T OPIC 4

International Law and National Law

Contents
Objectives.............................................................................. 4.1
1. Introductory note and theories ....................................... 4.2
2. National law on the international plane........................... 4.2
3. International law on the domestic plane.......................... 4.3
4. Examples of international law on the domestic
plane .............................................................................. 4.4
5. The impact of international law on the
Australian legal system .................................................. 4.6
6. Topic summary.............................................................. 4.16
7. Further reading .............................................................. 4.19
8. Revision questions and feedback on the
relationship between international law and the
Australian legal system .................................................. 4.20

Objectives
At the end of this topic you should be able to
• Explain the relationship between international law and domestic
law, including the contrasting theories of monism and dualism
• Identify the possible impact of domestic law on decisions of
international courts and tribunals and on international law
generally
• Describe the difference between the doctrines of incorporation and
transformation in how international law might influence domestic
law
• Recognise that each individual state’s legal system decides
whether to adopt an incorporation or a transformation approach,
and that such an approach may be different in respect of treaties
and customary international law
• Indicate the approaches of the United Kingdom, South Africa and
the USA to the above issues

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• Appraise the relationship between treaties Australia has entered

into and Australian domestic law
• Analyse the relationship between customary international law and
Australian domestic law
• Describe the way in which international law is transformed into
Australian law, and used to guide statutory interpretation and
public administration.

1. Introductory note and theories

Reading CB, pp 104-107

Activity 4.1 Explain in a few sentences each the following theories or views of the
relationship between international law and domestic legal systems:
1. Monism
2. Dualism
3. The Fitzmaurice view (CB, pp 105-106)

2. National law on the international plane

Reading CB, pp 107-109

Activity 4.2 In what ways might national (ie. domestic) laws be relevant before
international tribunals and courts?

Feedback One of the ways in which it is possible to understand and discover a

state’s legal position on a variety of topics important to international law
is by examining the ways the state has dealt with the issue in domestic
law. A state will express its opinion on such important international
matters, as the extent of its territorial sea, or jurisdiction, through the
medium of domestic law. Thus, it is quite often the case that in the
course of deciding a matter before it, an international court will be
required to study the relevant pieces of domestic law.
Furthermore para. (1) (c) of Art 38 of the Statute of the International
Court of Justice provides that the ICJ may apply ‘the general principles

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of law recognised by civilised nations’. The reference to civilised

nations is today considered irrelevant, but what is a open to debate is the
meaning of ‘general principles’. A popular view is that Art 38 (1) (c) is
meant to include those rules and principles common to all legal systems.
National laws can also be useful in establishing the existence of
customary international law. In this regard it should be noted that
judicial decisions of national courts can be referred to as a source of
international law: Art 38 (1) (d) Statute of the International Court of
Justice.
In summary, a national law (which includes legislation, decisions of
national courts and even constitutions) can influence international law in
the following ways:
• it can form part of state practice that might contribute to the
articulation of a rule of customary international law, and
• it can contribute to the content of ‘general principles of law’ as
found in article 38(1)(c) of the ICJ’s Statute, and
• it can be used a source on international law, and due to all these
factors
• it can thus help to clarify the content of international law
Note that in certain areas of the law, national law must be relied upon by
the international court/tribunal.

If in a particular area of the law, an international court/tribunal must rely Activity 4.3
on national law, will it necessarily be bound by decisions of domestic
courts?

According to the Brazilian Loans case (CB, p!107), generally the Feedback
answer is ‘yes’, unless the relevant court decision ‘is uncertain or
divided’.

3. International law on the domestic plane

CB, pp 109-112 Reading

1. Explain the difference between the ‘incorporation’ and Activity 4.4

‘transformation’ approaches to how different states’ domestic
legal systems view the role of international law.

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2. What factors explain why some states take an ‘incorporation’

approach and others take a ‘transformation’ approach?
3. Which of the two approaches do most states adhere to?
4. Which approach do most Commonwealth states adhere to?
5. Are there any circumstances where domestic legal systems must
conform with international law?

Feedback 1. Transformation refers to the express and specific adoption of a

rule of international law by the domestic legal system.
Transformation will usually be carried out by the enactment of a
domestic statute. The transformation doctrine provides that no
rule of international law will become part of domestic law unless it
is specifically included. Incorporation avoids the need for new
legislation since it denotes the view that rules of international law
are automatically incorporated into domestic law. The
incorporation doctrine provides that all rules of international law
will automatically become part of domestic law unless they are
specifically excluded.
2. Cassesse points to two factors – whether the state has a statist (or
nationalistic) approach or an internationalist approach (South
Africa during and after apartheid being a good example of the
contrast); and secondly, what the relationship is between the
executive and legislative arms of government in the particular legal
system.
3. In the last paragraph in the extract from Cassesse, he points out
that most states do not use incorporation (ie. transformation is
more numerous) – but this does not mean international law is not
highly influential even in these systems.
4. A similar approach to that of the United Kingdom, except where
the state has its own Constitution that specifies the role of
international law in their legal systems.
5. See note 5 at pp 111-112.

4. Examples of international law on the

domestic plane

A. United Kingdom

Reading CB, pp 112-123

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1. Are treaties the United Kingdom (UK) has entered into part of the Activity 4.5
law in the UK?
2. Is customary international law part of the law in the UK?
3. If your answers to the above questions are different, is there any
justification for such a difference?
4. What has been the overall impact on British law of the European
Communities Act 1972 (UK) and the Human Rights Act 1998
(UK)?
5. If an English court finds that a particular Act of the British
parliament is in conflict with the European Convention on
Human Rights and Fundamental Freedoms 1950 (the ‘European
Convention’), what then happens?

1. The short answer is ‘no’, at least not unless the treaty has been Feedback
‘transformed’ by an Act of parliament (see the ‘ITC’ case).
2. The short answer is ‘yes’ (Triquet v Bath & West Rand Central
Gold Mining) as customary international law forms part of the
common law. This is provided the rule of customary international
law is clear and there is no contrary legislation, as legislation will
of course always ‘trump’ the common law.
3. The main justification appears to be the principle of parliamentary
sovereignty, although the writers of the text make a cogent
argument that this is unconvincing (see note 4, CB at p!116).
4. It is basically to bring together much more than ever before
British domestic law and international law. However, as Feldman
makes clear, British parliamentary sovereignty is still preserved,
and British Courts remain free to interpret the law as they see fit,
with the European courts jurisprudence only being persuasive and
not binding.
5. The British court does not have the power to invalidate the statute,
but can issue a declaration of incompatibility. This will alert
parliament to this situation, which then has the right to act on this
by repealing or amending the legislation, or not acting on this by
continuing to allow the statute to stand.

C. South Africa

CB, pp 127-128 Reading

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Activity 4.6 Is customary international law part of the South African legal system?

Feedback Pursuant to article 232 of its Constitution, a rule of customary

international law is part of the South African legal system unless it
conflicts either with the South African Constitution or with an Act of a
South African parliament.

D. United States

Reading CB, pp 129-130

Activity 4.7 Are Treaties the United States has entered into automatically part of
United States law?

Feedback Despite the apparent clear language of Article VI (2) of the US

Constitution, the American courts distinguish between ‘self-executing’
Treaties, which are automatically part of their law, and those that are not
self-executing, such as the UN Charter – see Sei Fujii v State of
California. The latter requires a legislative act to become law.

5. The impact of international law on the

Australian legal system
For those students who have completed the unit ‘Australian Legal
System’ (LAW10157) much of this will be revision from Topic 11 in
that unit. LLB students are also likely to have covered at least some of
this material in one of their compulsory courses.

Reading CB, pp 123-127

The current view of the High Court of Australia is that international law
is not directly a part of Australian domestic law: Minister for
Immigration and Ethnic Affairs v Teoh (CB, pp 123-124). For
international law to become domestic law it must be made (or
transformed) into local law by one of the law making institutions of our
domestic governmental structure. In Australia, the primary institution
that makes law is parliament, however judges do make law in stating the

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common law and in interpreting statutes. Therefore if international law

is to become national law it will have to either be adopted and enacted in
legislation or it will need to be made a principle of the common law
through judicial law making. In summary, international law is not part of
Australian domestic law unless it is transformed into domestic law
through a recognised law making process: Teoh.
Thus there are two distinct ways in which international law can be
related to domestic law within the domestic arena. Firstly, international
law can be directly included into and become part of the domestic law of
Australia, or alternatively, international law can be influential (or
indirectly included) by forming a part of the context, through which
judicial and governmental power is exercised. In the former situation the
process of transformation (normally) has an immediate effect on the
rights, obligations and liabilities of Australian citizens, while in the latter
case the influence of international law is at most, only indirectly relevant
to the rights, obligations and liabilities of the citizen.
Let us now break down into subsections the differing effects of
international law on the Australian legal system. This will help clarify
these effects, although it needs to be kept in mind that the subsections
are often related.

A. Direct effect of treaties Australia has entered into via

the process of transformation by parliament
In the past, international law has had its greatest impact in the domestic
legal system of Australia through the process called ‘transformation’.
This process entails the Commonwealth parliament passing legislation
that transforms international law (primarily treaties) into domestic law.
The essence of transformation is that it changes international law and its
obligations on states into domestic legislation creating rights and
obligations enforceable by individuals. In a dualist discourse it takes the
law off the international shelf/plane and re-positions it on the domestic
shelf/plane. Treaties must be transformed into domestic law through
legislation in order to preserve the law making function of parliament
under the Westminster system of government: Teoh supra.

What prominent pieces of Federal legislation have been enacted on the Activity 4.8
basis of this transformation principle? What gives the Federal
government the Constitutional power to enact such legislation?

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Feedback Some examples are:

The Racial Discrimination Act 1975 (Cth).
The Sex Discrimination Act 1984 (Cth).
The Human Rights and Equal Opportunity Commission Act 1986
(Cth).
The Disability Discrimination Act 1992 (Cth).
The Crimes (Torture) Act 1988 (Cth).
Each of the above enactments are based in whole or in part on various
international Treaties (in the case of the last Act, for example, the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment), or other international instruments. This is
necessary because the Federal government mainly uses the external
affairs power as the Constitutional basis for these enactments – if these
international instruments did not exist, then it would be far more
difficult for the Federal parliament to validly enact these statutes. After
much legal argument during the 1980s it is now settled law that the
Commonwealth Parliament does have the power to implement
international treaties under the external affairs power (section 51(29)
Constitution). The treaty must also be ‘bona fide’ and not a sham or
circuitous device entered into purely for the purpose of attracting the
external affairs head of power: Richardson v Forestry Commission
(1988) 164 CLR 261.

B. The indirect effect of treaties Australia has entered

into via the development of the common law
Australian Courts can use international legal principles when there is an
ambiguity or a gap in the common law. According to Brennan J in
Mabo (CB, p!123), while the common law ‘does not necessarily
conform with international law’, 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’. An important part of the thinking of one of leaders of the
modern approach to the role of international law in the common law,
Justice Kirby (now of the High Court), is that of the ‘Bangalore’
principles which he ‘discovered’ at a conference in India. These
principles provide a clearer picture of the circumstances when
international law will affect or be a source of the common law. There are
found in the next reading.

Reading 4.1 Kirby M, ‘The Australian Use of International Human Rights Norms:
From Bangalore to Balliol - a View from the Antipodes’ (1993) 16
University of NSW Law Journal 363 at 373/4

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1. What are the five Bangalore Principles Kirby mentions? Activity 4.9
2. Given the decision in Mabo, is there anything Kirby has left out?

1. These are listed clearly in the reading. Feedback

2. The five points leave out the possibility of a court overturning an
established common law rule on the basis of it ‘seriously
offending’ our notions of justice and human rights. For example,
Mabo itself overturned an established common law position - that
Australia had been founded on the notion of terra nullius. This
was done on the basis that it seriously offended our notions of
human rights and justice, or, in the terms used by some of the
judges, the former common law rule was a ‘manifest injustice’.
Perhaps a sixth point could have been added to the list.
The above principles are of significance, as anytime you can show that
there is no legislation covering a particular situation, and the common
law either does not cover it, or does not provide a clear answer, you can
argue that international law should apply. This has powerful
implications that few practising lawyers are aware of.

C. The indirect effect of treaties Australia has entered

into via the interpretation of legislation
If international law is not transformed into the domestic legal system it
remains international law. This is not to say though that it does not
influence domestic legal practice. In fact if Australia is party to an
international convention or is bound by a particular norm of customary
international law domestic courts are required to interpret texts (statutes
and the common law) in a way that is consistent with international law.
The point of distinction here though is that international law as
international law and not transformed domestic law is used to influence
the weaker sense of judicial law making, namely statutory interpretation.
In this instance we are not talking about bringing the international norm
into our domestic law but rather about using it to influence the
interpretation of an existing domestic norm. In this sense we are talking
about the role of international law (as international law) in interpretation.
An excellent introduction to the High Court’s position on using
international law as an aid to statutory interpretation is found in the
judgment of Mason CJ and Deane J in Teoh (CB, pp 123-124). After
reading the first two paragraphs of this abstract, note their honours then
also stated:
It is accepted that a statute is to be interpreted and applied,
as far as its language permits, so that it is in conformity and
not in conflict with the established rules of international law.

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The form in which this principle has been expressed might

be though to lend support to the view that the proposition
enunciated in the preceding paragraph should be stated so
as to require the courts to favour a construction, as far as the
language of the legislation permits, that is in conformity and
not in conflict with Australia’s international obligations.
That indeed is how we would regard the proposition as
stated in the preceding paragraph. In this context, there are
strong reasons for rejecting a narrow conception of
ambiguity. If the language of the legislation is susceptible of
a construction which is consistent with the terms of the
international instrument and the obligations which it
imposes on Australia, then that construction should prevail.
So expressed, the principle is no more than a cannon of
construction and does not import the terms of the treaty or
convention into our municipal law as a source of individual
rights and obligations.’

The remaining judges of the High Court appeared to support this

approach: Mason CJ and McHugh J (at 306) and Toohey J (at 360-1).
In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1,
Justices Brennan Deane and Dawson held that the unambiguous words
of Division 4B Migration Act 1958 (Cth) must be given effect even
though they may conflict with Australia’s international obligations
under the ICCPR and the Refugee Convention and Protocol: at 37-38.
Their Honours did however concede that in a case of ambiguity courts
should favour a construction of a Commonwealth statute that accords
with the obligations of Australia under an international treaty: at 38.
In same case Justice McHugh stated like (Brennan, Deane and Dawson
JJ) that the validity of domestic legislation is not dependant on
consistency with a Convention to which Australia is a party: at 74. This
approach, which suggests domestic constitutional legislative validity is
not dependant on norms of international law, was affirmed by a
unanimous judgment of the High Court in Horta v Commonwealth
(1994) 123 ALR 1. See Fitzgerald B, ‘Horta v Commonwealth: The
Validity of the Timor Gap Treaty and its Domestic Implementation’
(1995) 44 International and Comparative Law Quarterly 643.
Where the Court is merely interpreting the text of the common law and
not seeking to create or develop a new text then international law may
also act as an influence like it does in statutory interpretation: Mason CJ
and McHugh J (at 306) and Toohey J (at 360-1) in Dietrich v The
Queen (1992) 177 CLR 292.
In summary, domestic legal texts so far as the language of the domestic
text permits should be interpreted in a manner that is consistent with
international law binding on Australia: Teoh supra.

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D. The indirect effect of treaties Australia has entered

into via their effect on government decision-making
While judges will play a significant role in statutory interpretation, it is
important to remember that public administrators who take their
governing mandate primarily from legislation will also be required to
determine the relevance of international law when reading and applying
statutes. In the Teoh case (CB, p!124) it was suggested, more
specifically, that unimplemented international law may have an impact
on the exercise of an administrator’s statutory discretion in the
execution of government.
In Teoh the High Court suggested that Australia’s signing and
ratification of a treaty can generate a ‘legitimate expectation’ that
government will be administered in accordance with the treaty to which
Australia is a party. Once again this is not an example of transformation,
but rather international law as international law founding an expectation
that the Executive will act in a certain manner. In this scenario the
international law and its acceptance by the Australian Executive acts like
a statement of the Executive as to how they intend to act in
administration of the issue at hand. Note though that this approach
again does not seek to make international law part of our domestic law.
Teoh supra concerned the use Australia’s international law obligations
to found a legitimate expectation as that notion is understood in
administrative law. On this issue Mason CJ and Deane J said prior to
the last paragraph of the extract as found in your prescribed text (which
you should read again after reading this):
‘Moreover, ratification by Australia of an international
convention is not to be dismissed as a merely platitudinous
or ineffectual act, particularly when the instrument evidences
internationally accepted standards to be applied by the
courts and administrative authorities in dealing with basic
human rights affecting the family and children.

This approach was supported by Justice Toohey at 374. Justice

McHugh dissented saying that as there were so many treaties to which
Australia was a party (approx. 920), the administration of government
would be hamstrung if a legitimate expectation could be created by mere
ratification of a treaty: at 384ff.
Following the decision in Teoh that entry into a treaty could raise a
legitimate expectation as to how the Executive might act, then Senator
Gareth Evans (then Minister for Foreign Affairs and Trade) and
Michael Lavarch MHR (then Attorney-General Commonwealth) issued
a joint statement, dated 10th May 1995, (reinforced by later Ministers,
Downer and Williams, respectively, on 25 February 1997) that

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purported to rebut any legitimate expectation that the Executive would

act in accord with international obligations. It reads in part:
‘We state, on behalf of the Government, that entering into
an international treaty is not reason for raising any
expectation that government decision-makers will act in
accordance with the treaty if the relevant provisions of that
treaty have not been enacted into domestic Australian law. It
is not legitimate, for the purpose of applying Australian law,
to expect that the provisions of a treaty not incorporated by
legislation should be applied by decision-makers. (at 2)
The Government intends to legislate to reinforce this
statement and put beyond doubt the status of these
unlegislated international obligations.’ (at 2)

Despite the last sentence, note that the proposed Administrative

Decisions (Effect on International Instruments) Bill 1997 (Cth) which
purports to give legislative backing to the Downer/Williams statement
has never been enacted.
It is apparent then that the interplay between public administration and
international law promises to be dynamic and expansive, however the
clear message from Teoh is that unimplemented treaties either create
legitimate expectations as to how a discretion might be exercised or they
influence the exercise of discretion, but they definitely do not dictate
how the discretion should be exercised in law. There has been no clear
pronouncement on whether customary international law can create a
legitimate expectation, nor as to the extent to which customary
international law transformed as common law might bind substantively
the exercise of administrative discretion.

E. Customary international law and the Australian legal

system
The domestic operation of customary international law (‘CIL’) raises
questions completely different from those relating to the domestic
operation of treaties. This is due, in large part, to the fact that CIL is not
entered into in the same way as a treaty. CIL is not simply ‘entered’
into by the Commonwealth Executive but rather it develops through
practice and a commitment to be bound. It is for this reason that the
great concern over the executive usurping the law making function of
parliament in a Westminster system of government, displayed in the
treaty transformation process, does not have the same prominence in
relation to the transformation of CIL. In fact such a concern for the
primacy of parliamentary law making seems confusing and
inappropriate when rationalising the domestic operation of CIL.

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Admittedly, the Executive has a role to play in facilitating, stimulating

and evidencing CIL, however it does not create CIL through the same
consensual process it uses to create treaties. Customary international
law is the product of a dynamic and complex system of international
relations. With this in mind and remembering that the great fear of the
Westminster tradition is that the direct application of treaties would see
executive law making usurp the role of parliament one is lead to
question: ‘what complaint does the Westminster tradition have with the
direct application of CIL?’ which is not something the executive creates.
The greatest concern regarding any law that is not made by parliament
in a democratic system is the legitimacy (including the accountability of
the makers) of the law making process. Therefore the obvious concern
regarding the direct application of CIL is with respect to its legitimacy
as law viz. who has made this law, under what process/circumstances,
and why should it be applicable in Australia?
While there is no rule saying that a customary norm must be universally
accepted it is common that fundamental principles of CIL gain
widespread acceptance. It is this acceptance of CIL by the international
community as a principle of international constitutionalism that sets CIL
apart from treaties and starts to explain why CIL may have a stronger
claim to automatic incorporation in domestic law. If the norm of CIL in
question is so important and fundamental to international society and
the continued existence of states and their peoples then widespread
acceptance should have some impact on how we act domestically. The
distinguishing factor then of CIL is that in many cases it represents
fundamental principles of international constitutionalism vital to all
aspects of life which take legitimacy from their popular acceptance
amongst states. Thus a norm of CIL if it is widely accepted should have
a strong claim to be automatically incorporated in domestic law. Why
should the accepted practice of our state and many other states on
fundamental issues not be part, without more, of our domestic law?
The position in Australia appears to be different from that in the UK
(see above). Whereas in the UK a clear rule of customary IL is
automatically part of their domestic law, unless there is domestic law to
the contrary (the incorporation doctrine), this is not the case in
Australia.1 It is clear now that the transformation doctrine applies in
Australia, although the High Court has yet to rule definitively on the
issue. According to Professor Gillian Triggs: ‘where there is no relevant
implementing legislation, a rule of customary international law will have
no domestic effect unless it is incorporated directly into municipal law
or unless a court refers to it in the normal process of judicial

1 See Reicher H (ed), Australian International Law: Cases and Materials, Law
Book Co., Sydney, 1995, Chapter 2, pp 96-101, and in particular, Chow Hung
Ching v The King (1949) 77 CLR 449.

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reasoning.’2 Professor Ivan Shearer has also stated: ‘In Australia...it

seems that customary international law is but a source of national law, to
be transformed or adopted by way of legislation or an act of judicial
choice, not an automatically incorporated part of that law..’.3 How a
court ‘refers to [customary IL] in the normal process of judicial
reasoning’ (Triggs) or is adopted by ‘an act of judicial choice’
(Shearer), was explained in reading 4.1 above. The possible basis for
courts doing this will be discussed in more detail in the next subsection.
The Australian High Court in its recent decisions has not specifically
addressed the standing of customary international law in the domestic
system. Older cases suggest that customary international law is a source
of the common law and this tends to indicate that customary
international law must be transformed by the legislature or the judiciary
into domestic law: Chow Hung Ching v The King (1948) 77 CLR 449
at 462, 477, cf. Williams J in Polites v The Commonwealth (1945) 70
CLR 60 at 80-1. Commonwealth legislation transforming CIL would be
supported by the external affairs head of legislative power:
Commonwealth v Tasmania (1983) 158 CLR 1 at 131.
In your prescribed text there is an extract from a very interesting case in
the Federal Court called Nulyarimma v Thompson (1999) 165 ALR
621, CB pp 124-126. In this case the effect of CIL in the Australian
legal system directly became the main issue.

Activity 4.10 1. What was the major issue in this case?

2. What was the ultimate decision in the case? Is it possible for the
decision to be overturned?
3. In your own words, try to explain what was the difference between
the majority view of Wilcox J and the minority view of Merkel J.

Feedback 1. The major issue was whether genocide could be considered to be

a crime under Australian law even though there was no Australian
statute at the time making it a crime. This argument relied upon
the argument that the prohibition against genocide, being a rule of
CIL, had become part of Australian common law either because
the doctrine of incorporation applied, or if the doctrine of

2 ‘Customary International Law and Australian Law' in Ellinghaus M et al (eds)

The Emergence of Australian Law, Butterworths, 1989, p!376 at p!392
3 'The Implications of Non-Treaty Law-Making: Customary Law and its
Implications', in Alston P & Chiam M (eds), Treaty-Making and Australia,
Federation Press, 1995, p!93 at p!93

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transformation applied, the crime should be adopted into the

common law by the court.
2. The court by a two to one margin held that genocide was not a
crime under the common law of Australia. Being a decision of the
Federal Court, of course it can be overturned by the High Court.
The applicants have appealed the decision to the High Court, and
as at the date of writing the appeal has not yet been heard (it is
presently also unclear if leave to appeal has been granted by the
High Court). Many writers agree that it would be a good thing if
the High Court could make a definitive pronouncement on the
issue of whether and under what circumstances customary IL can
be a part of Australian law.
3. Both ‘sides’ did accept that the doctrine of transformation did
apply to the relationship between IL and the Australian legal
system. However, they did differ on whether the adoption of the
crime of genocide should occur under this doctrine, with the
majority holding that only a specific act of parliament can do this,
while the minority argued that it could be adopted into the
common law by the court.

F. The transformation of international legal principles by

the Australian judiciary
While international treaties will continue to be transformed by
parliament through domestic legislation, the issue here is the role of the
judiciary in transforming or being guided by international law in the
strong or weak phases of their law making. This issue is most relevant
in Australia as we have no constitutionally guaranteed bill of rights. The
lack of a bill of rights has encouraged a rights conscious legal
profession and society in general to find comfort in international human
rights instruments to which Australia is a party.
The issue as to what effect these rights can have in Australia demands
an appreciation of the dynamics of judicial law making. It is unlikely
that the parliament will transform these rights through legislation into
domestic law as that would be limiting their own power. Therefore it is
the judiciary’s transformation of the rights or secondary use of them as
textual interpretation aids that promises to animate the legal profession
for many years to come.
The key question then is what justifies judges transforming CIL into
common law or using international law generally as an aid to
interpretation in human rights cases in particular? Modern writers
explain that judicial law making is severely restricted by history and
prevailing morality. What judges can hope to achieve in their law
making activities is very much constrained by past events and the values
of the community in which they sit.

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Recently though the High Court of Australia has been more open to
international influences. It no doubt sees these influences as much more
acceptable than it did 30 years ago. One reason for this is that
Australian culture has become much more aware of and related to
international society and events. This awareness makes for a more
internationally alert society and in particular an internationally sensitive
legal profession. If international law was foreign to the Australian
culture it would not work as justification for legal reasoning: Higgins R,
Problems and Process: International Law and How We Use It Oxford
University Press, Oxford, 1994, pp 205-218.
It is because Australian culture has become globalised that Australian
lawyers are now starting to appreciate international law and particularly
human rights norms. This growth of an international culture has made it
possible for the judges to convince the community that their law making
is acceptable. In fact, international law has become a justification for
judicial law making in the weak or strong sense. Where international
law, particularly customary international law on human rights, reflects
the values of the Australian community there is strong justification for
judges transforming that law into common law. See Fitzgerald B,
‘International Human Rights and the High Court of Australia’ (1994) 1
James Cook University Law Review 78; Bayefsky A & Fitzpatrick J,
‘International Human Rights in United States Courts: A Comparative
Perspective’ (1992) 14 Michigan Journal of International Law 1;
Brennan J in Mabo supra at 42; Gaudron J In Teoh supra at 375-6;
Gaudron J in Kruger supra; Kirby J in Newcrest Mining (WA) Ltd v
Commonwealth (1997).
In summary then it might be said that in the future Australian judges
will be more willing to justify their legal reasoning and law making on
principles of international law as Australian society has become in large
part an international culture.

6. Topic summary

Theories
The idea of ‘transformation’ requires that before international law can
have any effect within the domestic system, it must be ‘transformed’
into domestic law. Normally this transformation is achieved through
legislation or judicial decision. This theory is in the main associated
with a ‘dualist’ conception of the relationship between international law
and domestic law – the two systems of law are separate and operate on
different planes.
The idea of ‘incorporation’ generally supposes that international law
and domestic law are simply two components of a single entity called
‘law’; domestic and international versions are merely particular

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manifestations of the same thing. This theory is in the main associated

with a ‘monist’ conception of the relationship between international law
and domestic law – they are part of one system of law that operate on
the same plane, and in case of conflicting rules, the international rule will
prevail over the domestic rule.

National law on the international plane

A national law can influence international law in the following ways:
• it can form part of state practice that might contribute to the
articulation of a rule of customary international law, and
• it can contribute to the content of ‘general principles of law’ as
found in article 38(1)(c) of the ICJ’s Statute, and
• it can be used a source on international law, and due to all these
factors
• it can thus help to clarify the content of international law.

International law on the domestic plane

Each state’s legal system may define its relationship with international
law in whatever way it chooses. This is because while international law
generally requires a state to carry out its international obligations, it does
not demand that states do this in any particular way, and thus how each
state chooses to do this will vary.
In many states (such as Australia and the United Kingdom) neither the
Constitution nor any act of parliament sets out or establishes the
relationship between IL and their legal system. In such situations
therefore it has traditionally been up to the courts to determine what
exactly that relationship is. In the United Kingdom, its entry into Europe
has provided much more scope for European law to directly influence
British law, particularly with respect to human rights. The European
Convention on Human Rights and Fundamental Freedoms 1950 has
direct influence in British courts via the Human Rights Act 1998 (UK),
although the Convention still does not allow courts to invalidate any
legislative enactment contrary to its terms.
Both the Constitutions of South Africa and the United States have
provisions that attempt to define the relationship between international
law and their respective domestic legal systems.

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The relationship between international law and the

Australian legal system
Legal Principle 1: International law is not part of Australian domestic
law unless it is transformed through a recognised law making process:
Teoh
Legal Principle 2: International law is an important supplement and
context for the interpretation, administration and implementation of our
statutory law: Teoh
Legal Principle 3: The Commonwealth Executive headed by the Queen
and her representative in Australia, the Governor General, holds the
power pursuant to ss 61 and 62 of the Constitution to enter treaties on
behalf of the people of Australia.
Legal Principle 4: Treaties must be transformed into domestic law
through legislation in order to preserve the law making function of
parliament under the Westminster system of government: Simsek v
McPhee (1982) 148 CLR 636 & Teoh .
Legal Principle 5: The Commonwealth parliament pursuant to the
external affairs power has the legislative power to transform any ‘bona
fide’ treaty into domestic legislation, subject to express or implied
limitations in or arising from the Constitution: Richardson supra.
Legal Principle 6: Customary international law while a source of
domestic law is not automatically part of domestic law and must be
transformed through legislation or judicial decision into domestic law:
Chow Hung Ching v The King (1948) 77 CLR 449 at 462, 477.
Legal principle 7: Transformation of customary international law
through judicial lawmaking is only legitimate where the international
principle is commonly accepted, fits into the Australian legal culture and
reflects the values of the Australian community: per Latham CJ in
Polites supra, Brennan J in Mabo supra, Mason CJ and Deane J and
Gaudron J in Teoh supra.
Legal Principle 8: Domestic legal texts so far as the language of the
domestic text permits should be interpreted in a manner that is
consistent with international law binding on Australia: Teoh.
Legal principle 9: Australia’s ratification of an international agreement
can create a legitimate expectation that the executive will act in
accordance with the treaty: Teoh.
Legal Principle 10: Domestic law cannot be used to justify a breach of
international law. (On treaties see Articles 27 and 46 Vienna Convention
on the Law of Treaties 1969)

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7. Further reading
Dixon M, Textbook on International Law, 5th ed, Oxford University
Press, 2005, Chapter 4.
Collier J, ‘Is International Law Really Part of the Law of England?’
(1989) 38 ICLQ 924.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR
273.
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142
ALR 331.
Kruger v Commonwealth (1997) (regarding international law) 146 ALR
126.
Horta v Commonwealth (1994) 123 ALR 1.
Newcrest Mining (WA) Ltd v Commonwealth (1997) 147 ALR 42
Kirby J only.
Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529.
Dietrich v The Queen (1992) 177 CLR 292.
Nulyarimma v Thompson (1999) FCA 1192.
Fitzgerald BF, “Horta v Commonwealth: A case in the High Court of
Australia Concerning the Validity of the Timor Gap Treaty and its
Domestic Implementation” (1995) 44 International and
Comparative Law Quarterly 643.
Fitzgerald BF “International Human Rights and the High Court of
Australia” (1994) (1) James Cook University Law Review 78.
Horrigan and Fitzgerald “International and Transnational Influences on
Law and Policy Affecting Government” in Horrigan (ed)
Government Law and Policy (1998) 1.
Doyle J & Wells B, ‘How Far Can the Common Law Go Towards
Protecting Human Rights?’ in Alston P (ed), Towards an Australian
Bill of Rights, Human Rights and Equal Opportunity Commission &
Centre for International and Public Law, 1994, pp 107-122.
Kirby M, ‘The Role of the Judge in Advancing Human Rights by
Reference to International Norms’ (1988) 62 Australian Law
Journal 514.
Kirby M, ‘The Role of International Standards in Australian Courts’, in
Alston P & Chiam M (eds), Treaty-Making and Australia:
Globalisation versus Sovereignty?, Federation Press, 1995.
Mason A, ‘International Law as a Source of Domestic Law’, Chapter 7
in Opeskin B & Rothwell D (eds), International Law and
Australian Federalism, Melbourne University Press, 1997.

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Sir Anthony Mason, ‘Future Directions in Australian Law’ (1989) 13

Monash LR 1.
Daglish K, ‘The Crime of Genocide: Nulyarimma v Thompson’ (2001)
50 International and Comparative Law Quarterly 404.

8. Revision questions and feedback on the

relationship between international law and
the Australian legal system
1. Which arm of government enters treaties for Australia?
The Executive arm, which is headed by the Queen.
2. Are they automatically binding on Australian courts?
No, they must be transformed through domestic legislation to be
become domestic law, although even without such transformation
they may influence statutory interpretation and public
administration.
3. How are treaties generally transformed into domestic law? Which
arm of government performs this task?
Through legislation made pursuant to s51 (29) Constitution. The
legislature, normally the Federal Parliament, performs this task.
4. Which arm of government can transform customary international
law into domestic law?
The legislature has power to do this, but most often it is
transformed by the judiciary.
5. Is this legitimate in terms of political accountability? What is the
justification for such an action?
It can only be justified on the basis that the CIL being
transformed is widely accepted throughout the world and that
our domestic law cannot totally ignore the international legal
context in which it sits. This is a key issue for debate. If you are
an internationalist this rationale may not upset you, but if you
disagree with globalisation then this rationale will not be
acceptable to you. Which argument would you support?
6. In what ways can international law that has not been transformed
into Australian law by legislative or judicial act be used by
Australian judges and administrators?
Non transformed international law can be used as an aid to
statutory interpretation and in public administration: see Teoh
case.
In relation to public administration the legal role of non
transformed international law is unclear after the
Downer/Williams statement.

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7. At a deeper level, why is international law relevant to Australian

law?
As we move more and more into an era of globalisation we
cannot ignore the international context in which we live. Do you
agree?

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