Nature of International Law /International Law before municipal courts/History of International Law/ subjects of International Law

References
Anthony DAmato, Is International Law Really Law? International Law, Dartmouth DJ Harris, Chapter 1 & 3, Cases and Materials on International Law, Sixth Edition Martti Koskenniemi, What is International Law For? Stephen C Neff, A Short History of International Law Tunku Sofea Jewa, Relationship Between International Law and Municipal Law Vaughan Lowe, Chapter 1, International Law, Oxford Malcolm N. Shaw, Chapter 5, International Law, Cambridge University Press

NATURE OF INTERNATIONAL LAW

Nature of International law

Body of rules and principles which are binding upon states in their relations with one another Public International Law governs the relations between states Public International law concerned itself with states and international organizations such as the United Nations

 International law is essentially made up of treaties, reflecting the express agreement of states, and custom, which comprises those rules of international conduct to which states have given their tacit consent The body of rules and principles that determine the rights and duties of States, primarily in respect of their dealings with other States and citizens of other States International law is the framework within which international co-operation takes place

Legislature There is no central legislative body in international law with the power to enact rules binding upon all states Rules of international law are created by the consent of states

Differences between International Law and Municipal Law

International court International courts have jurisdiction only over those states that have consented to their jurisdiction

Executive authority There is no central executive authority with a police force at its disposal to enforce the rules of international law

Sanctions International law has a number of sanctions for breach of a rule of law aimed at securing compliance with the law:a. Chapter VII of UN Charter empowers the Security Council to direct its members to use force against state for violation of international law which tantamount to threat to international peace b. Economic sanctions, etc

Nottebohm Case (Second Phase) 1955 nationality is within the domestic jurisdiction of the State, which settles by its own legislation, the rules relating to the acquisition of nationality. But the issue which the court must decide is not one which pertains to the legal system of Liechtenstein; to exercise protection is to place oneself on the plane of international law. International practice provides many examples of acts performed by States in the exercise of their domestic jurisdiction which do not necessarily or automatically have international effect

Is International Law really Law?

International Law is not law 1) It cant be enforced (Immanuel Kant) 2) International law are merely positive morality (John Austin)Branch of ethics 3) There is no legislature, no executive power & no world police (John Austin) 4) Resort to court of justice and arbitration to solve dispute is not compulsory

Vs

International law is law 1) Enforcement is not the hallmark of law The relationship between compliance and enforcement 2) Enforcement through sanction/self help measurescountermeasures (Kelsen)/social disappproval 3) The absence of legislature, executive and world police does not mean international law not law

John Austin
Law is the command of a political superior to a political inferior backed by the threat of a sanction International law fails to qualify as law

Jack Goldsmith, Eric Posner, The Limits of International law

The international lawyers task is like that of lawwer called in to interpret a letter of intent or nonbinding employment manual: the lawyer can use his or her knowledge of business or employment norms or other documents, and so forth to shed light on the meaning of the documents, but the documents themselves does not create legal obligations eventhough they contain promissory or quasipromissory language

Immanuel Kant
For while Hugo Grotious.and others whose philosophically and diplomatically formulated codes do not and cannot have the slightest legal force (since nations do not and cannot stand under any common external constraints) are always piously cited in justification of war of aggression (and who therefore provide only cold comfort), no example can be given of a nation having forgotten its intention (of going to war) based upon the arguments provided by such important men

H L A Hart Rejected the command theory of law and accepted that international law qualifies as a species of law

Sir Frederick Pollock

A legal system requires the existence of a political community, and the recognition by its members of settled rules binding upon them- international law may qualify as law:a. There is political community namely community of modern states b. There is a body of rules and principles that comprise the international legal order c. The members of international community recognize these rules and principle as binding upon them

Martti Koskenniemi We do not honour the law because of the sacred aura of its text or origin but beacuse it enables us to reach valuable human purpose

Louis Henkin
Almost all nations observe almost all principles of internationallaw and almost all of their obligations almost all of the time States recognise that the observance of law is in their interest and that every violation may also bring particular undesirable consequences

 International law is observed and honored every day in diplomatic and consular relations, trade, air and sea traffic, communications, extradition, etc. States obey international law because of the forces of public opinion, habit, good faith and a combination of reciprocal advantage when the law is followed and the fear of retaliation when its broken

The History of International law

Ancient Worlds The roots of international law are to be found in the ancient histories of the Egyptians, Mesopotamia, Northern India, Jews, Greeks and Romans A number of standard practices emerged especially in there areas: diplomatic relations, treaty-making and conduct of war. The Islamic empire of the seventh century developed body of law on relations between States within the Muslim world

The Middle Ages: The Natural Law Era Developed by jurist based on the Roman Law and the natural law Just wars, rules on the conduct of war, rules on the acquisition of territory, immunity from legal process, commerce

The Classical Age (1600-1815) Contribution by Hugo Grotious through his work: On the law of War and Peace (1625) The law of nations was the law which has received its obligatory force from the will of all nations, or of many nations States should be governed by distinct set of laws suited to them alone Development of the voluntary law made from treaties and custom or usage

The 19th century (1815-1919)

The principle of the sovereign equality of States and non-intervention of States into the internal affairs of another became the fundamental cornerstone of international law International law became an established profession and a subject of university studies on large scale International community legislating by way of multilateral treaties such as the Declaration of Paris 1856 and Declaration of St Petersburg 1868 Achievement in the area of dispute settlement with the practice of inter-state arbitration-eg Jay Treaty 1794

The 20th and 21st centuries (1919- ) The establishment of the League of Nations (Versailles Treaty 1919) Judicial or political dispute-settlement process must be exhausted before there can be war between League Member states-enforcement action(economic sanctions) against states that breach this rule in 1928, the Pact of Paris was concluded, in which the States parties denounce resort to war as means of national policy The establishment of the Permanent Court of International Justice

 Multilateral initiatives on human rights-eg. conventions for the protection of minorities, relief of refugees After 1945 The founding of the United Nations in 1945, to replace the defunct League of Nations The establishment of the International Court of Justice to replace the PCIJ The establishment of the Security Council as one of the organs of the United Nations Prohibit the use of force and resort to war except for self defence

 The establishment of the International Monetary Fund and the World Bank The function of the UN had been paralyzed by the Cold War Explosive increase in international law making (international Law Commission)-eg law of the sea, diplomatic and consular relations, human rights and the law of treaties The increase number of international organization The creation of the World Trade Organization

 The statute for a permanent International Criminal Court was drafted in 1998, entering into force in 2002 Since the decolonization of European colonies in Africa, Asia, the Pacific and the Caribbean, the community of nations is genuinely international and numbers over 191 states of which nearly all are members of the United Nations

The place of International Law in Malaysia Municipal Law

Two main approaches to the relationship of international law and municipal law

The monist International and municipal law, far from being essentially different must be regarded as manifestations of a single conception of law Municipal courts are obliged to apply rules of international law directly without the need for any act of adoption by the courts or transformation by legislature The dualist International law and municipal law as completely different systems of law International law maybe applied by domestic courts only if adopted by such courts or transformed into local law by legislation

 Malaysias acceptance of international law depends on the following:a) Federal Constitution b) Civil Law Act 1956 c) Membership in International Organizations d) Treaties e) Acts of Parliament f) Judicial decisions

Federal Constitution
the power to make laws involving certain aspect of international law are enumerated in Articles 74(1), [read with Federal List],76(1), 76(2) and 169 Parliament may make laws with respect to any matters enumerated in the Federal List which consist of external affairs (eg. treaties concluded with other countries)

 Under Article 76(1)9a), Parliament may make laws with respect to any matter in the State List but for the purpose of implementing any treaty agreement or convention between the Federation and any other country or any decision of an International Organization in which the Federation is a member exclude matters relating to Muslim law and custom Article 169 stipulates that international agreements concluded before Merdeka Day are applicable to Malaysia

 Only the Federal Government as opposed to any State Government is empowered to enter into International agreements In the case of PP v Narogne Sookpavit & Ors [1987] 2 MLJ 100 the court held that before a Convention can come into force in Malaysia, Parliament must enact a law to that effect

 Treaties to which Malaysia is a party may either require subsequent legislation in which case they become the law of the land as soon as the necessary laws are enacted If they are not legislated, they remain binding on Malaysia under International law and other parties to the treaties but having no effect domestically

 The position in the Great Britain is the Customary rules of international law are regarded by the courts as part of the common law Blackstone: the law of nations is here adopted in its full extent by the common law, and it is held to be a part of the law of the land Art 3(1)-application of common law of England and the rules of equity as administered in England

Civil Law Act 1956

MOHAMAD EZAM BIN MOHD NOOR v KETUA POLIS NEGARA & OTHER APPEALS [2002] 4 MLJ 449
Reference to international standards set by the Universal Declaration of Human Rights 1948 ('the 1948 Declaration') and several other United Nations documents on the right of access cannot be accepted as such documents were not legally binding on the Malaysian courts. The use of the words 'regard shall be had' in s 4(4) of the Human Rights Commission of Malaysia Act can only mean an invitation to look at the 1948 Declaration if one was disposed to do so and to consider the principles stated therein and be persuaded by them if need be. Beyond that, one was not obliged or compelled to adhere to the 1948 Declaration. This was further emphasized by the qualifying provisions of s 4(4) of the Human Rights Commission of Malaysia Act which provided that regard to the 1948 Declaration was subject to the extent that it was not inconsistent with the Constitution.

INTER DIAM PTE LTD v PJ DIAMOND CENTRE SDN BHD [2002] 7 MLJ 189
our law must keep abreast with developments and changes in international economic law that have taken place since the 1930s when the case of Overseas Chinese Banking Corporation Ltd v The firm of Yaik Joo Ann [1936] MLJ 88 was decided. Under the present international economic order, our courts can no longer adhere to the narrow and outdated perception of the law as exhibited in that case

Subjects of international law

 Personality involves the examination of certain concepts within the law such as status, capacity, competence, as well as the nature and extent of particular rights and duties Personality in international law necessitates the consideration of interrelationship between rights and duties afforded under the international system and capacity to enforce claims

Subjects of international law State Art. 1 of the Montevideo Convention on Rights and Duties of States 1933

International Organisation Reparation for Injuries case (1949)

Other possible candidates? Individuals Transnational corporations International public companies National Liberation Movement

State
States are the original and major subjects of international law Statehood will arise as a result of the factual satisfaction of conditions stipulated under art.1 of the Montevideo Convention

Reparation For Injuries Suffered in the service of the United Nations (1949)
Competence to bring an international claim is for those possessing it, the capacity to resort to the customary methods recognized by international law for the establishment, the presentation and settlement of claims.This capacity certainly belongs to the State; a State can bring an international claim against another state. Such a claim takes the form of a claim between two political entities, equal in law, similar in for, and both the direct subjects of international law

International Organisation
Whether an organisation possesses personality in international law depends on: 1. Its constitutional status 2. Its actual powers and practice - the capacity to enter into relations with states and other organisation - the capacity to conclude treaties - the status it has been given under municipal law (Arab Monetary Fund V Hashim and Ors[No. 3] 1990)

Reparation For Injuries Suffered in the service of the United Nations (1949)
Accordingly, the court has come to the conclusion that the organization (UN) is an international person.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 claim

Reparation For Injuries Suffered in the service of the United Nations (1949)
Whereas a State possess the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice

Interpretation of the Agreement Case (1980)

International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties

Individuals
International protection of human rights Range of treaties provides for individuals to have rights directly and direct access to international courts and tribunals such as the European Convention on Human Rights (1950), the Inter-American Convention on Human Rights 1969, the Optional Protocol to the International Covenant on Civil and Political Rights 1966, the Convention on the Settlement of Investment Dispute

International criminal responsibility The Nuremberg Tribunal held that international law imposes duties and liabilities upon individuals as well as upon states. This was because crimes against international law are committed by men, not by abstract entities Genocide Convention 1948, 1949 Geneva Conventions and its additional protocols Art.25 of the Rome Statute Tadic Case (ICTY)

Danzig Railway Officials Case (1928) according to a well established principle of international law, , being an international agreement, cannot, as such, create direct rights and obligations for private individuals. But it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courtsThe intention of the Parties, which is to be ascertained from the contents of the Agreement, taking into consideration the manner in which the Agreement has been applied is decisive..

Transnational corporations
Private business organisations comprising several legal entities linked together by parent corporations and are distinguished by size and multinational spread a corporation with affiliated business operations in more than one country.

 The Draft UN Code of Conduct on Transnational Corporations defines a transnational corporation as an enterprise, whether of public, private or mixed ownership, comprising entities in two or more countries, regardless of the legal form and fields of activity of these entities, which operates under a system of decision-making, permitting coherent policies and a common strategy through one or more decision-making centres, in which the entities are so linked, by ownership or otherwise, that one or more of them [may be able to] exercise a significant influence over the activities of others, and, in particular, to share knowledge, resources and responsibilities with the others.

 An increasing amount of practice and guidelines emerge to deal with transnational corporations On August 13, 2003, the United Nations SubCommission on the Promotion and Protection of Human Rights approved the "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights"

 The Norms represent a landmark step in holding businesses accountable for their human rights abuses It also constitutes a succinct restatement of the international legal principles applicable to businesses with regard to human rights, humanitarian law, international labor law, environmental law, consumer law and anticorruption law The question of the international personality of transnational corporations remains and open one

International public companies

Formed through an international agreement providing for cooperation between governmental and private enterprises Constitution and competences may vary If the entity is given a range of powers, it may attained international personality Eg. Bank of International Settlement, created in 1930 by virtue of a treaty between five states, and he host country, Switzerland

National Liberation Movement

Organised groups fighting on behalf of a whole people against : 1) Anti-colonialism 2) Struggle against racist regimes 3) Alien domination Eg. African National Congress (ANC), Palestine Liberation Organisation (PLO), FRETILIN (East Timor)

 Acquired control over some part of the territory in which they were fighting Liberation movements are elevated to the rank of international subjects because thy tend to acquire control over territory International legitimation based on the principle of self determination They are given international status based on account of their political goals Being represented by an organization or apparatus

Arafat and Salah (1986, Italian Court of Cessation)

enjoy a limited international personality. They are granted locus standi in the international community for the limited purpose of discussing, on a perfectly equal footing with territorial States, the means and terms for the self determination of the peoples they politically control, pursuant to the principle of self determination of peoples, to be considered a customary rule of peremptory character