Lecture 1 & 2

Introduction

&

Nature of Public International Law

CONTACT HOURS

• Lecture : 2.0 hrs/week

• Tutorial : 1.0 hrs/week

COURSE OUTCOMES

• At the end of the course, students must be able to :

• 1. Identify the general principles of public international law. (C1, P1, A1)

• 2. Analyse various problems that arise in the major areas of international law. (C4)

• 3. Apply the legal principles to the factual situation. (C3)

• 4. Explain the ways in which the principles of public international law are applied in contemporary issues in international law. (C2)

COURSE DESCRIPTION

• This course introduces the principles of public international law and presents the essential elements of the international legal system through a range of topics and to address international law from a variety of perspectives.

• This course promotes the development for critical thinking and problem-solving skills, values, ethics and moral professionalism in the area of public international law.

COURSE CONTENT

1. Nature of International Law

• 1.1.Definition of international law

• 1.2.Whether international law is law

• 1.3.Historical evolution of international law

• 1.4.International law and municipal law

2. Sources of International Law

Article 38 of the Statute of the ICJ

– Treaty

– Customary international law

– General principles of law recognized by civilized nations

– Judicial decisions and juristic writings

– Other sources

3. Law of Treaties

– Classification of treaties

– Formalities and the making of treaties

– Unilateral acts

– Reservation of treaties

– Objection to reservation

– Interpretation of treaties

– Termination of treaties

4. Subjects of International Law

• International personality

• Criteria of statehood

• Recognition– constitutive theory

– Declaratory theory

• Other subjects of international law– International organization

– Liberation movement and insurgent group

– Individual

5. Territorial Sovereignty

• 5.1 Occupation• 5.2 Prescription• 5.3 Cession• 5.4 Conquest• 5.5 Accretion• 5.6 The right of self determination• 5.7 Antarctica

6. Jurisdiction

• 6.1 Territorial principle

• 6.2 Nationality principle

• 6.3 Protective principle

• 6.4 Passive personality principle

• 6.5 Universality jurisdiction and international crimes

• 6.6 Extradition

7. Immunity

• 7.1 Sovereign Immunity

• 7.1.1 Public act

• 7.1.2 Private act

• 7.2 Diplomatic immunity

• 7.2.1 Inviolability of person

• 7.2.2 Inviolability of property

• 7.2.3 Immunity of members of the diplomatic mission

• 7.3 Immunity of consular

8. State Responsibility

• 8.1 What is State Responsibility

• 8.2 The International Law Commission Draft Articles on State Responsibilities 2001

• 8.3 Attribution of conduct

• 8.4 Circumstances precluding wrongfulness

• 8.5 Legal consequences of Internationally wrongful Act

• 8.6 Countermeasures

9. Diplomatic protection

• 9.1 The International Law Commission Draft Articles on Diplomatic Protection 2004

• 9.2 Nationality

• 9.3 Exhaustion of Local Remedies

• 9.4 The treatment of aliens

• 9.5 Expropriation of property belongs to foreigners

TEACHING METHODOLOGY

• Lectures

• Tutorials

• Case study/ Problem-based learning

• Active Learning

ASSESSMENT

• a. Continuous Assessments

Test: 10%

Assignment: 20 %

• b. Final Examination

Covering the whole syllabus : 70 %

• Total: 100 %

RECOMMENDED TEXT

• (The latest edition of the following)

– Dr. Tunku Intan Mainura Tunku Makmar Nizamuddin, Selected International Treaties for Public International Law Students (Malaysia: Lexis Nexus, 2013) (Allowed to be brought into Exam Hall – Original Only: Photocopy/Duplicate are not allowed)

– Tunku Sofiah Jewa, Public International Law, (Malaysia: Pacifica Publication, 2nd edn, 2012)

– M. Shaw, International Law (Cambridge: Cambridge University Press, 5th edn., 2004)

– I. Brownlie, Principles of Public International Law, (Oxford: Oxford University Press, 6th edn., 2003).

– R. Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994)

– D.J Harris, Cases and Materials on International Law (Sweet & Maxwell)

– O’Brien, John, International Law (Cavendish Publishing, 2001)

– Cassese, A. International Law (Oxford University Press, 2005)

Treaties

• Charter of the United Nations

• Vienna Convention on the Law of Treaties 1969

• Vienna Convention on Diplomatic Relations 1961

• Rome Statute of the International Criminal Court

• International Covenant on Civil and Political Rights

• Responsibility of States for Internationally Wrongful Acts 2001

• The Statute of the International Court of Justice

• (All these treaties can be found in Dr. Tunku Intan Mainura Tunku Makmar Nizamuddin, Selected International Treaties for Public International Law Students (Malaysia: Lexis Nexus, 2013) .

How To Study Public International Law

• PIL is a unique species of law and as such creates problems for students more familiar with the functioning of conventional forms of law.

• Although analogies in content do exist, PIL is unlike the law of tort or the law of contract. In particular, PIL lacks a coherent and comprehensive body of judicial doctrine and does not operate in terms of the doctrine of precedent.

• Its unconventional and problematic nature are elements which are inherent in the functioning of the legal system itself.

• Students studying PIL have no alternative but to address these problems and acquire skills and techniques which vary considerably from those used in the study of other areas of law.

• PIL often cannot be explained without a basic knowledge of contemporary world politics.

• The development of this subject is fundamentally dependent upon surrounding extra-legal circumstances.

• Many students confronted with the application of rules of international law have difficulty ascertaining the exact nature of applicable rules. The proper application of rules to factual situations in international relations is an acquired skill in itself.

• In this regard, the particular methodology used in approaching problems of international law becomes acutely important. Different skills must be developed to accommodate the fact that international law operates at the interface of law and politics.

• In order to fully understand the subject of international law, it is important to acquire a comprehensive and overall framework of the subject and to understand how the different areas of the law relate to each other.

• International law is characterised by an extensive overlapping in topics. Points brought up in one topic, such as the sources of international law or the use of force by states, continuously recur throughout other area of the subject. This is to be anticipated since international law is a dynamic and complex subject. An overall general knowledge of each individual subject matter will ultimately facilitate the acquisition of an extensive and detailed knowledge of each individual subject matter.

• Once the basic skills and methodology have been acquired in approaching problems involving questions of international law, the task of identifying and applying law to facts is increasingly simplified.

• These skills may best be acquired through a study and appreciation of the techniques involved in answering examination questions.

Shall we begin?

Map of the World

Continents

Which state shall have the jurisdiction to try this case?

• Airplane belongs to state Australia.

• Departing from state Brazil.

• Destination to state China.

• Enroute via state Denmark.

• Crime started at state Ghana.

• Crime ended at state China.

• Accused is a citizen of state Etophia.

• Victim is a citizen of state Finland.

Nature and Basis of International Law

• International law is divided into two types:

a) Public International law, and

b) private international law.

• The word ‘international law’ actually refers to ‘ Public international law’, unless its specifically stated as ‘private international law’.

Public International Law v. Private International Law

• Public International Law governs the activities of governments in relation to other governments.

• Private International Law governs the activities of individuals, corporations, and other private entities when they cross national borders.

“International law is the body of rule: which are legally binding on states in their intercourse with each other.”

(Oppenheim’s International law, Ninth Edition, vol. 1, PEACE, (ed. Sir Roberts Jennings and Sir Arthur Watts) (Pearson Education, Universal Law Publishing Company, 1996) ).

“International law consists of certain rules of conduct which modern civilized states regard as being binding on them in their mutual relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country and which they also regard as being enforceable by appropriate means in case of infringement.”

(W. E. Halls, International Law, London: Stevens and Sons. Ltd., 1950, 8).

“Law of Nations or international law may be defined as the body of rules and principles of actions which are binding upon civilized states in their relations with one another.”

• (J. L. Brierly, The Law of Nations, Edited by Humphrey Waldock, (London: oxford University Press, 1963).

• In Queen v. Keyn (1876), Lord Coleridge, CJ., defined,

“International law as the law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another.”

(cited by TW Balch “Arbitration as a term of international law” , 1915)

• In S. S. Lotus Case. PCIJ series A, No 10 (1927), international law is defined as

“the principles which are in force between all independent nations”.

(cited by Verma, An Introduction to Public International Law, 1).

• In West and Central Gold Mining Co. Ltd v. King (1905) 2KB 91,International law was defined as

“the form of the rules accepted by civilized States as determining their conduct towards each other and towards each other’s subjects.”

(cited by Verma An Introduction to Public International Law, 1).

• Starke has stated that:

“International law consists of a system of laws, the majority of which applies to states but also regulates activities of individuals and international organizations when it becomes the concern for the international community.”

(Cited by Chamara Sumanapala, International Law: Conventions and Customs, 2010).

• Schwarzenberger defines international law as the

“body of legal rules which apply between sovereign states and such other entities as have been granted international law personality.”

(G. Schwarzenberger , International law, vol. 1.. (London: Stevens and Sons Ltd, 1957), 3).

• Vyshimsky:

“International law is the collection of rules regulating the relations between states in the course of their struggle and cooperation, expressing the will of the ruling classes in these states and protected by compulsion carried out by states individually or collectively”.

• Whiteman:

“International law is the standard of conduct, at a given time, for the states and other entities subject hereto”.

• International law emerges because states found it convenient to try to regulate certain aspects of their relations (between states and states) in accordance with mutually accepted rules of law.

Functions of International Law

• Law is an instrument without which people would be unable to live together in society or in community.

• Law is a tool to regulate the conduct of the individual in the states.

• Similarly under international law, the community of states need a law in order to regulate the relationship amongst them.

• International law, like law in general, has the object of assuring the co-existence of different interest, which are worthy of legal protection.

• International law has the function to protect the subjects of international law from being the victims of ‘unfairness’ by other subjects.

• In the Lotus case, the court held that the rule of international law exist:

‘in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims’.

Is international law, law?

• John Austin states that, before a rule can become ‘law’, it should posses the following characteristics:

a) It should be in the form of order.

b) The order should be from a superior to an inferior.

c) The order should be backed by sanction (there must be a threat).

• Austin submission:

International law is NOT law.

• Reason: In international law, there is no world Parliament to issue orders and it has no police force to enforce any regulations.

• Therefore he concludes that international law should be regarded as ‘international morality’.

• Sir Fredrick Pollock disagrees with Austin’s view.

• Reasons:

a) Doctrines of international law are founded on legal ideas, not merely on ethical ideas.

b) ‘international morality’ refers to ‘international comity’ or ‘international goodwill’. Thus different from international law.

• Malaysian Perspective:

Government of Malaysia does regard international law as law.

During the opening of the Malaysian Parliament few days before Malaysian was admitted as member of United Nations, Malaysia’s King declares that Malaysia intends to play its part in the works of many international bodies which operates under the auspices of United Nations.

• Application of international law to ever changing situations in the world has resulted in continuous restructuring of law.

• With significant developments relating to the establishment of international institutions and organizations after World War II, the scope of international law has also changed.

• Now the international law is said to govern the relations between states and international organizations and between international organizations and private persons.

• A more contemporary definition therefore expands the traditional notions of international law to confer rights and obligations on intergovernmental international organizations and even on individuals, such as given by Prof. J. G. Starke, and Schwarzenbergers.