pil brief fact

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1 NATURE OF INTERNATIONAL LAW 1.1 Definition: What is International Law? [Textbook, pp. 1-2 ] The term “international law” first introduced by Jeremy Bentham. Alternative names: - 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”. This traditional definition does not reflect reality in modern times. New actors have emerged on the international plane: - public international organizations (IGOs), - non-governmental organizations (NGOs), - transnational corporations, - private individuals. Oppenheim: “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.” 1.2 Public and Private International Law [Textbook pp. 2-3] 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’, coined by some jurists to denote 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. 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. To put it another way, 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. 1.3 Distinction between international law and national legal systems [Textbook: pp. 3-4] International law is fundamentally different from national legal systems. In a national legal system, there is a Government that can exercise supreme authority (or sovereignty). A Government of a State has three sovereign functions: law making (legislative), law determination (judicial), and law enforcement (executive). International law is concerned with States that are sovereign’ and ‘equal’. Sovereignty: ‘supreme authority’ above which there is no other higher authority. There is no higher authority above sovereign States. International law is, therefore, a sort of horizontal legal system. The UN General Assembly is not a world legislature. The International Court of Justice (ICJ) can operate only on the basis of the consent of States to its jurisdiction. The law enforcement capability of the UN Security Council is limited. 1.4 INTERNATIONAL LAW AS ‘LAW’ [Textbook: pp. 4- 8] Is international law really ‘law’? 1.4.1 Theoretical approach (1) Command theory John Austin questioned the true legal character of international law. Austin’s attitude towards international law was based on his theory of law in general. According to Austinian theory, law was defined as a command enforced by a sovereign political authority. [Also known as ‘command theory’] “As there was no sovereign political authority above the sovereign States international law was not true law but ‘positive international morality’”. The command theory - not complete: it does not cover customary law. Everywhere there is customary law side by side with statute law. (2) Consensual or positivist theory The ‘consensual’ or ‘positivist’ theory regards actual practice of States as the foundation of international law. The basic idea of this theory is that the binding character of international law flows from the ‘consent’ of States. Consent may be given expressly by means of treaties and impliedly by means of custom. This theory is highly persuasive and represents the mainstream legal thinking of the present day.

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some facts of Public international law as reference for students

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    NATURE OF INTERNATIONAL LAW 1.1 Definition: What is International Law? [Textbook, pp. 1-2 ] The term international law first introduced by Jeremy Bentham. Alternative names: - 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. This traditional definition does not reflect reality in modern times. New actors have emerged on the international plane: - public international organizations (IGOs), - non-governmental organizations (NGOs), - transnational corporations, - private individuals. Oppenheim: 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. 1.2 Public and Private International Law [Textbook pp. 2-3]

    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, coined by some jurists to denote 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.

    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.

    To put it another way, 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.

    1.3 Distinction between international law and national legal systems

    [Textbook: pp. 3-4]

    International law is fundamentally different from national legal systems.

    In a national legal system, there is a Government that can exercise supreme authority (or sovereignty).

    A Government of a State has three sovereign functions: law making (legislative), law determination (judicial), and law enforcement (executive).

    International law is concerned with States that are sovereign and equal.

    Sovereignty: supreme authority above which there is no other higher authority.

    There is no higher authority above sovereign States.

    International law is, therefore, a sort of horizontal legal system.

    The UN General Assembly is not a world legislature.

    The International Court of Justice (ICJ) can operate only on the basis of the consent of States to its jurisdiction.

    The law enforcement capability of the UN Security Council is limited.

    1.4 INTERNATIONAL LAW AS LAW [Textbook: pp. 4-8] Is international law really law? 1.4.1 Theoretical approach (1) Command theory John Austin questioned the true legal character of international law. Austins attitude towards international law was based on his theory of law in general.

    According to Austinian theory, law was defined as a command enforced by a sovereign political authority. [Also known as command theory]

    As there was no sovereign political authority above the sovereign States international law was not true law but positive international morality.

    The command theory - not complete: it does not cover customary law. Everywhere there is customary law side by side with statute law.

    (2) Consensual or positivist theory

    The consensual or positivist theory regards actual practice of States as the foundation of international law.

    The basic idea of this theory is that the binding character of international law flows from the consent of States.

    Consent may be given expressly by means of treaties and impliedly by means of custom.

    This theory is highly persuasive and represents the mainstream legal thinking of the present day.

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    One difficulty, however, is that consent does not explain the existence of all legal obligations.

    For example, jus cogens. (3) Natural law theory

    According to this theory, law is derived from the application of the law of nature as a matter of human reasoning.

    This theory is in direct contrast to the consensual or positivist approach.

    While positive law is based on the actual practice of States, natural law is based on objectively correct moral principles.

    As the method of law-creation in international law is primarily dependent on State practice or consent, natural law theory cannot play an important role.

    Traces of natural law: human rights, international crimes and jus cogens.

    (4) Ubi societas, ibi jus

    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. [Brierly]

    If we apply this maxim to the situation of international law, international law is necessary for the international society to function, and because it is necessary it is binding.

    Pragmatic and straight forward. 1.4.2 Practical approach [See Textbook p. 6]

    According to State practice, international law is constantly 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 int. treaties and establish and operate international organizations.

    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)

    Rules of international law are accepted as legally binding by States because they are useful to reduce complexity and uncertainty in international relations.

    1.4.3 Weaknesses of international law [See Textbook pp. 7-8]

    Not a perfect system. There are weaknesses. (a) Lack of effective institutions (b) Lack of effective enforcement machinery: [international law has its own enforcement system, which is unique and essentially different from that of national legal systems].

    (c) Lack of political will: States - reluctant to comply with international law when their vital interests are at stake. 1.4.4 Why do States observe international law?

    Almost all nations observe almost all principles of international law almost all of the time. [Henkin]

    What are the motivations for the States to observe international law?

    States have internal motivations as well as external pressures to comply with international law.

    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.

    Common self-interest

    The international community: more interdependent.

    Needs international law to be stable and to maintain law and order.

    It is in the interest of every State to comply with. Political and economic cost

    A 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).

    1. 5 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.

    1.5.1 Peaceful Means of Enforcement [See Textbook pp. 9-10]

    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. (2) National courts. The decision will be binding on the parties. Inter-State Claim

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    Inter-State claim - the principal remedy (claim by the alleged victim against the State allegedly responsible for the violation).

    Usually the victim seeks reparation in the forms of restitution, compensation, or satisfaction .

    5. 2 Coercive Means of Enforcement (Sanctions) [See pp. 10-14]

    There can be two types of coercive means or sanctions:

    (1) non-military means; and (2) military means or sanctions involving the use of force. Non-Military Means [See Textbook pp. 11-13]

    Self-help exists as a sanction 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 (2) 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: The remaining forms of self-help are countermeasures, such as retorsion and reprisals. Retorsion is a lawful but unfriendly act against an unfriendly act of another States for example, rupture of diplomatic ties. Reprisals are acts which would normally be illegal but which are rendered legal by a prior illegal act committed by the other State. E.g., if State A confiscates property belonging to State Bs citizens without any justification, State B can retaliate by doing the same to the property of State As citizens. Restrictions on Countermeasures (reprisals) [See Textbook p. 12 for details of the FIVE restrictions] (1) Directed against wrong-doer State; (2) Aims at cessation of wrongful act and reparation; (3) Must not involve the use of military force; (4) Must not involve any departure from certain basic obligations, e.g. jus cogens; (5) Must be commensurate with the injury suffered (principle of proportionality). Air Services Agreement case [See Textbook p. 13 for the details of the case]

    (2) Military means (use of force) [See Textbook pp. 13-14 and also Chapt. 15, pp. 442-448]

    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.

    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. [See Textbook Chapter 17, pp. 494-497 for the details; also need to study major incidents.] 1.4 Development of International Law (Outline only) [See Textbook pp. 14-21]

    Origin of international law

    Islamic international law: The Shariah; As-Siyar. Muhammad As-Shaybani - Kitab As-Siyar Al-Kabir; Hugo Grotius - De jure belli ac pacis (On the Law of War and Peace) (1625)

    The formation of the present-day international law: Eurocentric?

    Attitude of the developing States towards international law

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    2. THE SOURCES OF INTERNATIONAL LAW Formal sources and material sources [Textbook pp. 22-23]

    The formal source is the source from which the legal rules derive its legal validity or the mechanism through which the law comes into being. Its function is to create law (law-creating).

    The material source indicates where the legal rules are located or the place normally a document of some kind in which the substance of the rule can be found.

    2. 1 TRADITIONAL SOURCES OF INTERNATIONAL LAW Article 38 of the Statute of the ICJ: 1.(a) International conventions, whether general or particular, establishing rules recognized by the contesting States; (b) International custom, as evidence of a general practice accepted as law; (c) The general principles of law recognized by civilized nations; (d) Subject to the provisions of Art. 59, judicial decisions and the teachings of the most highly qualified publicists 2. To decide a case ex aequo et bono if the parties agree thereto.

    An authoritative statement of the sources of international law.

    2. 2 TREATIES [Textbook pp. 24-29]

    Art. 38(1)(a): the word convention means a treaty; it is an agreement made between two or more States or other subjects of international law.

    Treaty is a generic term; the Law of Treaties.

    Terminology: treaty, convention, pact, protocol, charter, covenant, accord, statute, exchange of notes, and so on.

    The importance of treaties in international law

    Growing importance of treaties.

    More than 33,000 treaties - registered with the UN (See UNTS).

    International law has expanded enormously by virtue of a great number of treaties made by States.

    Customary international law derives from the practice of States. It is by nature slow in its law-making process. There is lack of precision. It is quite difficult to ascertain their exact contents.

    On the other hand, treaty-making process is relatively faster.

    States may enter into a treaty at any time when they feel that a new rule is required.

    Treaties are the only way by which international law can be made by a deliberate act of States.

    Since treaty law is a kind of written law (jus scriptum), it possesses the merit of considerable precision.

    Law-making treaties and treaty-contracts

    Some writers argued: treaties should be regarded as sources of international law only if they are the so-called law-making treaties.

    A law-making treaty: one concluded by a substantial number of States and stipulates new general rules for future international conduct or abolishes, modifies or codifies existing rules.

    The so-called treaty-contracts are treaties between two or only a few States, dealing with a special matter concerning these States exclusively.

    According to this theory, the so-called treaty-contracts, are not a source of international law but are merely legal transactions.

    It is difficult to accept this idea.

    The so-called treaty-contracts may, as between the parties thereto, constitute particular law.

    Moreover, even bilateral treaties may provide evidence of customary rules.

    The better view, therefore, is to regard all treaties as a source of law.

    2.2.1 Binding force of treaties

    States have the capacity to enter into treaties.

    A treaty is based on consent. Such consent may be expressed by (signature, ratification, accession, etc.).

    Pacta sunt servanda. Article 26 of the VCLT:

    Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

    A treaty not binding on non-parties.

    Pacta tertiis nec nocent nec prosunt: A treaty may not impose obligations or confer rights on a third party

    Certain German Interests in Polish Upper Silesia case, 1926 (PCIJ): a treaty only creates law as between the States which are parties to it.

    Article 34 of the VCLT: A treaty does not create either obligations or rights for a third State without its consent.

    2.2.2 Interaction between treaty law and customary law [pp. 26-29]

    Treaty and custom interact and interrelate in an interesting way.

    (a) Treaty as a material source of customary law: North Sea Continental Shelf cases [See p. 27 for the details]: the role of multilateral treaties as State practice and hence as a material source of CIL binding upon parties and non-parties alike. In the Courts view, a treaty rule may relate to custom in one of three ways: (1) It may be declaratory of custom (that is, it may codify (embody) a pre-existing rule of CIL); (2) It may crystallize custom (that is, by means of a very widespread and representative participation in the treaty, including that of States

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    whose interests are specially affected ); and (3) It may serve to generate a rule of CIL in the future by subsequent practice of States.

    When a treaty codifies existing CIL, the obligations specified in the treaty may be binding on all States, because:

    (1) those States that are parties are bound by the obligations in the normal way since they are parties; and (2) States that are not parties are also bound by the obligations because they are rooted in CIL.

    Many multilateral treaties are a mixture of codification of current customary law and progressive development of that law.

    In that case, parties to the treaty are bound in the normal way by all of the obligations in the treaty, but non-parties are bound by those obligations, which have in fact attained the status of customary law.

    (b) Parallel existence of treaty rule and customary rule: In the Nicaragua case, Nicaragua brought a claim against the US alleging that the latter had used armed force and intervened in its affairs contrary to international law. The US argued that the court had no jurisdiction because they had made a multilateral treaty reservation.

    Nicaragua claimed, however, that the Court had jurisdiction because its claim was also based on rules of customary international law.

    The Court held that the customary rules on the use of force and intervention continued to bind the parties in parallel with the obligations under the UN Charter.

    2. 3 INTERNATIONAL CUSTOM [pp. 29-40]

    Article 38 (1)(b) refers to international custom, as evidence of a general practice accepted as law.

    This provision makes it clear that there are two essential elements of international custom:

    (1) State practice; and (2) acceptance as law or the so-called opinio juris.

    This is reaffirmed by the ICJ in the famous North Sea Continental Shelf cases [See p. 27 for the details]

    In this case, Denmark and the Netherlands argued that the equidistance principle in Article 6(2) of the 1958 Geneva Convention on the Continental Shelf applied because it stated or crystallized customary international law. (FRG was not a party to the Convention).

    The Court rejected their argument and ruled:

    [I]n order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring

    it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. [See p. 30]

    Again, in the Continental Shelf (Libya v Malta) case, (1985) ICJ Rep. 29, the World Court stated that the substance of customary international law must be looked for primarily in the actual practice and opinio juris of States.

    This is the established doctrine, accepted by States, international tribunals and most writers alike.

    Hence, two elements of customary international law are: (1) State practice and (2) opinio juris.

    2. 3. 1 State Practice [p. 30]

    The formation of a customary rule requires a general and consistent State practice.

    Then what acts constitute State practice?

    Generally speaking, the actual words and actions and omissions of States constitute State practice.

    Even silence on the part of States is relevant because passiveness and inaction with respect to claims of other States can produce a binding effect creating legal obligations for the silent State under the doctrine of acquiescence.

    Where to look for evidence of State practice [What are the material sources of custom?] (1) Treaties; (2) Judicial decisions; (3) National legislation; (4)Diplomatic correspondence; (5) Opinions of national legal advisors; (6) Resolutions relating to legal questions of the General Assembly (7) Practice of international organizations.

    Evidence of customary law may also be found in the writings of international lawyers, and in judgments of national and international tribunals, which are mentioned as subsidiary means for the determination of rules of law in Article 38(1)(d) of the Statute of the International Court of Justice.

    2. 3. 1. 1 Generality of practice [p. 31]

    It refers to the number of States which have to contribute towards the customary rule.

    Universality is not required.

    Common and widespread practice among a significant number of States is required in order for a general custom (a rule of general customary international law) to develop (as opposed to a local custom binding only a few States).

    The available practice on the matter will have to be so widespread that any inconsistent practice will be marginal and without direct legal effect.

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    If State practice is substantially divided and conforms to two or more differing solutions on one issue, it is not sufficiently widespread and cannot amount to a general customary rule; of course, a number of local, regional, or special customs may arise.

    (a) The practice of specially affected States [p. 32]

    State practice must include the practice of those States whose interests are specially affected by the subject matter of the rule (North Sea CS case)

    For example, the practice of major maritime powers will have more significance in the formation of rules on the law of the sea than, for example, that of a landlocked State.

    (b) The effect of acquiescence in the formation of international custom

    During the development of a customary rule, a State may react in three possible ways:

    (i) by doing nothing (that is, complete silence or acquiescence); (ii) by objecting to the practice from the outset (that is, the persistent objector); or (iii) by objecting at a later date when the rule has already established as a custom (that is, the subsequent objector).

    Where there has been a widespread and consistent State practice, then silence by others may be interpreted as acquiescence in the development of a rule of CIL.

    All States (whether or not they have participated in the practice) are presumed to have assented to the rule unless they can demonstrate that they have the status of a persistent objector.

    Once a rule of general CIL has been established, the rule is binding upon all States (with the exception of a persistent objector State).

    (c) The practice of dissenting States [p. 33] The Persistent objector

    A State may contract out of a custom in the process of formation.

    When a State object to a particular practice carried on by other States or adopts a contrary practice, it may not be bound by any evolving customary law. This is known as the concept of persistent objector.

    A persistently objecting State is not bound by the eventual customary rule if the State fulfils two conditions.

    First, the objections must have been maintained from the early stages of the rule onwards, up to its formation, and beyond.

    Secondly, the objections must be maintained consistently. Evidence of objection must be clear and there is probably a presumption of acceptance, which is to be rebutted.

    The persistent objector rule appears to have been accepted by overwhelming majority of writers and in the practice of States.

    The authority that supports this rule is the Anglo-Norwegian Fisheries case (1951) ICJ Rep. 3.

    The ICJ made a finding that a coastline delimitation rule put forward by the UK was inapplicable as against Norway, as she has always opposed any attempt to apply it to the Norwegian coast.

    The subsequent objector

    What is the effect of dissent by a State after a custom has been established?

    The general rule is that subsequent objection to an established rule of customary law cannot prevent that rule binding the State.

    However, subsequent objections or derivations may become so widespread that the previous rule is destroyed and replaced by a new rule, as with the extension of the territorial sea from 3 to 12 miles.

    The issue of new States and customary IL [pp. 34-35]

    Newly independent states: clean slate theory

    One of the areas where there have been differences of opinions between developed and developing (Third World) States.

    Developing countries turned to codification and progressive development of IL through treaties.

    Local or regional custom [p. 35]

    There can be a local (or regional) customs amongst a group of States or just two States. The World Court recognized this in the Asylum case (Columbia v Peru) (1950) ICJ Rep. 266.

    The Party which relies on a custom of this kind (i.e. Columbia) must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State.

    In this case, the Court found against the existence of local custom because of lack of evidence. However, the possibility of local custom was confirmed in the Rights of Passage over Indian Territory case (Portugal v India) (1960) ICJ Rep. 6.

    The Court sees no reason why long continued practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States.

    2. 3. 1. 4 Consistency of practice [pp. 36-37]

    State practice must be reasonably consistent. This criterion is satisfied if there is substantial, rather than total or complete, consistency. The ICJ held in the Nicaragua case that:

    The Court does not consider that the corresponding practice must be in absolutely rigorous conformity with the ruleThe conduct of States should, in general, be consistent with such rules

    2. 3. 1. 5 Duration of practice [ pp. 37-38]

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    The duration of practice is a part of generality and consistency.

    A long practice is not necessary and rules relating to airspace and the CS have developed within a short period of time.

    In the North Sea Continental Shelf cases, the ICJ states: the length of time needed will vary from subject to subject and that the passage of only a brief period of time is not necessarily a bar to the formation of customary law

    Can there be an instant customary international law or diritto spontaneo?

    Proponents: Roberto Ago and Bin Cheng.

    This idea is to deny the significance of State practice and the relevance of time factor in the formation of CIL and to rely solely on opinio juris.

    However, it is not in accord with the consistent jurisprudence of the ICJ that State practice is an essential requirement.

    Thus, the possibility of instant custom has remained a matter of dispute.

    2. 3. 2 Opinio juris sive necessitatis [pp. 38-40]

    The second element of an international custom is that the practice must be accepted by States as law.

    It is necessary to examine not only what States do but also why they do it. There is a psychological element in the formation of customary law.

    State practice alone is not sufficient; it must be shown that it is accompanied by a conviction that it is binding upon them as law. (The conviction by States in the obligatory nature of the practice).

    The requirement of opinio juris

    There must be some criteria by which we can distinguish State practice amounting to law from other kinds of State activity, such as acts of comity or courtesy or friendship.

    In the Lotus case, The PCIJ held: opinio juris was an essential element in the formation of customary international law.

    This was reaffirmed in the North Sea Continental Shelf cases and has been accepted ever since.

    Proof of opinio juris (1) The opinio juris simply can be proved by an express, or most often tacit, acceptance of the practice as law by the interested States. The express declaration of a State that a given rule is obligatory (or customary) indicates the clearest evidence as to the States legal conviction. Express acceptance is, however, rather rare. (2) From the judgment of the ICJ in the Nicaragua case, it is clear that opinio juris can be inferred from the actual behaviour of States; it can be gathered from acts or omissions of States. (3) Protest plays a very important role in ascertaining the element of acceptance as law. Absence of protests or objections against a practice (that is, acquiescence) tends to prove that States do not consider the practice as contrary to their interests and also, that they do not object to the formation of a customary rule. Toleration of a practice by other States, considering all relevant circumstances, justifies the presumption of its acceptance as law. (4) Casting an affirmative vote to a resolution of an IO or ratifying an international convention is also a clear commitment in the nature of opinio juris. The Court stated in the Nicaragua case:

    As regards the US in particular, the weight of an expression of opinio juris can similarly be attached to its support of the resolution of the Sixth Int. Conf. of American States condemning aggression and ratification of the Montevideo Convention

    2. 4 GENERAL PRINCIPLES OF LAW [pp. 41-42]

    General principles of law are the legal principles which are accepted in all or most of the national systems of law, in so far as they are applicable to relations of States.

    The main objective: to fill in gaps in treaty law and customary law and to meet the possibility of a non liquet.

    Examples of general principles of law

    (1) The duty to provide reparation in consequence of a wrongful act (Chorzow Factory case), which is accepted in most legal systems. (2) Some of the general principles are based on natural justice common to all legal systems such as the principles of good faith, estoppel or acquiescence, and proportionality. (3) Some are based on legal logic or statutory interpretation, such as the principles of lex posterior derogat legi priori, and lex specialis derogat legi generali. (4) Some can be found in the field of evidence, procedure and jurisdictional questions. E.g., nemo judex in causa sua (no man shall be judge in his own cause), and res judicata . 2. 5 JUDICIAL DECISIONS AND WRITINGS OF JURISTS [pp. 42-43]

    Article 38(1)(d) of the Statute of the Court directs the Court to apply judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

    2. 5. 1 Judicial decisions Article 59 of the Statute says: The decision of the Court has no binding force except between the parties and in respect of that particular case.

    It means that in international law there is no concept of stare decisis, as known in common law system.

    In theory, therefore, judicial decisions do not make law but are declaratory of pre-existing law.

    Although international courts are, in principle, not obliged to follow previous decisions, in practice they almost always take previous decisions into account.

    The ICJ always strive to maintain judicial consistency, referring to previous decisions.

    Therefore, whatever the theory, the Court in practice is involved in the process of law-creation. First, the decision of the Court has created law for the parties. Secondly, a decision of the Court may have a profound impact on customary law.

    Since Article 38(1)(d) is not limited to decisions of the World Court, there is no reason why decisions of other judicial bodies should not be regarded as sources of international law.

    Even decisions of domestic courts, if they deal with matters of international law, may provide important evidence as to the practice of States and a material source from which a rule of customary international law can emerge.

    2. 5. 2 Writings of publicists

    The writings of the most highly qualified publicists are also to be regarded as a subsidiary means for the determination of rules of law.

    However, they are a material or evidential source only.

    Must be careful about the integrity and political background of the writer.

    2. 6 OTHER POSSIBLE SOURCES Having examined the sources mentioned in the Statute of the Court, our concern now is to consider whether there are any other possible sources, which have been omitted in the list. 2. 6. 1 General Assembly Resolutions

    As a rule, General Assembly resolutions are not binding on member states.

    Nevertheless, when they are concerned with substantive questions of IL, there may be an interaction between these and CIL.

    Like treaties, GA resolutions may be declaratory of existing CIL. They may also crystallize State practice so that a new customary rule is created.

    In other words, they may be evidence of State practice and a material source of international law.

    In the Legality of the Threat and Use of Nuclear Weapons case (1996) ICJ Rep. 66, the ICJ stated:

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    The GA resolutions, even if they are not binding, may sometimes have normative value. They can provide evidence important for the emergence of an opinio juris. a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a customary rule.

    2. 6. 2 Equity

    Equity is used here in the sense of considerations of fairness, and reasonableness.

    In Diversion of Water from the Meuse Case, the Netherlands claimed that Belgium had infringed a treaty obligation by building canals that altered the flow of water in the River Meuse. Belgium argued that Netherlands had lost the right to bring the claim because of similar earlier conduct by itself.

    In other words, Belgium relied on the principle of estoppel by conduct.

    Diversion of Water from the Meuse Case Judge Hudson: What are widely known as principles of equity have long been considered to constitute a part of international law, and as such they often been applied by international tribunals .The Court has not been expressly authorised by its Statue to apply equity as distinguished from law Article 38 of the Statute expressly directs the application of general principles of law recognised by civilised nations, and in more than one nation principles of equity have an established place in the legal system. References to equity can be found very often in the judgments of the World Court.

    Examples include the River Meuse case itself (application of equitable principle of estoppel), the Temple of Preah Vihear case (1962) ICJ Rep. 6. (application of acquiescence/and also estoppel).

    In the North Sea Continental Shelf cases: the formulation of equitable principles concerning the delimitation of continental shelf.

    In the Gulf of Maine case. the ICJ stated that the concepts of acquiescence and estoppel in international law follow from the fundamental principles of good faith and equity.

    2. 6. 3 Soft Law

    In recent years a new idea has crystallized in the international community, which has: come to be known as soft law (as opposed to hard law, which makes up international law proper).

    Soft law can be defined as a body of guiding principles, standards, rules of conduct, or declarations of policy, which are not strictly binding norms of law.

    Some say that there exists a considerable grey area of soft law between the white space of law and the black territory of non-law.

    Soft law can be found in treaties not yet in force, in resolutions or declarations of international organizations, or in final acts of international conferences.

    It chiefly relates to human rights, international economic relations, and protection of the environment.

    Examples of soft law instruments: the Helsinki Final Act 1975, the Bonn Declaration on International Terrorism 1978, and the Rio Declaration on the Environment and Development 1992.

    2. 7 THE HIERARCHY OF THE SOURCES [pp. 48-52]

    There is no indication in Article 38 of the Statute of the priority or hierarchy of the sources of international law.

    Apart from a reference to subsidiary means in Article 38(1)(d), we do not know the order in which the sources of law are to be applied.

    When drafting the original text of Article 38, words of priority were included: the sources listed should be considered by the Court in the undermentioned order (i.e., the order (a) to (d) in which they now appear); but ultimately they were deleted.

    Indeed, there is no difficulty if the rules derived from the various sources are complementary.

    However, in cases of conflict it is vital to determine which source shall prevail.

    (1) Jus cogens: the highest in the hierarchy

    A rule of jus cogens is a peremptory norm of general international law: a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted (Art. 53 of VCLT).

    As States cannot derogate from rules of jus cogens through treaties or customary rules, the treaty or customary rules contrary to them are null and void.

    Therefore, rules having the character of jus cogens are the highest in the hierarchy of the sources of international law.

    (2) A treaty binding on the parties to the dispute

    If there is a treaty or convention, which is relevant to the subject matter of the dispute, and to which both parties to the dispute are parties, that treaty or convention will definitely be the law for the Court to determine the dispute.

    This is due to the two factors. First, a treaty is law for the parties to it. Secondly, it will normally be the case that a treaty is lex specialis, and as such prevails over any inconsistent rules of customary law

    Again, in practice, Even though there is a treaty binding on the parties, there may be quite a number of legal issues involved in the dispute. The treaty cannot have solutions to all of them.

    The Court, unavoidably, has to apply customary law to deal with issues in respect of which there are no answers in the treaty.

    The Court will need to apply customary law to interpret the provisions of the treaty.

    Therefore, the Court in most cases apply both treaty law and customary law simultaneously.

    Treaty versus custom

    Treaty and custom, the two major sources, usually are quite complementary.

    A treaty may codify custom or may lead to the development of new customary law.

    On the other hand, States may abrogate a customary rule by concluding a treaty; the latter may again be modified by new customary law.

    Therefore, treaty law and customary law are of equal authority and of equal status (with the exception of the principle of jus cogens).

    In any case, in case of conflict, which law shall prevail? There are some guiding principles in this respect:

    (1) lex posterior derogat legi priori (a later law repeals an earlier law). (2) lex specialis derogat legi generalis (A special law prevails over a general law). (3) Lex posterior generalis non derogat legi priori specialis (a later law, general in nature, does not repeal an earlier law which is more special in nature). Inconsistent treaties

    If there are successive treaties relating to the same subject matter, which treaty shall prevail?

    The answer can be found in Article 30 of VCLT, which is subject to Article 103 of the UN Charter.

    The essence of Article 30 is that when all the parties to the earlier treaty are parties also to the later treaty, then the general rule of lex posterior derogat legi priori applies and the later treaty shall prevail over the earlier treaty.

    Article 103 of the Charter reads: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreements, their obligations under the present charter shall prevail.

    This article is known as clause paramount and it clearly acknowledges the supremacy of the UN Charter over any other treaties. See the Lockerbie case (Provisional Measures) (1992) ICJ Rep. 3, 114. [Textbook pp. 166, 456]

    (3) Customary international law

    If there is no treaty binding on the two parties to a dispute, or if one of the parties to the dispute is not a party to the treaty, then the Court has to rely exclusively on customary international law for the determination of the dispute.

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    (4) General Principles of Law and Other sources

    Since the main function of general principles of law is to fill gaps in treaty law and customary law, it would appear that treaties and custom prevail over general principles of law in the event of conflict.

    Judicial decisions and learned writers are described in Article 38(1)(d) as subsidiary means which suggests that they are subordinate to the other three sources listed: treaties, custom and general principles of law.

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    CHAPTER 3 INTERNATIONAL LAW AND MUNICIPAL LAW

    How does an international ct decide an issue involving a rule of municipal law?

    How do rules of international law operate in the national legal sys?

    Are they treated by States on the same footing as their own municipal law?

    In the case of a conflict btw international law and municipal law, which law prevails?

    THEORETICAL APROACH Monism and dualism 2 main theories on r/ship of IL & municipal law: monist theory & dualist theory.

    1- The monist theory

    IL & municipal law are 2 components of a single body of knowledge called law. They form part of one & same legal order.

    Thr may be conflict btw the 2 sys. If this happens, international law prevails. All monists accept superiority of IL over municipal law.

    Monism indicates that rules of IL can be directly applied in domestic sphere of States. 2- The dualist theory

    Assumes that IL and municipal law are 2 separate legal sys w/c exist independently of each other.

    IL regulates the r/ship btw States whereas municipal law regulates the rights & duties of individuals w/in a state.

    In case of conflict, International cts apply IL & municipal cts apply municipal 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 more useful to turn to attitude of international cts and tribunals to municipal law and then examine the approaches taken by national legal systems towards IL in practice. MUNICIPAL LAW IN THE INTERNATIONAL LEGAL SYS

    Purpose of international tribunals is to decide matters according to IL; bt this does not mean that questions of municipal are irrelevant.

    Municipal law may be an issue b4 international cts and tribunals. (1) Municipal law as sources of IL

    Decisions of national ct & prin of national law may b used as sources of IL.

    International Ct can use the sources u/A38(1)(c) & (d) of its Statute.

    Example: Barcelona Traction Co case (concept of limited liability co) (2) Municipal law v obligation under IL Can a State plead its municipal law as an excuse for violating IL?

    State cannot plead a rule of or a gap in its own ML as a defence to a claim based on IL.

    A27 of VCLT reaffirms this prin: A party may not invoke provisions of its internal law as justification for its failure to perform a treaty.

    Thr is consistent judicial and arbitral authority for the rule: Alabama Claims Arbitration: Britain could not rely on absence of domestic legis as a reason on non-fulfilment of its obligations of neutrality in the American civil war. Exchange of Greek and Turkish Populations case: a State w/c has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure fulfilment of the obligations undertaken. Free Zones of Upper Savoy and the District of Gex Case: France could not rely on her own legislation to limit the scope of her international obligations. La Grand case (2001) ICJ Rep. 466: Failure by US to give notification to 2 German nationals of their right to consular protection. Ct: Although national authorities were complying with their national law it was a violation of International law apology is inadequate US must review & reconsider the conviction and sentence. IL IN NATIONAL LEGAL SYSTEMS In theoretical terms, application of IL in national legal systems is often explained in terms of doc of incorporation & transformation. Doc of Incorporation & Transformation

    doc of incorporation, IL is regarded as automatically incorporated in municipal law. IL is ipso facto part of municipal law & may be applied as such by municipal cts.

    doc of transformation, IL is not ipso facto part of municipal law. A rule of IL will become part of ML only after transformation of it into ML by means of a statute or an Act of parliament.

    doc of incorporation & transformation correspond with monism & dualism respectively.

    In practice, a State may have 2 diff ways of application of IL in view of the fact that there are 2 main sources of IL: (1) customary IL & (2) treaties.

    The British Practice (1) Application of Customary IL

    British prac as to customary IL is mainly based on doc of incorporation. Blackstone declared in his commentaries: The law of nationsis here adopted in its fullest extent by common law, & it is held to be a part of the law of the land. Buvot v Barbuit, Lord Talbot that the law of nations, in its full extent, was part of the law of Eng.

    R v Keyn (The Franconia) A German vessel collided & sank a English vessel w/in 3 miles of English coast. Ct: Trial ct lacked juris because thr was no suff evi that

    3-mile limit hd estab as a rule of CIL. West Rand Central Gold mining Co. v R A rule of customary IL would be acknowledged & applied by English cts provided that it could be proved by satisfactory evi. Chung Chi Cheung v R [1939] AC 160 (PC) Lord Atkin, stated: ct acknowledges existence of a body of rules w/c nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, & having found it, they will threat it as incorporated into domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. In this famous dictum, judge formulated 2 qualifications to application of doc 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. Customary IL v Act of Parliament Mortensen v Peters (1905) 8 F. (J.) 93. Fishery Board for Scotland issued a bylaw under Herring Fishery Act, making an offence to fish in Moray Firth, part of w/c is more than 3 miles frm coast. Appellant, master of a Norwegian ship convicted in a Scottish ct of the above offence for fishing at a place covered by the bylaw bt beyond 3-mile limit. Neither r we a tribunal sitting to decide whether an Act of Legis ultra vires as in contravention of generally acknowledged princ of IL. For us an Act of Parliament ...is supreme, we are bound to give effect to its terms. After the decision in Mortensen v Peters, several Norwegian trawlers arrested & their masters were convicted for the same offence. They were released following a series of protests by Norwegian Gov. In 1907, a Foreign Office spokesman admitted in House of Commons that: the Act of Parliament is in conflict with IL. Customary IL & doc of judicial precedent

    A difficult question, whether, if rules of IL r part of Eng law, they are subject to the doc of judicial precent.

    The former view was that IL may be applied as part of Eng law with the proviso that it be not inconsistent with prior judicial decisions of final authority. [Although the rules of IL might change, Eng cts were unable to apply the new rule bt had to continue to apply the former rule.]

    The position of the law has changed by virtue of the following case. Trendtex Trading Corp v Central Bank of Nigeria [1977] QB.529, CA. Bank of Nigeria claimed to be immune frm juris of the ct under prin of sovereign immunity. At that time thr was clear precedent that a UK ct was bound by doc of absolute immunity. Ct applied theory of restrictive immunity on ground that IL had changed in the intervening yrs. Ruling of Lord Denning

    As btw these 2 schools of thought, I now believe that the doc of incorporation is correct. [A] decision of this ct - as to what was the ruling of IL 50 or 60 years ago - is not binding today. IL knows no rule of stare decisis.

    If ct today satis tat rule of IL on a subject has changed. it can giv effect to that change-& apply the change in our English law-w/o waiting for HL to do it.

    Conclusion

    doc of incorporation is the dominant prac of Eng cts in respect of customary IL.

    It is not exactly the same incorporation doc as practised in the 18th century bt a modified one.

    incorporation doc with the 2 qualifications formulated by Lord Atkin in Chung Chi Cheung v R: A rule of customary IL forms part of Eng law so far as it is not inconsistent with statutes or judicial decisions of final authority.

    (2) Application of treaties

    Treaty-making power in UK is an executive function w/in prerogative power of Crown (Executive).

    legislative power is vested solely in the Parliament (Legis).

    treaty does not automatically become part of Eng law in absence of a legis made by Parliament.

    the prac of UK is based on doc of transformation.

    gen rule, thr must be an enabling act made by Parliament for a treaty to have legal effect in UK.

    treaties which: (1) involve any alteration of the common or statute law; or (2) affect the rights & obligations of British subjects

    definitely req an enabling Act of Parliament to have legal effect in UK. The Parlement Belge (1878-79) 4 P.D. 129 Parlement belge collided with an Eng ship. Ds argued that their ship was not amenable to juris of Eng ct, 1st, bcoz she was prop of King of Belgians. 2ndly, bcoz Queen, by a convention with King of Belgians, has placed this ship in category of a public ship of war. Judgment by Sir Robert Phillimore

    (1) Since Parlement Belge was a ship conveying mails & carrying commerce, she could not be regarded as public ship w/c was exempted frm process of law.

    (2) Affirming the prin that treaties that affected private rights req the sanction of legis to be operative, held:

    convention hd not been confirmed by any statute of Parliament & hd no legal effect in UK.

    Judgment by the Court of Appeal

    CA reversed decision on ground that immunity sought was available at customary IL & hence at common law. [CA based its decision on old absolute

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    immunity theory. Phillimores ruling is now good law because the modern theory is restrictive immunity].

    The ruling at 1st instance to effect that a treaty cannot become part of UK law unless thr is an enabling Act of Parliament is still good law.

    enacted treaty

    If a treaty is transformed by statute into UK law, it has full legal effect.

    usually done by means of an enabling Act w/c a schedule is attached containing the provisions of treaty.

    For example, Diplomatic Privileges Act 1964 enacts V Con on Diplomatic Relations, 1961.

    Treaty is an integral part of the Act & the treaty & Act r as one. unenacted treaty

    w/o legal effect in UK law. its provisions cannot be made subject of litigation in municipal cts.

    Maclaine Watson v Department of Trade & Industry[[1990] 2 A C 418 HoL: Even if a treaty is not enacted in Schedule of an Act, it may be that Act was intended to give effect to the terms of the treaty in ML. In such a case, treaty is relevant and cts will refer to the treaty for purpose of interpretation of the statute in case of ambiguities or uncertainties.

    Practice of the USA

    In customary IL, American prac seems to be similar to British prac.

    Customary IL is normally consid as part of law of US so far as it is not in conflict with a statute or a judicial decision.

    The Paquete Habana, Gray J: IL is part of our law. For this purpose, whr thr is no treaty & no controlling executive or legis act or judicial decision, resort must be had to the customs and usages of civilised nations In this case, US Sup Ct found & applied customary rule of IL exempting coastal fishing vessels from capture as prize of war.

    So far as treaties are concerned, American prac is diff frm British prac.

    In US, treaty-making power is not vested solely in executive. The legis also plays a decisive role.

    AII, S2 of US Consti: President shall have power, by and with advice & consent of Senate, to make treaties, provided 2/3 of Senators present concur. This Consti, & laws of US , & treaties made under the authority of US, shall be sup law of the land.

    In principle treaties made in accord with Consti are, like Consti itself & the Fed statutes, the sup law of the land.

    In prac, a distinction is made by US Sup Ct btw self-executing and non-self-executing treaties. Self-executing treaties are those w/c do not expressly or by its nature req legislation to make them a source of law in US. They are automatically part of American law. Non-self-executing treaties, do req such legislation. Sei Fujii v State of California 19 ILR (1952) 312 In determining whether a treaty is self-executing, cts look to intent of the signatory parties as manifested by language of the instrument, & if the instrument is uncertain, recourse may be had to the circum surrounding its execution. it must appear that framers of treaty intended to prescribe a rule that, standing alone, would be enforceable in the cts.

    In US, treaties enjoy same status as national statutes. They generally derogate pre-existing legislation (on the basis of prin of lex posterior derogat legi priori), bt are overruled by statutes enacted later. See Edye v Robertson.

    Although IL could traditionally be regarded as part of law of US, an analysis of the recent cases indicates that US Sup Ct has not been active in applying IL.

    It appears to have ignored IL. United States v Alvarez-Machain [1992] 31 ILM 902, where the forcible abduction of a Mexican national frm Mexico by US agents was allowed, in apparent contravention of an extradition treaty and of the customary IL of human rights.

    Application of IL in Malaysia

    FConsti of Msia, unlike the constitutions of many other States, is entirely silent on the crucial questions of: (1) whether IL is to be deemed part of the law of the land; or (2) how the State organs of Malaysia (executive, legisl & judiciary) have to

    apply IL. (1) Application of customary IL

    Thr is no reason why Malaysia should not apply an estab rule of CIL. (1) Msia is a member of international community & not isolated State. A

    State actively involved in international relations & an emerging economy, trading with a number of countries.

    Firmly estab rules of CIL accepted by almost all States of the world should be regarded as part and parcel of Malaysian law provided that they are not contrary to Malaysian statutes and public policy. It is actually in the interest of Malaysia.

    (2) CIL is diff for treaty law. A rule of gen CIL is binding on all states except a persistent objector. So long as Malaysia has not persistently objected to a rule of CIL, that rule is binding on Malaysia.

    But will Malaysian cts apply CIL in the absence of any statutory authority which requires them to do so?

    It is imperative to look for a statutory authority. Section 3(1), 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 Ct 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.

    We have seen earlier that doc of incorporation is the main British approach in respect of CIL.

    CIL is deemed to be part of English common law in so far as it is not in conflict with a statute or a judicial decision of final authority.

    According to s3(1), the Eng common law is to be applied by Malaysian cts in the absence of any written law (i.e. statutes) provided that it is not contrary to public policy of Malaysia.

    CIL, as applied in 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 public policy of Malaysia.

    A160, FC

    defines law to include written law, the common law in so far as it is in operation in Federation , and any custom or usage having the force of law in the Fed.

    common law is w/in meaning of law and CIL subject to 2 limitations is part and parcel of common law.

    In practice, cts in Malaysia appear to have applied CIL when occasion arose although the application is not direct but through the medium of English common law.

    Malaysian cts apply CIL as part and parcel of common law. Sockalingam Chettiar v Chan Moi [1947] MLJ 154. Malayan Union CoA CoA had to determine the legality under international law of certain letters of administration granted by the Japanese during their occupation of Malaya. Ct referred to Hague Regulations, w/c are the well-established customary rules of IL & held: letters of admin were in accordance with IL. PP v Oie Hee Koi [1968] 1 MLJ 148 (PC - Appeal frm Malaysian FCt) Although the main issue was concerned with the interpretation of Geneva Conventions of 1949, PC: the position of the accused was covered prima facie by CIL. PP v Narogne Sookpavit [1987] 2 MLJ 100 (HCt, JB) One of the arguments made by respondents was based on right of innocent passage. Shanker J stated: customary law to w/c A14 of Convention on the Territorial Sea is said to correspond may be the customary law of Eng or it may be customary IL. In Ct below me, DC seemed to suggest that it was self-evident that such customary law was part and parcel of Malaysian law. I am far from satisfied that this is the caseIt is unfortunate that the judge outrightly rejected the validity of CIL right of innocent passage. The right of innocent passage is in fact an established rule of CIL accepted by almost all States of the world including Malaysia. Although the learned judge disregarded CIL in this case, it was ironical enough that the same judge relied on a rule of common law, which was based on CIL. Village Holdings Sdn, Bhd v Her Majesty the Queen in Right of Canada, [1988] 2 MLJ 656. HCt, KL Shankar J.: So far as a foreign sovereign is concerned, I hold that s3 of our Civil Law Act 1956 leaves no room for any doubt that we in Malaysia continue to adhere to a pure absolute doc of State immunity. This case clearly demonstrates the fact that the learned judge relied on English common law position which was declaratory of CIL prin of absolute immunity. Commonwealth of Australia v Midford (Malaysia) Sdn Bhd Per Gunn Chit Tuan SCJ S3 of CLA Act only req any Ct in West Malaysia to apply common law and the rules of equity as administered in England on the 7

    th of April 1956. That does not

    mean that the common law and rules of equity as applied in this country must remain static and do not develop.When judgment in the Philippine Admiral was delivered by the PC, it was binding authority in so far as our courts are concerned. That is more so in view of the very strong persuasive authority in I Congreso case in w/c the HoL unanimously held: restrictive doc applied at common law. We are therefore of the view that the restrictive doc should apply here The bold ruling of the SC of Malaysia is to be warmly welcome. (2) Application of international treaties

    FConsti of Malaysia contains no provision which says that IL shall be deemed part of the law of the land or that treaties shall be the laws of Malaysia.

    A74 SM 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) 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;

    From wordings of A74 and the Federal List read together, it is clear that 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.

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    The power of the Executive A39: The executive authority of the Federation shall be vested in the YDPA and exercisableby him or by the Cabinet or any Minister authorized by the Cabinet. A80(1): The executive authority of the Federation extends to all matters with respect to which Parliament may make laws.

    By virtue of Federal List, matters with respective to w/c Parliament may make laws include external affairs which in turn include treaties, agreements and conventions with other countries.

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

    In Malaysia the treaty-making power is vested in Fed Gov. Govt. of the State of Kelantan v Govt. of Fed of Malaya & Tunku Abdul Rahman Putra Al-Haj On eve of the establishment of Malaysia, Kelantan challenged constitutionality of the Malaysia Agreement and the Malaysia Act. The Malaysia Agreement was an international treaty signed by UK, Fed of Malaya, Spore, Sabah & Srwk. It was enacted by Fed of Malaya to implement that Agreement. The main argument made by Kelantan Gov was that the consent of the individual States of the Fed of Malaya should have been obtained before the arrangements for Malaysia can be lawfully implemented. Referring to A39 and 80(1), the Ct affirms the constitutionality of the Malaysia Agreement as follows: The Malaysia Agreement is signed for Fed of Malaya by PM, Deputy PM and four other members of the Cabinet. There is nothing whatsoever in the Constitution requiring consultation with any State Government or the Ruler of any State.

    In Malaysia, like in the UK, Executive possesses the treaty-making capacity while the power to give legal effect domestically to treaties rests in Parliament.

    A treaty to be operative in Malaysia, therefore, needs legislation by Parliament.

    Perhaps thr are treaties that can be implemented locally w/o any necessity for the introduction of a statute.

    Nevertheless, treaties that affect the rights of private persons or involve changes in ML req legislation.

    It is clear that as far as treaties are concerned, Malaysian prac is based on doc of transformation.

    See p. 79 for examples of Malaysian statutes transforming treaties into ML. (3) IL & ML: the issue of primacy

    Malaysia consti is silent as to primacy of IL over ML or vice versa.

    if there is conflict, statute shall prevail. P.P. v Wah Ah Jee: Cts here must take the law as they find it expressed in Enactments. It is not duty of a Judge to consid whether the law so set forth is contrary to IL or not.

    This is based on common law prin of supremacy of an Act of Parliament. (4) State responsibility for breach of IL

    A breach of IL by a State entails international responsibility of that State. International cts and tribunals have repeatedly affirmed this prin.

    MBF Capital Bhd. & Anor v Dato Param Cumaraswamy. [1997] 3 CLJ 927

    Immunity from Legal Process case (1999) ICJ Rep. 62.

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    INTERNATIONAL PERSONALITY [THE SUBJECTS OF INTERNATIONAL LAW] (PP. 83-97)

    Legal personality is primarily an acknowledgement that an entity is capable of exercising certain rights and being subject to certain duties under a particular system of law.

    Subjects of the law are the persons to whom the law attributes rights and duties.

    Therefore, the term subject of the law is synonymous with the term legal person.

    1 THE CONCEPT OF INTERNATIONAL PERSONALITY [pp. 82-83]

    An entity has international personality if it has rights and duties under international law. The following are generally accepted as characteristics of international personality:

    (1) Rights and obligations under international law; (2) Treaty-making capacity; (3) Capacity to make international claims; and (4) The enjoyment of privileges and immunities from national

    jurisdictions.

    These are also known as indicia of international personality. In practice, it is only States and certain international organisations like the United Nations that have all of these capacities to the fullest degree.

    Subjects of international law are those who possess international personality.

    Are States the only subjects of international law?

    In the 19th century, States were the only subjects of international law.

    Oppenheim emphatically stated: Since the law of nations is based on the common consent of States, and not of individual human beings, States solely and exclusively are subjects of international law.

    In the present day, it is not true.

    While States remain the predominant actors in international law, the position has changed.

    After the Second World War, new actors have emerged on the international plane, such as public international organizations established by States (IGOs), non-governmental organizations (NGOs) created by individuals, multinational corporations and even individual human beings.

    They are now recognized as possessing some, although limited, international personality.

    2 STATES AS SUBJECTS FO INTERNATIONAL LAW

    States are the subjects of international law par excellence.

    It is, therefore, important to have a clear idea of what a State is for the purposes of international law.

    Professor Oppenheim defines State in these terms: A State is in existence when the people is settled in a country under its own sovereign government.

    Four requirements of statehood in Oppenheims sense

    (1) People: who live together as a community in spite of the fact that they may belong to different races or religions, or of different colours

    (2) Country : there must be a country in which the people have settled down.

    (3) Government (4) Sovereignty: Sovereignty means the supreme authority above

    which there is no other higher authority. Sovereignty denotes independence all round within and without the boundary of a state.

    2. 1 Criteria of statehood under international law [ P. 85]

    Article 1 of the Montevideo Convention on Rights and Duties of States 1933 provides as follows:

    The State as a person of international law should posses the following qualifications:

    (a) A permanent population; (b) A defined territory; (c) Government; and (d) Capacity to enter into relations with other States.

    (1) Defined Territory

    For a State to exist, there must be a defined territory. The control of territory is the essence of a State.

    This is the basis of the central notion of territorial sovereignty, establishing the exclusive competence of the State to exercise sovereign authority within that territory.

    (2) Permanent population

    There must be people linked to a specific territory on a more or less permanent basis and who can be regarded as its inhabitants. Wandering tribes do not qualify to be a State.

    In the Western Sahara case (1975) ICJ Rep. 12, the territory of the Western Sahara is populated by nomadic tribes who go freely across the desert. However, it was held that their link with the territory is such that they may be regarded as its population.

    (3) Government

    To be a State there must be a government. The government must be effective within the defined territory and exercise control over the permanent population. The mere existence of a government in itself does not suffice, if it does not have effective control.

    Aaland Island Case (1920) LNOJ Special Suppl. No. 3, p. 3.

    The main question in this case was the date on which Finland became a state. Finland had been a part of the Russian Empire until the Russian Revolution. The Finnish Parliament declared Finlands independence on December 4, 1917. But there was opposition within Finland by those who rejected the idea of independence. As a result, violence broke out and for a time the government of the new state was able to maintain order only with the help of the Soviet troops.

    Held: Only in 1918, Finland became a state. (4) Capacity to enter into relations with other States

    When the Montevideo Convention refers to capacity to enter into relations with other States, it is referring to independence in law from the authority of other States.

    In Austro-German Customs Union case, (1931) PCIJ Reports, Series A/B, No. 41, Austria and Germany, by a Protocol of 1931, reached an agreement on a customs union establishing free trade between the two States. Judgment of Judge Anzilotti:

    The legal conception of independence has nothing to do with a States subordination to international law .

    It also follows that the restrictions upon a States liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence. As long as these restrictions do not place the State under the legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be.

    Federal States [p. 88]

    A federal State is a union of several sovereign States. The union is, first, based on an international treaty of the member states, and secondly on a subsequently accepted constitution of the federal State.

    In the view of Professor Wade, federation pre-supposes a desire for some form of union among independent States, which, though they desire union for some purposes, nevertheless wish to preserve their identity and some measure of independence.

    A distinctive feature of a federal State is that in foreign policy it acts as a single subject of international law. Thus a federal State is said to be a real State and an international person.

    On the other hand, the international position of the member states is not so clear.

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    Units (member states) within a federal State may or may not be allowed by the federal constitution some freedom to conduct their own foreign affairs.

    If, and to the extent that, they are allowed to do so, such units are regarded by international law as having international personality.

    E.g., the Republics of the former USSR were all entitled in law to conduct their own foreign affairs and two of them Byelorussia and the Ukraine - to a small extent did so.

    The Malaysian Practice

    If we read together Articles 74, 76 and the Federal List of the Federal Constitution of Malaysia, it is crystal clear that the federal Parliament and the Federal Executive (the Cabinet) have the exclusive power relating to external affairs, foreign affairs or international relations. No such power can be exercised by the component states.

    The conclusion then is that in Malaysia international personality is vested in the Federal State and the component states possess no international personality whatsoever.

    3 INTERNATIONAL ORGANISATIONS [pp.89-93]

    Although the States remain the most important subjects of international law, they are no longer the only subjects. Apart from states, international organisations can be the subjects of international law.

    Since they are the organisations of states they have important functions assigned by the states. In order that these organisations can carry out their functions effectively, they must enjoy some measure of international personality.

    There is no doubt that the United Nations Organisation possesses international personality and is a subject of international law.

    A very important provision of the Charter indicating the legal capacity of the United Nations is Article 104, which says: The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.

    Article 105 provides, inter alia, that:

    1. The Organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

    2. Representatives of the Members of the United Nations and officials of the Organisations shall similarly enjoy such privileges and immunities as are necessary with the Organisation

    Furthermore, the Charter itself recognizes the treaty-making power of the principal organs of the United Nations.(Arts. 43, and 63 of the Charter, Headquarters Agreements).

    In any case, the most important evidence for the determination of the international personality of the United Nations appears to be the famous advisory opinion of the World Court in the Reparations for Injuries Suffered in the Service of the United Nations.

    Reparations for Injuries Suffered in the Service of the United Nations Advisory Opinion. (1949) ICJ Rep. 174 [p. 91]

    On September 17, 1948, Court Bernadotte, a Swedish national, was assassinated in Jerusalem, which was then in Israeli possession. He was the Chief United Nations Truce Negotiator in the area. In the course of deciding what action to take in respect of his death, the United Nations General Assembly sought the advice of the International Court of Justice.

    The General Assembly requested the ICJ to give an advisory opinion on: Whether the United Nations has, as an Organisation, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining reparation due in respect of the damage caused (a) To the United Nations; (b) To the victim or the persons entitled through him.

    Judgment

    Accordingly, the Court has come to the conclusion that the Organisation is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.

    The World Court in clear terms confirms the international personality of the UN. Of course, not all IOs possess international personality.

    The intention of member States can be inferred from various factors.

    That intention may also be expressly mentioned in the constituent instrument of the organization. The best example is Article 4 (1) of the Rome Statute Establishing the International Criminal Court (ICC), 1998, which provides: The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.

    Many public international organisations, including the specialised agencies of the United Nations such as the ILO, the IMF, the IBRD, the IMO, and the regional organisations such as the European Community, the Organization of American States (OAS), the Organization of African Unity (OAU), have certain degree of international personality in order to achieve their objectives.

    4 INDIVIDUALS AND CORPORATIONS

    The primary purpose of international law is to regulate the relations of States. Before the 20th century the prevailing view was that the individual was merely an object and not a subject of the law of nations.

    Since World War I, however, the community of nations has become increasingly aware of the need to safeguard the rights of the individual. Human rights become a matter of vital concern to states. As a result, many scholars advocate the thesis that individuals should also be regarded as subjects of international law.

    It is true that States are reluctant to allow individuals to have any rights and duties outside their own national legal systems. Nevertheless, no one can deny the fact that individuals indeed have certain rights and duties at international law.

    (1) Legal responsibility of individuals under international law

    There are norms of international law, which establish direct individual responsibility. Thus individuals who commit international crimes can be punished in accordance with international law. These crimes, inter alia, are: (1) Piracy jure gentium; (2) Slave-trading; (3) Genocide; and (4) Other international crimes such as, war crimes crimes against

    humanity, and torture.

    After the World War II, international military tribunals were set up at Nuremberg and Tokyo. The Judgments of these Tribunals affirmed the criminal responsibility of individuals under international law. The Nuremberg Judgment reads:

    Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

    This trend was reaffirmed by the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. The Convention is another attempt to universalise the principle of individual criminal responsibility under international law.

    Article 4 of the Convention states: Persons committing genocide shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals

    The recent Rome Statute of the International Criminal Court, 1998 upheld the criminal responsibility of individuals as follows:

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    1. The Court shall have jurisdiction over natural persons pursuant to

    this Statute. 2. A person who commits a crime within the jurisdiction of the

    Court shall be individually responsible and liable for punishment in accordance with this Statute.

    (2) Rights of individuals under international law

    In Western countries, there has been a growing tendency to admit that individuals have some degree of international personality, but the personality is usually seen as something limited much more limited than the legal personality of international organizations.

    In Eastern countries, however, writers and governments usually deny that individuals have any rights under international law; they probably fear that such rights would undermine the power of States over their own nationals.

    One way of proving that the rights of the individuals exist under IL is to show that the treaty conferring the rights give the individuals access to an international court or tribunal in order to enforce their rights.

    Nevertheless, as a general rule, the individuals have no locus standi or access to international courts and tribunals. Most international tribunals are not open to individuals.

    There are only a few exceptions to this general rule; in exceptional cases, individuals may be given by treaty the right to appear before an international tribunal.

    The first example is the European Convention on Human rights and Fundamental Freedoms, 1950 and its Protocols. By virtue of this Convention, any private individuals, who are nationals of States Parties, can bring an action before the European Court of Human Rights against their own government for violations of human rights.

    The second example is the Convention on the Settlement of Investment Disputes between States and Nationals of other States 1965.

    The Convention provides a mechanism for the settlement of disputes between a State Party to the Convention and a national or company of another State Party on the consent of both sides.

    It creates the International Centre for the Settlement of Investment Disputes (ICSID), an international arbitral tribunal, in Washington D.C. under the auspices of the World Bank.

    Access to the International Court of Justice

    However, as far as ICJ is concerned, only sovereign States and no private individuals or corporations have access to the contentious cases before the Court.

    Article 34 (1) of the Statute of the ICJ expressly provides that Only States shall be parties in cases before the Court.

    Therefore, if individuals and companies are victims of an internationally wrongful act committed by a foreign State, they have to persuade their national State to take up the case.

    However, a number of factors need to be taken into account before initiating such an international claim. (1) First, there must have been an internationally wrongful act

    committed by a foreign State against a national or a corporation of the claimant State.

    (2) Secondly, the two requirements for the admissibility of an international claim must be satisfied, namely:

    (a) Nationality of claims: there must be a linkage of nationality between the victim and the State making the international claim; and

    (b) Exhaustion of local remedies: the victim must have been exhausted all the effective local remedies available at the wrong-doer State.

    (3) Thirdly, the jurisdictional requirement must be satisfied. According to Article 36 of the Statute of the ICJ, the Court can exercise jurisdiction only with the consent of both States parties to the dispute.

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    CHAPTER5 STATE TERRITORY

    Portion of the surface of the globe w/c is subjected to the sovereignty of a State. State w/o a territory is not a Sate at all.

    IL recog the supreme authority of every State w/in its territory. Known as territorial sovereignty.

    1st issue - how a State acquires sovereignty over its territory. ACQUISITION OF SOVEREIGNTY OVER TERRI [TITLE TO TERRI]

    5 traditional modes of acquisition: (1) occupation; (2) prescription; (3) cession; (4) conquest; (5) accretion.

    These modes offer merely a convenient method of exposition.

    In prac, a ct will not specifically refer to any of these modes.

    Issue of territorial sovereignty is complex and involves the application of various prin of law to the facts.

    To consider the complementary principles such as acquiescence, recognition, estoppel,, and uti possidetis juris.

    Historical changes in concepts of law need to be taken into account.

    In 20th century, prin of self-determination has increasingly important. At same time, the use of force by states to settle disputes/otherwise to effect a territorial gain is illegal.

    1. OCCUPATION

    Occupation - intentional acquisition by a State of sovereignty over a territory w/c is at the time not under the sovereignty of anor State (terra nullius).

    2 basic requirements: (1) Territory must be terra nullius; (2) Occupation must be effective in the sense thr must be an intention to

    occupy, followed by actual display & exercise of State functions over it. What is terra nullius?

    Terra nullius - territory belong to no one at time of occupation.

    Position of territories inhabited by native tribes with certain social and political organization.

    Western Sahara case Advisory Opinion. (1975) ICJ Rep. 12

    Morocco claimed the territory on the basis of historic title. ICJ found that since Western Sahara was inhabited by ppl w/c, if nomadic, were socially & politically organized in tribes & under chiefs competent to rep them, it could not be regarded terra nullius (at the time of the Spanish colonization) and Morocco was not able to show any evidence of the actual display of authority over the territory.

    Right of self-determination was recognized. Effective occupation

    Occupation must be effective. Req have become increasingly strict in IL.

    In 16th century, it was interpreted very liberally. Mere discovery gave a State an inchoate title, an option to occupy the territory w/in a reas time, during w/c time other States not allowed to occupy the territory.

    Present law, 2 elements: (1) Intention & will to act as sovereign (animus); and (2) Peaceful & continuous display of State authority (factum).

    Since occupation = sovereign act, private person cannot acquire territorial sovereignty by occupation, w/o express authorization/subseq confirmation (or ratification) of his State.

    Anglo-Norwegian Fisheries case: independent activity of private individuals is of little value unless it can show they have acted in pursuance of a license/some other authority received from their gov/that in some other way their Gov have asserted juris through them.

    No occupation without the acts of private individuals.

    ICJ in Minquiers and Ecrehos case treated actual & permanent settlement of Englishmen on the islands as one of the acts indicative of sovereignty.

    (1) Intention to act as sovereign

    In Clipperton Island Arbitration and Eastern Greenland case, Ct: actual display of sovereignty must be accompanied by an animus or intention to act as sovereign.

    Can be presumed frm the simple fact that State is exercising such authority in the territory.

    In territories such as Clipperton Island and Eastern Greenland, whr extensive display of authority is not possible, it is enough that the State makes clear its sovereign intentions by means such as:

    (1) publication of notices of sovereignty in various journals in Clipperton

    Island Arbitration; and (2) declarations stating application of national laws to Greenland by

    Denmark in the Eastern Greenland case. (2) Peaceful and continuous display of State authority

    Exercise of State authority must be peaceful and continuous until the critical date. (a) Peaceful display of State authority

    Not challenged by other Stat