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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
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
2. 3 INTERNATIONAL CUSTOM
[pp. 29-40]
The authority that supports this rule is the AngloNorwegian 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]
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.
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
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
10
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-selfexecuting 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 7th 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.
11
12
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.
13
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.
Judgment
14
15
16
existing legal situation and are unlawful & invalid. Ct gave judgment for
Denmark as requested.
Judgment
Danish argument is that Denmark has exercised sovereign right over
Greenland for a long time & has obtained thereby a valid title to
sovereigntyDanish claim is founded on the peaceful & continuous display of
State authority over the islandA claim to sovereignty based upon continued
display of authority involves 2 elements.
(Manifestation of exercise of sovereign authority by Denmark)
(1) Documents granting trading, hunting & mining concession;
(2) Concessions granted for erection of telegraph lines; and
(3) Legislation fixing limits of territorial waters in 1905.
ICJ reaffirmed the status of effective occupation as a fundamental norm of
the law of territorial acquisition. It also supports the view that the doc of
effectiveness vary according to the nature of the territory in dispute.
If rival State could not make out a superior claim & especially when the area
in dispute is thinly populated or an unsettled region, Ct will be satis with very
little in the way of exercise of State authority.
If territory concerned is totally uninhabited, ct will take it as an exceptional
case & the proof of effective occupation will be much easier. Clipperton Island
case can best illustrate the point.
Clipperton Island Case France v Mexico (1931). 26 AJIL (1932)
In 1858, a French lieutenant on board a commercial vessel cruising past
Clipperton Island declared the Island (which was uninhabited) to be French
territory. The lieutenant notified French consulate in Honolulu, w/c
published declaration of French sovereignty in a local journal. Very little was
then done in relation to the Island by French authorities.
In 1897, a Mexican gun-boat landed & forced 3 inhabitants to raise Mexican
flag, claiming the Island had been discovered by Spain, to w/c Mexico was the
successor State frm 1836.
Arbitrator: discovery by Spain hd not been proved, and France had not
abandoned her claim & so had title to the Island.
Award
Not been proven that this island had actually discovered by Spanish
navigators. Consequently, in 1858, France proclaimed her sovereignty over
Clipperton, the island was in legal situation of territorium nullius, &
susceptible of occupation. The question remains whether France proceeded
to an effective occupation, satisfying the cond req by international law for
validity of that kind of territorial acquisition.
Besides the animus occupandi, actual taking of possession is a necessary cond
of occupation. Takes place when state estab in the territory itself an
organization capable of making its laws respected.
Bt a territory completely uninhabited, is, frm the 1st moment when the
occupying state makes its appearance thr, at the absolute & undisputed
disposition of that state, from that moment the taking of poss must be consid
as accomplished & occupation is thereby completed.
Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan
[Indonesia v Malaysia] ICJ Judgment of 17 December 2002
On basis of special agreement, Indon & Msia submitted to ICJ the dispute
over Pulau Ligitan and Pulau Sipadan.
Indons claim to sovereignty rests primarily on Convention w/c Great Britain
& Netherlands concluded in 1891 for purpose of defining the boundaries.
Indon relies on a series of effectivites w/c confirm its conventional title.
Msia argues that it acquired sovereignty over the islands following a series of
transmissions of the title originally held by the former sovereign, Sultan of
Sulu. Msia claims that title subseq passed to Spain, to US, to GB and finally
to Msia. Title is confirmed by a number of British & Msian effectivites. If the
Ct were to conclude that the islands hd originally belonged to Netherlands, it
effectivites would have displaced any such Netherlands title.
Having found that neither Parties has treaty-based title, Ct consid effectivites
as an independent & separate issue.
In support of its arguments relating to effectivites, Indon cites patrols in area
by vessels of the Dutch Royal Navy, activities of Indon Navy, as well as
activities of Indonesian fishermen.
Msia mentions control over taking of turtles and collection of turtle eggs, the
most important economic activity on Sipadan for many years. It also relies on
establishment in 1933 of a bird sanctuary on Sipadan. It further points out
that the British Borneo authorities constructed lighthouses on Ligitan &
Sipadan Islands in early 1960s and exist to this day, are maintained by Msian
authorities.
Ct refers to Legal Status of Eastern Greenland case and states that very little in
the way of the actual exercise of sovereign rights is req in the case of claims
to sovereignty over areas in thinly populated or unsettled territories. it
cannot take into consideration acts having taken place after date on w/c the
dispute btw the Parties crystallized. Ct mainly analyses the effectivites w/c
date frm period before 1969 (critical date).
None of effectivites relied on by Indon is a legislative or regulatory character.
In respect of presence of Indonesian navy, thr is no evi showing that the
naval authorities considered Ligitan and Sipadan to be under the sovereignty
of Indon. Activities by private persons, Indonesian fishermen, cannot be seen
as effectivites if they do not take place on the basis of official
regulation/under gov authority. Activities relied upon by Indon do not consti
actual exercise of sovereignty reflecting intention and will to act in that
capacity.
Ct 1st observes that both the measures taken to regulate & control collecting
of turtle eggs & establishment of a bird reserve must be seen as regulatory &
administrative assertions of authority over territory w/c is specified by name.
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18
CHAPTER
STATE JURISDICTION
1 NATURE OF JURISDICTION [p. 139]
Jurisdiction is an aspect of State sovereignty. It includes both the
power to prescribe rules (prescriptive jurisdiction) and the power to
enforce them (enforcement jurisdiction).
The former refers to the legislative power of a State and the latter
includes both executive and judicial power of enforcement.
Some writers, therefore, simply talks about legislative jurisdiction,
executive jurisdiction, and judicial jurisdiction, reflecting the three
functions of a sovereign State.
Territorial sovereignty and Territoriality of jurisdiction [p. 140]
in the present world sovereignty is undoubtedly territorial in
character. Therefore, in assessing the extent of jurisdiction the
starting point must necessarily be its territoriality.
Even though a State may have a general power under international
law to prescribe jurisdiction, the enforcement of that jurisdiction
can generally take place only within its own territory.
A state cannot enforce its prescriptive jurisdiction in the territory of
another State.
The actual enforcement of jurisdiction the operation of a police
force, national courts, etc. is limited to the territory of the State
asserting jurisdiction.
[If a man commits a murder in Malaysia and escapes to Indonesia,
the Malaysian courts have jurisdiction to try him, but the Malaysian
police cannot enter Indonesian territory and arrest him there.]
Principle of territorial sovereignty: a State may not perform any
governmental act in the territory of another State without the
latters consent.
Types of jurisdiction
Exclusive and concurrent jurisdiction.
Criminal and civil jurisdiction
Moreover, the witnesses and the evidence are likely to be within the
territory of the state where the crime was committed.
Extension of the territorial principle [p. 146]
The Harvard Research Draft Convention proposed that a State be
allowed territorial jurisdiction when a crime is committed in whole
or in part within its territory. A crime is committed in part within
the territory when any essential constituent element is
consummated there.
It means that due to the modern development of inter-state
transactions, territorial principle should be extended to include:
(1) Subjective territorial principle; and
(2) Objective territorial principle.
According to the subjective territorial principle, a State has
jurisdiction over offences commenced in its territory but completed
or consummated abroad.
Generally accepted and often applied is the objective territorial
principle, according to which a State has jurisdiction when any
essential constituent element of a crime is commenced in another
state but completed or consummated in its territory. The classical
example is the firing of a gun across a frontier causing a death on
the territory of the forum.
Objective territorial principle
The leading case on the objective territorial principle is the Lotus
case (France v Turkey) (1927) P.C.I.J. Rep. Ser. A, No. 10.
In this case, there was a collision on the high seas in the
Mediterranean between a French steamer, the Lotus, and a Turkish
steamer, in which the latter was sunk with the loss of life of eight
Turkish sailors. Upon arrival of the Lotus at a Turkish port, its
French officer of the watch, Lieutenant Demons, was arrested on
the criminal charge of manslaughter. France objected to the Turkish
exercise of jurisdiction over its national.
The P.C.I.J. held that the Turkish vessel was to be assimilated to
Turkish territory, and decided that Turkey was entitled to exercise
jurisdiction because a constituent element in the offence of
manslaughter death had occurred on Turkish territory.
The World Court in the Lotus case recognizes the objective
territorial principle. (It is said that the majority probably supports
the passive personality principle as well. However, Judge Moore
dissented arguing that it was inconsistent with international law)
The objective territorial principle can also be applied in cases of
conspiracy, and violation of anti-trust and immigration laws by
activity abroad.
The case in point is D.P.P. v Doot [1973] A.C. 807 HL, where the
respondents were foreigners convicted of conspiracy to import
cannabis into the United Kingdom. The agreement amounting to
the conspiracy had been made abroad before the respondents were
arrested in England while in the course of carrying it out.
The House of Lords held that the English courts had jurisdiction in
the case because the offence continued to occur in England while
steps were being taken in concert there to carry out the purpose of
the conspiracy.
2. 2 Nationality Principle
International law permits a state to exercise jurisdiction over its
nationals for crimes committed anywhere in the world. The
jurisdiction of course will not be exercised until the national
physically comes within the territory of his or her home state.
Some countries claim jurisdiction on the basis of some personal
link, other than nationality, for instance, crimes committed abroad
by their permanent residents. In a few cases, the UK has also based
jurisdiction on residence.
6. 2. 3 Protective Principle
According to the protective principle, a state can punish acts
prejudicial to its security, integrity, or national interest, irrespective
of where those acts take place or by whom they are committed.
During the 19th century, continental countries began to claim
jurisdiction over acts committed by aliens abroad which threatened
the State.
19
Joyce v DPP
Joyce was charged with treason for having made propaganda
broadcasts to the UK from Germany for the German Government.
He argued that as he was a US national, he owed no allegiance to
the Crown and hence could not be guilty of treason.
The H L found that as the accused was holder of a British passport
(even though the passport had been obtained by fraud), he owed
the Crown allegiance and was guilty of treason.
The abhorrent crimes are not crimes under Israel law alone.
These crimes, which struck at the whole of mankind and shocked
the conscience of nations, are grave offences against the law of
nations itself (delicta jure gentium). The jurisdiction to try crimes
under international law is universal.
It is, therefore, well established that genocide, war crimes, and
crimes against humanity are international crimes that attract
universal jurisdiction.
Other crimes of international concern, established by more recent
conventions, relating to hijacking of aircraft, sabotage, torture,
terrorism, hostage-taking, and drug-trafficking, raise questions as to
the legal basis of the alleged universal jurisdiction.
Such conventions create an obligation to prosecute or to extradite
the accused (aut dedere aut judicare).
It is, however, difficult to accept that such treaties, which are
binding only among the parties to them, by themselves create true
universal jurisdiction in relation to non-parties.
2. 4 Universality Principle
2. 6 Conflict of Jurisdiction
Two or more States may be entitled to exercise jurisdiction over the
same person in respect of the same event. This is known as
20
R. v Hartley
[1978] 2 NZLR 199 New Zealand [p. 161]
By virtue of a request by telephone from the New Zealand police,
the Australian police seized the accused by force in Australia and
put him on a plane to face murder charge in New Zealand.
The New Zealand Court held that it lacked jurisdiction because the
accused was brought to New Zealand by means of abduction, i.e., in
an illegal manner.
R v Horseferry Road Magistrates Court, ex parte Bennett
[1993] 3 All ER 138 [p.162]
Benett, a New Zealand citizen, was wanted in the UK in respect of
allegations of fraud. Benett was located in South Africa and the UK
police asked the South African police to send him forcibly to the
UK. This was done.
The HL held that, if Benett could prove his allegations, there would
have been an abuse of the process because the manner by which he
came before UK courts would have been a violation of international
law and the rule of law.
The above analysis clearly shows that male captus, bene detentus
rule is accepted by some courts and rejected by others.
Since there is no consistent State practice in this respect, we can
fairly conclude that it cannot be said as an established rule of
customary international law.
3. 2 Abduction of the Accused from a Foreign Country: a
Violation
of International Law [162-64]
In a case of abduction, violations of international law may be
involved in three ways:
(1) violation of territorial sovereignty of
another State[art. 2(4) of UN Charter; Lotus
case, Corfu Channel case];
(2) violation of the fundamental human rights of
the abducted person [UDHR: Art. 9; no one
shall be subjected to arbitrary arrest or
detention]; and
(3) violation of the extradition treaty (if any).
4 EXTRADITION
Eichmann case
[p. 160]
In this case, Eichmann was abducted in Argentina by persons who
were probably agents of the Israeli Government and abducted to
Israel without the knowledge of the Argentinean Government.
He was prosecuted under war crimes, genocide and crimes against
humanity. He was convicted and sentenced to death.
21
22
23
Two ships, The Playa Larga and The Marble Islands, were carrying
sugar to Chile on behalf of a Cuba State-trading enterprise. After a
right-wing party seized power in Chile, the first ship, owned by the
Cuban Govt., was ordered to return to Cuba with most of her sugar
unloaded, and the second ship, chartered by the Cuba Govt., was
ordered to Vietnam where the sugar was sold.
The plaintiffs, who were owners of the sugar, brought an action in
rem against I Congreso, a ship also owned by Cuba (sister ship).
Cuba claimed state immunity.
The case was decided at common law, the issue arising before the
State Immunity Act, 1978. The immunity was denied.
On the facts of the case, the initial act was a contract for the supply
of sugar and this was clearly a private law act because it could have
been done by any private individual. What, then, is the act which
caused the dispute the second act the diversion of the ships and
the discharge of the cargo to third parties?
In respect of The Playa Larga, which was actually owned by the
Cuban State, the act of diverting it was one which any owner
exercising the normal powers of ownership could have achieved. It
was, therefore, a private law act and there was no immunity.
In respect of The Marble Islands, this was a chartered ship and not
owned by Cuba at the relevant time and for two law Lords the order
diverting it did not seem to be done as owner but in exercise of
sovereign authority.
However, a majority of the HL thought that the act of discharging
the cargo at another destination was a private law act, being similar
to the tort of conversion. Therefore, Cuba was not immune.
In both cases, the initial act and the act that gave rise to the dispute
were private law acts and it was held that there could be no
immunity.
All of the law Lords in this case agreed with the two-stage test or
the nature of the act in its context approach in principle although
two law Lords disagreed with the actual application of the principle
in respect of The Marble Islands.
The nature of the act in its context approach was also applied in
the following cases:
(1) Littrel v USA (No.2) [1995]1 WLR 82; and
(2) Holland v Lampen-Wolfe [2000] 1 WLR 1573.
Village Holdings Sdn. Bhd. v Her Majesty the Queen in Right of Canada
[1988] 1 CLJ 878 (High Court of Kuala Lumpur)
This case clearly illustrates that at that time Malaysian courts
followed the doctrine of absolute immunity.
However, a fundamental change of the law has taken place as a
result of a landmark decision of the Supreme Court of Malaysia in
Commonwealth of Australia v Midford (Malaysia) Sdn. Bhd.
We were of the view that the acts of the two Australian Customs
officers could not be classified as trading or commercial and
agree that the exercise of the functions of the customs arm of the
Australian Governmentcould not be classed as acta jure gestionis,
i.e. commercial in accordance with accepted international standards
and were therefore acta jure imperii. In applying the doctrine of
sovereign immunity our courts should havedisclaimed
jurisdiction in this case
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25
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3 IMMUNITY OF INTERNATIONAL
ORGANIZATIONS
As international organisations are vested by States with important
functions, they require privileges and immunities for the effective
exercise of their functions.
There is a major difference between diplomatic immunity and
immunity of IOs.
The diplomat who is immune from the jurisdiction of the receiving
state is under the jurisdiction of his own State whereas no such
jurisdiction exists in case of the immunity of IOs.
The UN is the most important international organization of the
present day and any study on immunity of international
organizations should start with the privileges and immunity of the
UN.
First, Article 104 of the Charter provides that: 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.
Again, according to Article 105 of the Charter:
Article 105
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 UN and officials of the
Organisation shall similarly enjoy such privileges and immunities
as are necessary for the independent exercise of their functions.
3. The GA may make recommendations with a view to determining
the details of the application of this Article or may propose
conventions to the Members of the UN for this purpose.
3. 1 Convention on the Privileges and Immunities of the United
Nations, 1946
By virtue of Article 105(3) of the Charter, the General Assembly
adopted the Convention on the Privileges and Immunities of the
United Nations, 1946 and the Convention on the Privileges and
Immunities of the Specialised Agencies, 1947.
According to the former, the United Nations Organisation has
complete immunity from all legal process.
Its premises, assets, archives, and documents are inviolable.
The Secretary-General and the Assistant Secretaries-General of the
United Nations can enjoy the same privileges and immunities as the
head of a diplomatic mission does.
Other officials of the United Nations have only limited immunities,
such as immunity from legal process in respect of their official acts.
In respect of experts performing missions for the United Nations,
Section 22 of the Convention provides that:
Experts performing missions for the United Nations shall
immune from legal process of every kind, in respect of words
spoken or written and acts done by them in the course of the
performance of their mission.
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