INTERNATIONAL LAW

GLUP3094

INTRODUCTION

TERMINOLOGY

The

term international law was first

introduced by Jeremy Bentham.

Alternative

terms:
Law of nations
Law among nations
Inter-state law

TRADITIONAL DEFINITION
International

law is the law that governs States

in their relations with one another.

Only

States?
Then what about:
- Inter-governmental organizations (IGOs),
- Non-governmental organizations (NGOs),
- Transnational corporations (TNCs),
- Private individuals?

OPPENHEIMS DEFINITION
International

law is the body of rules which

are legally binding on States in their
intercourse with each other. These rules are
primarily those which govern the relations of
States, but States are not the only subjects of
international law. International organizations
and, to some extent, also individuals may be
subjects of rights conferred and duties imposed
by international law.

VON GLAHNS DEFINITION

International

law is: [A] body of principles,

customs, and rules recognized as effectively
binding obligations by sovereign States and
such other entities as have been granted
international personality.

NATURE OF INTERNATIONAL LAW

International

Legal System National Legal

Systems
National Legal System: Government exercises
sovereign authority
Three

sovereign functions of a Government:

Legislative (Law making)
Judicial (Law determination)
Executive (Law enforcement)

CONT.
International

law deals with States that are

sovereign and equal.
Sovereignty: supreme authority above which
there is no other higher authority and thus no
higher sovereign authority above States.
ILS is a horizontal legal system
No

World Government and the principal organs

of the UN cannot be equated to the three
sovereign organs of a state.

CONT.
The

UN General Assembly is not a world

legislature (it has no legislative power; it cannot
make IL and its decisions are not binding).

The

International Court of Justice (ICJ) can

operate only on the basis of the consent of
States to its jurisdiction (it is not compulsory
for states to submit cases).

The

law enforcement capability of the UN

Security Council is limited (veto power and
political motivations).

WEAKNESSES OF
INTERNATIONAL LAW
(a)

Lack of effective institutions

(b)

Lack of effective enforcement machinery

(c)

Lack of political will

INTERNATIONAL LAW AS LAW

(1)

Theoretical approach

(2)

Practical approach

(1) THEORETICAL APPROACH

Command

Theory

John

Austin: LAW as a command backed by

sanctions and enforced by a sovereign political
authority.

Contention:

As there was no sovereign political

authority above the sovereign States
international law was not true law but positive
international morality.

What

about: Eternal Law? Divine Law?

Customary law?

CONSENSUAL OR POSITIVIST
THEORY

The

consensual or positivist theory focuses on the

actual practices of the States as the foundation of
international law.

of States
Express Consent [by means of Treaties]
Implied Consent [by means of Custom]
This theory is highly persuasive and prevalent view in
mainstream legal thinking of the present day.
BUT: Consent is not absolute.
Consent

Jus

Cogens: A peremptory norm of general

international law from which no derogation is
permitted.

NATURAL LAW THEORY

Law

is discovered from nature by way of human

reasoning

Positive

Law: Actual practice of States

Natural Law: Moral principles and Natural
justice which are regarded as correct at all times,
in all places and in all situations.
Example

of natural law: human rights,

international crimes and jus cogens.
International law is predominantly dependent on
State practice or consent.

UBI SOCIETAS, IBI JUS

Brierly:
Law can only exist in a society, and there can be no
society without a system of law to regulate the relations
of its members with one another. If then we speak of the
law of nations, we are assuming that a society of
nations exists. In any case, the character of the law of
nations is necessarily determined by that of the society
within which it operates, and neither can be understood
without the other.
Sir Gerald Fitzmaurice:
The international society recognises international law
as binding upon them as members of the society.

(2) PRACTICAL APPROACH

Henkin:
Almost

all nations observe almost all principles

of international law almost all of the time.

State

practice: International law is persistently

recognized as Law.
States not only recognize the rules of
international law as legally binding but affirm
the fact that there is a law among them.
States continuously conclude and implement
international treaties and establish as well as
operate international organizations.

CONT.
Serious

efforts are being made to codify

international law (the ILC).

Modern

national constitutions usually contain

references to international law (e.g. Art. IV,
Section 2 of the US Constitution; Art. 25 of the
German Constitution; etc.

Rules

of international law are accepted as legally

binding by States because they are useful to
reduce complexity and uncertainty in
international relations.

CONT.
What

are the motivations for the States to

observe international law?

Internal
External

motivations
pressures

INTERNAL MOTIVATIONS
Sense

of obligation

States

feel obligated to honour rules of IL

because these rules are based on their consent.

Lotus

case: The rules of law binding upon States

emanate from their own free will expressed in
conventions or by usages.

CONT.
Common

self-interest

The

international community: more

interdependent.

Stable
It

and to maintain law and order.

is in the interest of every State to comply

with.

CONT.
Political

and economic cost

State can lose much through a violation of

international law.

Besides

the legal sanctions, there are political and

economic costs to be paid, e.g., loss of credibility,
loss of trust and reduction in foreign trade.

EXTERNAL PRESSURE

The

primary external pressure is the

enforcement of the law by the victim State (and
sometimes by the international community).

ENFORCEMENT OF INTERNATIONAL
LAW
Diplomatic

protests

The

traditional method of enforcing

international law.

Such

protests commonly include demands that

the wrong done be appropriately righted.

PEACEFUL MEANS
Article

2(3) of the Charter of the UN obliges

Member States to settle international
disputes by peaceful means.

Art.

33; The peaceful means are: negotiation,

enquiry, mediation, conciliation, arbitration,
judicial settlement, etc..

JUDICIAL ENFORCEMENT
(1) Recourse to the ICJ: Jurisdiction is based on consent;
if a matter is referred to it, its judgment is binding on
the parties and must be carried out. [Arts. 59, 94]
(2) National courts. The decision will definitely be
binding on the parties.

Inter-State Claim
Inter-State claim (claim by the alleged victim State
against the State allegedly responsible for the violation).
Usually the victim State seeks reparation (remedies) in
the forms of restitution, compensation and satisfaction.

COERCIVE MEANS (SANCTIONS)

(1)

non-military means

(2)

military means

(1) NON-MILITARY MEANS

Self-help
This exists as a means of enforcement in all legal
systems.
In modern societies, self-help has become the exception
rather than the rule.
But in international law it has remained the rule.
In the past, States might even go to war to enforce their
legal rights.
However, this is no longer lawful by virtue of Article 2(4)
of the UN Charter which prohibits the threat or use of
force.
The only lawful use of force in self-help is the right of
self-defence under Article 51 of the Charter.

COUNTERMEASURES

(a)

Retorsion

(b)

Reprisals

(A) RETORSION
It

is a lawful but unfriendly act against an

unfriendly act of another States e.g.,
(1)

disruption of diplomatic ties;

(2) embargoes;
(3) withdrawal of voluntary aid
programmes.

(B) REPRISALS
These

are acts which would normally be illegal

but which are rendered legal by a prior illegal act
committed by the other State. [Illegal act against
an illegal act]

E.g.,

if State A confiscates property belonging to

State Bs citizens, State B can retaliate by doing
the same to the property of State As citizens.

Other

examples of countermeasures:
(1) suspension or temporary non-performance of
a treaty obligation;
(2) seizing or freezing of the assets of a State.

CONT.
Restrictions

on Countermeasures (reprisals)

(1) Must not involve the use of military force;

[Art. 2(4) of the UN Charter]
(2) Must not involve any departure from certain
basic obligations, e.g. jus
cogens; fundamental human rights.
(3) Must be commensurate with the injury
suffered (principle of proportionality).

(2) MILITARY MEANS

Article

2(4) of the UN Charter prohibits the use

of force.
There are two views on the interpretation of
Art. 2(4): permissive and restrictive.
The better view is that the prohibition is
absolute.
Therefore, there can be no exceptions to the
prohibition except those expressly mentioned in
the Charter itself.

CONT.
There

are only two exceptions in the Charter for

lawful use of force:
(1)

Right of self-defence under Article 51 of

the Charter; and

(2)

Enforcement measures by the SC under

Chapter VII of the Charter.

PUBLIC INTERNATIONAL LAW

&
PRIVATE INTERNATIONAL LAW
International law is sometimes referred to as public
international law to distinguish it from the so-called
private international law.
The term private international law denotes rules of
conflict of laws.
Disputes may arise from transactions which involve a
foreign element.
A foreign element may be involved, for example, if one of
the parties is a foreign national, if a contract is made in a
foreign country or if a tort is committed in a foreign
country.

CONT.
In

such a situation, it is not fair for a local court to

decide according to (lex fori) the local law only and it
has to take into consideration the relevant foreign
law.
The local court has to settle a choice of law problem
(a choice between local law (lex fori) and a foreign
law).
Choice of law is to be done by referring to rules of
conflict of laws and these rules have come to be
known as private international law.
The term seems to be a misnomer because it is
actually not a branch of international law.
In fact, private international law is merely part of the
domestic law of a State.

RELATIONSHIP BETWEEN
INTERNATIONAL LAW AND MUNICIPAL
LAW

The question of the relationship between international

and national law can give rise to many practical
problems.
How does an international court decide an issue involving
a rule of national law?
How do rules of international law operate in the national
legal systems?
Are they treated by States on the same footing as their
own national law?
In the case of a conflict between international and
national law, which law prevails?

INTERNATIONAL AND NATIONAL LAW:

DOCTRINAL DEBATE
[Monism vs. Dualism]
The monist theory
The monist theory suggests that international law and
national law are simply two components of a single body of
knowledge called law.
They form part of one and the same legal order.
There may be a conflict between the two systems.
If this happens, international law prevails.
All monists accept the superiority of international law
over national law.
Furthermore, monism indicates that rules of
international law can be directly applied in domestic
sphere of States.

THE DUALIST THEORY

On the other hand, the dualist theory assumes that
international law and national law are two separate legal
systems which exist independently of each other.
International law regulates the relationship between
States whereas national law regulates the rights and
duties of individuals within a state.
In case of conflict between the two, International courts
apply international law and national courts apply
national law.
Since the debate over monism and dualism can only lead
to controversy, most writers believe that preference
should be given for practice over theory.
It is therefore more useful to turn now to the practical
aspect of how international law is applied in various
national legal systems.

THE ROLES OF MUNICIPAL RULES

IN INTERNATIONAL LAW
Obviously,

the purpose of international

tribunals is to decide matters according to
international law; but this does not mean that
questions of national law are irrelevant.

National

law may be an issue before

international courts and tribunals.

CONT.
(1)

National law as sources of

international law

The

decisions of national courts and certain

principles of national law may be used as
sources of international law.

The

International Court can use these sources

under Art. 38(1)(c) and (d) of its Statute.

Example:

Barcelona Traction Co case (the

concept of limited liability of a company)

CONT.
(2)

In case of conflict, international law

prevails

Can

a State plead its national law as an excuse

for violating international law?

The

basic rule: A State cannot plead a rule of or

a gap in its own national law as a defence to a
claim based on international law.

CONT.
Article

27 of the VCLT: A party may not invoke

the provisions of its internal law as justification
for its failure to perform a treaty.

There

is consistent judicial and arbitral

authority for the rule.

Alabama

Claims Arbitration: Britain could not

rely on the absence of domestic legislation as a
reason on non-fulfilment of its obligations of
neutrality in the American civil war.

CONT.

Exchange of Greek and Turkish Populations case: a

State which has contracted valid international obligations
is bound to make in its legislation such modifications as
may be necessary to ensure the fulfilment of the
obligations undertaken.

La Grand case (2001) ICJ Rep. 466: Failure by the US to

give notification to two German nationals of their right to
consular protection.
Held: Although national authorities were complying with
their national law it was a violation of International law
apology is inadequate US must review and reconsider
the conviction and sentence.

APPLICATION OF INTERNATIONAL LAW

IN THE NATIONAL LEGAL SYSTEMS
[Doctrines of Incorporation vs. Doctrines of Transformation]

Doctrine of Incorporation
International law is regarded as automatically
incorporated in municipal law.
In other words, IL is ipso facto part of municipal law and
may be applied as such by the municipal courts.
Doctrines of Transformation
The doctrine of transformation indicates that
international law is not ipso facto part of municipal law.
A rule of IL will become part of ML only after the
transformation of it into municipal law by means of a
statute or an Act of parliament.

CONT.
Although

scholars have put forward various

theories, they are not much useful in examining
the relationship.

For

each State, the starting point for any

examination of the relationship between
international and national law is its own
constitution.

Constitutions

of most States normally include

provisions relating to how international law is
treated in their national legal system.

THE BRITISH PRACTICE

(1) Application of Customary International Law
The British practice as to customary international law is
mainly based on the doctrine of incorporation.

Blackstone declared in his commentaries:

The law of nationsis here adopted in its fullest extent by
the common law, and it is held to be a part of the law of the
land.

In Buvot v Barbuit, Lord Talbot emphatically stated that

the law of nations, in its full extent, was part of the law of
England.

CONT.

R v Keyn (The Franconia)

A German vessel collided with and sank an English vessel within
three miles of the English coast.
Held: The trial was lacked of jurisdiction because there was no
sufficient evidence that 3-mile limit had established as a rule of
CIL.
West Rand Central Gold mining Co. v R
A rule of customary international law would be acknowledged and
applied by the English courts provided that it could be proved by
satisfactory evidence.
Chung Chi Cheung v R
In this landmark case Lord Atkin, stated: The court acknowledges
the existence of a body of rules which nations accept amongst
themselves. On any judicial issue they seek to ascertain what the
relevant rule is, and having found it, they will treat it as
incorporated into the domestic law, so far as it is not inconsistent
with rules enacted by statutes or finally declared by their
tribunals.

CONT.
In

this famous dictum, the learned judge

formulated two qualifications to the application of
the doctrine of incorporation. To be part of
English law, a customary rule must not be
inconsistent with:
(1)

Statutes; or
(2) Prior judicial decisions of final authority.

(2) APPLICATION OF TREATIES

Treaty-making

power in the UK is an executive

function coming within the prerogative power of
the Crown (Executive).

On

the other hand, the legislative power is vested

solely in the Parliament (Legislature).

Consequently,

a treaty does not automatically

become part of English law in the absence of a
legislation made by the Parliament.

As

far as treaties are concerned, the practice of

the UK is based on the doctrine of
transformation.

CONT.
As

a general rule, there must be an enabling act

made by the Parliament for a treaty to have legal
effect in the UK.

To

be more specific, treaties which:

(1) involve any alteration of the common or
statute law; or
(2) affect the rights and obligations of British
subjects definitely require an enabling Act of
Parliament to have legal effect in the UK.

CONT.

The Parliament Belge

Parliament Belge collided with an English ship. The defendants
argued that their ship was not amenable to the jurisdiction of
the English court because firstly she was the property of the
King of the Belgians and secondly, the Queen, by a convention
with the King of the Belgians, has placed this ship in the
category of a public ship of war.
Judgment by Sir Robert Phillimore:
(1) Since the Parliament Belge was a ship conveying mails and
carrying commerce, she could not be regarded as a public ship
which was exempted from process of law.
(2) Affirming the principle that treaties that affected private
rights required the sanction of the legislature to be operative
Held: The convention had not been confirmed by any statute of
the Parliament and hence had no legal effect in the UK.

CONT.
Judgment

by the Court of Appeal:

The CA reversed the decision on the ground that
the immunity sought was available at customary
international law and hence at common law.
[The CA based its decision on the old absolute
immunity theory. Phillimores ruling was based
on the modern restrictive immunity theory].
The

ruling at first instance was that a treaty

cannot become part of the UK law unless there is
an enabling Act of Parliament. If a treaty is
transformed by statute into UK law, it has full
legal effect.

CONT.
This

is usually done by means of an enabling Act

to which a schedule is attached containing the
provisions of the treaty.

For

example, the Diplomatic Privileges Act 1964

enacts the Vienna Convention on Diplomatic
Relations 1961:
The treaty is an integral part of the Act and the
treaty and the Act are as one.

APPLICATION OF INTERNATIONAL
LAW IN MALAYSIA
The

Federal Constitution of Malaysia, unlike

the constitutions of many other States, is
entirely silent on the crucial questions.

(1) APPLICATION OF CUSTOMARY

INTERNATIONAL LAW
Section

3 (1) of the Civil Law Act, 1956:

Save in so far as other provision has been made

or may hereafter be made by any written law in
force, the Court shall apply the common law of
England and the rules of equity as administered
in England at the date of the coming into force of
this Act; Provided always that the said common
law and rules of equity shall be applied so far
only as the circumstances of the Federation
and their respective inhabitants permit and
subject to such qualifications as local
circumstances render necessary.

CONT.
The

doctrine of incorporation is the main British

approach in respect of CIL.

CIL

is deemed to be part of the English common

law in so far as it is not in conflict with a statute
or a judicial decision of final authority.

According

to section 3(1) of the Civil Law Act, the

English common law is to be applied by the
Malaysian courts in the absence of any written
law (i.e. statutes) and so far as the circumstances
of the Federation and its inhabitants permit and
render necessary.

CONT.

The logical consequence is that by virtue of section 3(1) of

the Civil Law Act, CIL, as applied in the UK as part and
parcel of the common law, is applicable in Malaysia, to the
extent that it is not contrary to the Malaysian statutes and
judicial decisions of final authority and subject to such
qualifications as local circumstances render necessary.
Article 160 of the Federal Constitution defines:
law to include written law, the common law in so far as
it is in operation in the Federation , and any custom or
usage having the force of law in the Federation.
Malaysian courts apply CIL as part and parcel of common
law.

(2) APPLICATION OF INTERNATIONAL

TREATIES
The

Federal Constitution of Malaysia contains no

provision which says that international law shall
be deemed part of the law of the land or that
treaties shall be the laws of Malaysia.

Article

74 of the Federal Constitution:

Subject Matter of Federal and State Laws;
(1) Parliament may make laws with respect to
any of the matters enumerated in the Federal
List or the Concurrent List (that is to say, the
First or Third List set out in the Ninth Schedule)
.

CONT.
Federal

List (Ninth Schedule))

1. External Affairs, including

(a) Treaties, agreements and conventions with
other countries and all matters which bring the
Federation into relations with other countries;
(b) Implementation of treaties, agreements and
conventions with other countries;

CONT.
From

the wordings of Articles 74 and the Federal

List read together, it is clear that the Federal
Parliament has the exclusive power to make laws
relating to external affairs (including treaties,
agreements and conventions)

It

is equally clear that Parliament has no power

to conclude (that is, to sign, ratify, or accede to)
international treaties and that it is the exclusive
domain of the Executive.

CONT.
The

power of the Executive

Article

39: The executive authority of the

Federation shall be vested in the Yang di-Pertuan
Agong and exercisableby him or by the Cabinet
or any Minister authorized by the Cabinet.

Article

80(1): The executive authority of the

Federation extends to all matters with respect to
which Parliament may make laws.

CONT.
By

virtue of the Federal List, matters with

respective to which Parliament may make laws
include external affairs which in turn include
treaties, agreements and conventions with other
countries.

Therefore,

the executive authority of the

Federation extends to the making or conclusion of
treaties, agreements and conventions with other
countries.

Therefore,

in Malaysia the treaty-making power is

vested in the Federal Government.

THE PRACTICE OF OTHER STATES

(1)

Commonwealth and common law

countries

In

commonwealth or common law countries, the

law is basically similar to that of the UK.

See,

for example, Canada, Australia, New

Zealand, and Pakistan.

CONT.
(2)

The practice of the USA

CIL

is normally considered as part of the law of

the US so far as it is not in conflict with a statute
or a judicial decision.

In

the US, the treaty-making power is not vested

solely in the executive. The legislature also plays
a decisive role.

Article

II, Section 2 of the US Constitution: The

President shall have power, by and with the
advice and consent of the Senate, to make
treaties, provided two-thirds of the Senators
present concur.

CONT.
Again, according to Article VI, Section 2, This
Constitution, and the laws of the US , and treaties
made under the authority of the US, shall be the
supreme law of the land.
In principle, therefore, treaties made in accordance with
the Constitution are, like the Constitution itself and the
Federal statutes, the supreme law of the land.
However, in practice, a distinction is made by the United
States Supreme Court between self executing and nonself-executing treaties.
Self-executing treaties are those which do not expressly or
by its nature require legislation to make them a source of
law in the US. They are automatically part of the
American law
Non-self-executing treaties, on the other hand, do require
such legislation.

CONT.

(3) Continental countries

Generally, continental or civil law countries substantially
incorporate international law in their national constitutions.
Germany
Article 25 of the Basic Law (Constitution) of Germany provides
that: The general rules of international law shall be an integral
part of federal law. They shall take precedence over the laws and
directly create rights and duties for the inhabitants of the federal
territory.
Greece
Article 28(1) of the Greek Constitution provides that: The
generally accepted rules of international law, as well as
international conventions from the time they are sanctioned by
law and enter into force, shall be an integral part of internal
Greek law, and they shall prevail over any contrary provision of
law.

CONT.
(4) Other States that fully incorporate international
law
A few States explicitly incorporate both treaties and
customary international law in their national legal systems.

Republic of Korea
Article 6 (1) of the Constitution of the Republic of Korea
provides that: Treaties duly ratified and promulgated in
accordance with this Constitution and the generally
recognized rules of international law shall have the same
effect as domestic laws of the Republic of Korea.

Japan
Article 98 (2) of the Constitution of Japan provides that:
The treaties concluded by Japan and established laws of
nations shall be faithfully observed.