Customary International Law In Australia

According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned

According to Article 293(1) of the UNCLOS, the tribunal has complete jurisdiction over arrested vessels can sometimes adhere to customary international law that may be inconsistent with the UNCLOS (Chigara 435). On September 8, 1998, the United Nations General Assembly adopted the Agreement on Cooperation and Relationship Between the United Nations and the International Tribunal for the Law of the Sea (Chigara 437). This agreement officially established a relationship between the International Tribunal for the Law of the Sea and the International Court of Justice (Chigara 437). Consequently, the International Tribunal for the Law of the Sea became part of dispute settlements and has an observer status in the General Assembly (Chigara 437). The inclusion of the International Tribunal on the Law of the Sea in the United Nations General Assembly and the International Court of Justice implies that the United Nations Convention on Laws of the Sea will be an important source of law in cases that pertain to maritime boundaries and

However, according to Article 53 of the Vienna Convention on the Law of the Treaties 1969, the treaty cannot be contrary or attempt modify the preexisting peremptory norms, which are otherwise known as “jus cogens” laws: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character (Dixon 39).

“Jus cogens” laws (which literally translate to “compelling laws”) are fundamental rules that supersede treaties and customs. According to the Restatement on Foreign Relations of the United States, these sacred principles prohibit genocide, torture and other forms of cruel and unusual punishment, slave trade or slavery, murder, demeaning treatment or punishment, unreasonable detention, force, and systematic racism in the international community (Criddle and Fox-Decent 331). Both customs and treaties cannot violate the peremptory