into Canadian
domestic law unless ousted by contrary legislation".34 Notably, the decision was not
unanimous, and the dissenting judgments were vigorous.
The New Zealand courts have not had the opportunity to consider whether
customary international law forms part of domestic law, although commentators
indicate that customary international law would be treated as being incorporated
into common law.35
6.
Conclusion
While Nulyarimma may have been correct in relation to customary international crimes
(certainly it has found support with the House of Lords in R v Jones), there are nonetheless
strong arguments to support the approach of Merkel J with respect to customary
international law giving rise to civil rights and obligations. This would bring Australia into
line with the position in the UK.
The High Court is yet to consider and determine the status of customary international law
in Australia. Until they do, the judgment of Merkel J in Nulyarimma, and the prevailing
view in the United Kingdom, offer hope that future decision may recognise that customary
international law – at least in the civil law sphere - forms part of Australia's common law.
BLAKE DAWSON WALDRON
31
[2006] UKHL 16 [11]. The other Lords did not need to consider the issue.
[2006] UKHL 16 [23] (Lord Cornhill); [62] (Lord Hoffmann), Lord Rodger of Earlsferry, Lord Carswell and Lord
Mance agreeing. Both Lord Cornhill and Lord Hoffmann relied on public policy to support this conclusion, Lord
Hoffman noting that "new domestic offences should in my opinion be debated in Parliament".
32
33
[2006] UKHL 16 [23].
Bouzari v Iran (Islamic Republic) [2002] OJ No 1624,[39], cited in Treasa Dunworth, The Rising Tide of Customary
International Law: Will New Zealand Sink or Swim? (2004) 15 Public Law Review 36, 41.
34
See Treasa Dunworth, 47,discussing Controller and Auditor-General v Davison [1996] 2 NZLR 278; see also the
comments of Merkel J in Nulyarimma (1999) 96 FCR 153 [121].
35
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7.
26 June 2006
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