03 relationship between il ml

7/31/2019 03 Relationship Between IL ML

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International law governs relations between states

Municipal law governs the relations of individualswithin a state

So: are the two systems encompassed within a single unified system, or

constitute independent, inherently dissimilar systems

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Three main issues in this topic:

1. Important to know precisely how the rules of onesystem will affect the decision-making process inthe courts of another

2. How/whether national law affect decisions beforeinternational courts

3. How/whether international law affects decisionsbefore the national courts

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Three theories evolved: Monism Dualism

Different subject matter

Based on these theories, two doctrines emerged: Doctrine of incorporation

Doctrine of transformation

These formed the basis of the relationship between IL& ML

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The law is seen as a single entity of which the nationaland international versions had manifested Thus, the law is one entity with two components: IL &

ML

Believes that IL & ML: operates in the same sphere of influence , and

is concerned with the same subject matter

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As IL & ML operates concurrently over the samesubject matter, there may be conflict between the twosystems ie IL may require one result while the provision of ML

gives another

In such situation: International Law prevails eg: IL of human rights stipulates no person may be

imprisoned without trial

However, the opinion as to the reason internationallaw is superior, differs

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International law derives from the practice of states;

National law derives from the state as established byinternational law

Hans Kelsen sees the superiority of IL as a direct consequence of his

basicnorm ofalllaw ie states should behave as they customarily have behaved

International law is, therefore, a higherlegal order

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Herach Lauterpacht (former ICJ Judge)

State itself is seen as a collection of individuals, ratherthan a legal entity in its own right

National law is often used topersecute Thus, national law cannot be trusted to protect

individuals

International law, therefore, prevails as it is theguarantor of individual liberty

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There is a hierarchy of legal orders

Natural law is at the summit, followed by internationallaw, then national law

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Natural Law

International Law

National Law


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Denies that IL & ML operate in the same sphere But does agree that both deals with the same subject

matter

Tripel IL regulates the relations between states whereas ML regulates the rights and obligations of individuals

within states

If international law is breached, this is not a matter for

national courts If an individual, in the national court, is denied rights

guaranteed under international law the court appliesnationallaw

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IL does not invalidate domestic law and vice versa

Rights and obligations under one system cannotautomatically be transferred to the other

Each system applies its own laws

Rationale for Dualism:

To prevent the Executive from being able to create law

for its citizens without observing the domesticconstitutional requirements necessary for law creationLord Steyn in Re Mc Kerr[2004] UKHL 12

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Fitzmaurice & Anzilotti: Denies that IL and ML operates in the same sphere

Denies that the subject matter is the same

Should be something in between

IL and ML do not contradict each other as a system oflaw The obligations, however, may

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Thus, if the obligations contradict, then which law isto prevail will depend on the rules of privateinternational law This would normally mean that national courts give

effect to national law obligations unless an internationalrule says otherwise

Thus, in practice, it reflects dualism

The core difference is that the two theories (dualismand different subject-matter) have a difference of

opinion regarding the systems of law

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The use of international law in national courts areexplained in terms of the doctrines

There are two: Doctrine of incorporation, and Doctrine of transformation

Which doctrine is used will depend on the States ownnational law ie its constitution

The use of the doctrine does not indicate the State

being either a monist State or a dualist state It only shows the method that the States use when

implementing international law in national courts

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A rule of IL becomes part of ML without the need forexpress adoption by the local courts or legislature

An automatic adoption

Once it is established that the international law exists,and is relevant to the case, it will be applied by thenational courts unless it is clearly precluded by municipal law

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IL only becomes part of ML when it has been expresslyadopted by the State

IL is not automatically apart of ML In short:

National court does not apply a particular rule of IL untilthat particular rule has been deliberately transformed

into ML in the appropriate manner Eg by legislation

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International law in Municipal courts

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Rights and obligations arising from treaties Must be transformed into national law

By an Act of Parliament

Treaties Concluded by the Crown under the Royal Prerogative

Cannot change the substance or nature of individualrights guaranteed under common law or statute

Exceptions: treaties of cession or those pertaining toconduct at war

Position in UK reflects the dualist approach

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HOL confirmed that a treaty to which Her Majestys

Government is a party does not alter the laws of the UK

Except to the extent that a treaty becomes [transformed]into the laws of the United Kingdom by statute, the courts

of the United Kingdom have no power to enforce treaty

rights and obligations at the behest of a sovereigngovernment or at the behest of a private individual

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Apply the rules appropriate to the interpretation of an

international convention Unconstrained by technical rules of English law or

precedent In essence, court was interpreting the treaty itself

If treaty had more than one language, it may bereferred to

Even if the other language had not been formallyenacted by the Act Majority view: only if there was ambiguity

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Once transformed by statute into UK law, it has fulllegal effect To the extent of its enactment

Eg: Vienna Convention on Diplomatic Relations

Diplomatic Privileges Act 1964

Interpretation of the Act should automaticallyencompass interpretation of the treaty

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No reference should be made to such treaties toadjudicate on the substantive claims eg to identify the legal rights

It can only be used as evidence to the factualbackgroundof the parties dispute

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Arab Monetary Fund v Hashim

[1991] 1 All ER 871

The Arab Monetary Fund is an internationalorganisation established by an international treaty, towhich UK is not a party. The Monetary Fund had been

incorporated into the domestic law of the United ArabEmirates (UAE), a sovereign state that UK recognises.

Q: Is the Arab Monetary Fund a recognised

international personality in the UK?

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Yes

But not because of the unenacted treaty

Because it was incorporated in the domestic law of

UAE, a sovereign state that the UK enjoys fulldiplomatic relations The Monetary Fund as a legal person of the UAE, could

be recognised by the UK

The normal conflict of law rules: gave UK recognitionto legal entities created by the laws of other states

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Constitutionally, an unenacted treaty has no legaleffect in UK law Cannot create rights nor obligations for parties in

national law

Its substantive provisions cannot be made subject oflitigation in national courts

Q: What if the unenacted treaty is a part of Statute?

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An Act may be intended to give effect to terms of a treaty

Eg: Custom and Excise Act 1952

Convention on Valuation of Goods for Custom Services

1950

Did not contain the treaty nor make reference to it

Q: Can the treaty be referred to when interpreting the

Act?

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Salomon v Commissioners of Customs and Excise

[1967] 2 QB 116

Diplock LJ developed three principles:

1. If the terms of the Act are clear and unambiguous

The Act must be given effect to by the court even ifthey do not carry out the obligations which are

found in the treaty

Parliament sovereignty It may be presumed that Parliament does not intend to

legislate contrary to international obligations But it can do so

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2. If it is not clear and reasonably capable of more than

one meaning Unenacted treaty is relevant

If meaning ambiguous i.e. meaning that implements treatyvs meaning that does not implement treaty

Common law should be applied, whenever possible, in a

manner consistent with those obligations

3. Rule 2 applies in cases of ambiguityirrespective ofwhether the Act makes reference to the Treaty

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CIL may form part of the law of the UK under thedoctrine of incorporation

Unless there is a contrary statutory provision, rules ofCIL may be operative in the national legal system

However Must bear in mind the basic constitutional precept of

that system

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Mortensen v Peters Any rule of CIL would have to yield to the clear words of

any Act of Parliament

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There is no provision about the doctrine ofincorporation in the Federal Constitution

Federal Constitution Article 74(a) Parliament may make laws in respect of

implementing treaty/convention : Federal/Concurrent Article 76(1)(a) Parliamentary make laws in respect of

implementing treaty /convention: State Article 76(2) exceptions Art 169 international agreement before Merdeka

Civil Law Act S.3: cut off dates

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Govt of the State of Kelantan v The Govt of theFederation of Malaya and Tunku Abdul Rahman Putra

Al-Haj [1963] MLJ 355

On 9 July 1963, the Governments of the Federation of

Malaya, UK, Sarawak, North Borneo (Sabah) andSingapore signed the Malaysia Agreement (aninternational agreement), that brought Singapore,Sabah and Sarawak into the federation. Federal

Parliament then passed the Malaysia Act to amend theFederal Constitution to include the three new statesand to provide for matters in connection with theadmission.

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On Sept 10, the Government of Kelantan began an action

against the federal government for declarations that theMalaysia Agreement and the Malaysia Act were null and

void; or were not binding on the State.

Some of the arguments: The proposed changes needed the consent of each of the

constituent states including Kelantan, and this had notbeen obtained

The Sultan of Kelantan should have been made a party tothe Malaysia Agreement

The federal parliament had no power to legislate forKelantan in matters that the state could legislate for on itsown.

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Main issue:

whether Parliament or the executive government had

trespassed in any way the limits placed on their powersby the constitution

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1. Was the Malaysian Agreement signed by the properpeople?

Art 39 executive authority of the Federation is vested in power

invested in the YDA, and exercisable by him/Cabinet/any

Minster authorised by Cabinet Art 80

Executive authority of the Federation extends to allmatters with respect to what Parliament may make laws,

which includes treaties and agreements

Here, Malaysia Agreement signed for the Federation ofMalaya by the PM, DPM and four other members ofCabinet

Nothing in Constitution requires consultation with StateGovernment or Ruler of any State

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2. Federal parliament had no power to legislate forKelantan in matters that the state could legislate for onits own

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By Article 76(1)(a):

Parliament may make laws with respect to any matterenumerated in the State List, but only as follows, that is to say

for the purpose of implementing anytreaty, agreement orconvention between the Federation and any other country, or

anydecision of an international organizationof which the

Federation is a member

but, is subject to Article 76(2)

the State Government needs to be consulted before any Bill is

introduced into Parliament when it involves: Islamic law, or the custom of the Malays, or native law or custom in the States of Sabah and Sarawak

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In short:

1. It is the Federal Government that has the right toenter into international agreements/treaties: Article

76(1)(a) Even if it falls under the state list

But consultation of State government is required in certainmatters: Article 76(2)

2. Treaties/agreements prior to Merdeka or MalaysiaDay? Article 169

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International agreements, etc., made before Merdeka Day

169. For the purposes of Clause (1) of Article 76

(a) any treaty, agreement or convention entered into before Merdeka Daybetween Her Majesty or her predecessors or the Government of the UnitedKingdom on behalf of the Federation or any part thereof and anothercountry shall be deemed to be a treaty, agreement or convention betweenthe Federation and that other country;

(b) any decision taken by an international organization and acceptedbeforeMerdeka Day by the Government of the United Kingdom on behalf of theFederation or any part thereof shall be deemed to be a decision of aninternational organization of which the Federation is a member;

(c) (c) in relation to the States of Sabah and Sarawak paragraph (a) and (b)shall apply with the substitution of references to Malaysia Day for thereferences to Merdeka Day and of references to the territories comprised in140 those States or any of them for the references to the Federation or anypart thereof.

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Does Malaysia follow UK position of incorporation forcustomary international law?

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PP v Narongne Sookpavit

Narogne and the other 22 accused are Thai fishermen.They were about 3 miles from shore of Tanjung Ayam,Johore. They were apprehended by the MalaysianNaval Patrol: found in possession of fishing appliances

in contravention of Regulation 3(b) of the Fisheries(Maritime) Regulations 1967, punishable under s.11(1)of the Fisheries Act 1963.

Defence: exercising the right of innocent passage andnegotiating a route that had been used since timeimmemorial (the only route to take to get toSingapore)

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1. With regards to the possession of fishing appliances:

Regulation 3(b) No person shall have in his possession on board a vessel

any fishing appliances or any part thereof S.11(1) Act

any person who fails to comply with, the provisions of thisAct or any regulations thereunder shall be guilty of an

offence

Evidence clearly established that they were in possession ofthe fishing appliances without a licence within Malaysianterritorial waters 57


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2. Rights of innocent passage?

Article 14 Convention of the Territorial Sea1. ships of all States shall enjoy the right of innocent

passage through the territorial sea

2. Passage means navigation through the territorial sea

for the purpose either of traversing that sea withoutentering internal waters, or of making for the highseas from internal waters

3. Includes stopping and anchoring; but only in so far as

the same are incidental to ordinary navigation or arerendered necessary byforce majeure or by distress

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4. Passage is innocent maintains peace, good order orsecurity of the coastal state

5. Passage of foreign fishing vessels shall not beconsidered innocent if they do not observe such lawsand regulations as the coastal state may make andpublish in order to prevent these vessels from fishing

in the territorial sea

This is said to correspond with customary law It may be customary law of England, or

Customary international law

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Note, argument based on two aspects:

1. Treaty Convention on the Territorial Sea and the Contiguous

Zone 1958

2. Customary law It may be customary law of England, or

Customary international law

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Before a convention can come into force in Malaysia,Parliament must enact a law to that effect

No Malaysian statute has been cited to show thatArticle 14 had become part of Malaysian law

The Geneva Convention on the Territorial Sea 1958 bythe Emergency (Essential Powers) Ordinance No.7 of1969 Stops at Article 13

Inference that Article 14 was not intended to beimported into the country

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Inadequate evidence to show that the innocent

passage through Malaysian territorial water is a right,

and if so, what are its precise limits

Even if there was such a right of innocent passage as

per customary international law as it is applied in

England/ customary English law

It could not be innocent as it contravened Malaysian

domestic legislation

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THUS

Clearly seen that customary international law can onlybe applied if It is codified into legislation, or

Via common law

For common law, requires s.3 Civil Law Act Cut-off date: April 1956

Persuasive only

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