RELATION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW

 Dualism: separate IL from ML

Procedure:
- int’l courts resolve problems by referring to
IL
- municipal courts – municipal law
Subject-matter:
- purview of IL – problems affecting int’l
relations
- purview of ML – problems affecting individual
relations
 Dualism
- If IL is applied within a State’s jurisdiction –
mere exercise of authority of ML & there will
be transformation of IL rules
- if there’s conflict – municipal court will apply
ML
 Monism
- Both IL & ML form part of the same legal
order – based on the same basic norm
(grundnorm)
- If ML conflicts with IL – IL will prevail
- direct application of IL into municipal legal
structure
 General rule: States can’t use ML to break a stipulation in IL @
breach int’l obligation (custom/treaty)

 Art. 27 VCOLT 1969 – “a party may not invoke the provisions of

its internal law as justification for failure to perform any treaty..”

 Alabama Claims Arbitration

UK – no legislation (domestic) preventing manufacturing & departure of
vessel
Held: It couldn’t be defence to non-fulfilment of obligation of neutrality
in American Civil War
Thus Britain was liable to pay compensation for the depredation
caused by the warship
 Other cases:
Lockerbie Case, ICJ Reports, 1992 (Judge
Shabaudeen’s decision at p. 3, 32)
Elettronical Sicula SpA (ELSI) Case, ICJ Reports, 1989
p. 15, 73-74

 Failure to conform not in itself a direct breach of IL.

There is breach only if the State fails to observe an
int’l obligation in a specific case.
 But ML is still necessary & relevant to the operation of IL

(i) as evidence of int’l custom & GPL

Barcelona Traction, Light & Power Case (Belgium v. Spain)

(ii) To understand & discover a State’s legal position on variety

of topics important to IL

e.g. opinion on extent of territorial sea

(iii) As evidence of compliance/non-compliance with int’l
obligations

Certain Germany’s Interest in Polish Upper Silesia’s Case

Held (PCIJ):
“The Court is not to interpret Polish law, nothing prevents the
Court from giving judgment on the question whether or not
applying that law, Poland is acting in conformity with obligations
towards Germany under the Geneva Convention”
Doctrine of Incorporation & Doctrine of Transformation

 Doctrine of Incorporation – IL is regarded as automatically

incorporated into ML
So IL is ipso facto part of ML

 Doctrine of Transformation – a rule of IL bcomes part of

ML only after transformation into ML by means of statutes

 To determine which applies – can look to consti law of

States
Application of
incorporation doctrine
• Blackstone’s commentaries
• Buvot v Barbuit
Qualifications for
incorporation doctrine
• R v Keyn
• West Rand Gold Mining case
• Chung Chi Cheung v R
 Apply doctrine of incorporation
 Blackstone in his commentaries:
“the law of nations,…, is here adopted in its full extent
by the common law, and it is held to be part of the law
of the land”
 Buvot v Barbuit – held: a Prussian commercial agent
could not be held liable for not performing a decree
Lord Talbot – “law of nations…part of law of England”
 Triquet v Bath – followed decision in Buvot
Issue – whether domestic servant of Bavarian Minister
to Britain could claim diplomatic immunity
Held – yes
Lord Mansfield – privilege of foreign ministers & their
domestic servants depend on law of nations. Act of
Parliament…is declaratory of it
 Buvot & Triquet – most commonly cited in support of
the incorporation doctrine
 R v Keyn (the Franconia case)
German ship) collided with British ship w/in 3 miles off
English coast
German captain prosecuted for manslaughter of
passengers on board the British ship.
Issue – whether the defendant fell under English court’s
jurisdiction (no law providing jurisdiction at that time)
Held – English courts didn’t have jurisdiction
No legislation existed providing for jurisdiction within
territorial sea around the coast.

# Is evidence of custom needed?

 West Rand Gold Mining Co – if got common consent
from civilised nation, got assent of GB & applied by
municipal tribunals & acted upon by our country @ very
hard to suppose a civilised country will repudiate it

 Doctrine of incorporation also received recognition in

Chung Chi Cheung v R
 Chung Chi Cheung v R
Lord Atkin came up with modified version of the
incorporation doctrine
“IL has no validity except in so far as its principles are
accepted & adopted by our own domestic law…the courts
acknowledge the existence of a body of rules which nations
accept among themselves.
On any judicial issue they seek to ascertain & find the
relevant rule, and treat it as incorporated into the domestic
law, so far as it is not inconsistent with rules enacted by
statutes & finally declared by their tribunals.”
 Lord Mansflied’s decision in Triquet (common law
include CIL) can’t be interpreted to include what is in
the textbook which no evidence shows that Britain
ever assented (part of judgment in West Rand)

 But according to Shaw – IL not a foreign law (no need

to be proved as fact by evidence) but as part of the
law of the land (ct. may take judicial notice)
 Trendtex Trading Corp v Central Bank of Nigeria
CBN claimed sovereign immunity & clear precedent by
UK court on principle of absolute immunity.
The ct. however applied restrictive immunity (IL
changed from AI to RI)

 Issue – stare decisis?

 Trendtex Trading Corp v Central Bank of Nigeria
Ct departed from Thai Tapioca v. Govt of Pakistan
[1975] 3 All ER 961 & held that:
- no SD in IL
- no need to wait HoL to change the rule of IL when it
had changed
- so doctrine of incorporation was applied – reasoning
– to let a change in IL rule. But it was done with
modification
 2 qualifications to incorporate IL in Trendtex & Chung
Chi Cheung
CIL not consistent with (1) statutes & (2) JD of final
authority

 So if CIL conflicts with Act of Parliament – the latter

shall prevail - Mortensen v Peters
Lord Dunedin – If CIL conflicts with statute the latter prevails
though there's a presumption that statute must be construed so
as not to violate CIL

However it was admitted by UK official that the Act conflict with

IL.

Moreover superiority of the Act does not prevent a delict from

being committed by the UK.
 Applies transformation doctrine – there must
be enabling statute for a treaty to have legal
effect.

 Parlement Belge case

 AG for Canada v AG for Ontario (per Lord

Atkin)

 International Tin Council case

 Taking judicial notice of IL

 Role of Executive certificates – Duff

Development v. Govt of Kelantan
 Similar to British practice:

 CIL – deemed part of law of the land unless conflict with national law
 Treaty – parliamentary enactment is needed in 0rder to have effect in
national law

 Emerging flexible approach:

 Min. of Immigration v Teoh (Aust. Case): ratification of convention –

legitimate expectation that administrative decision-makers would act
in conformity with the unincorporated but ratified treaty.

 Hosking & Hosking v Runting (NZ case): traditional approach is too

rigid; need to make common law in line with treaties

 Mugesera v Canada: use of international law to interpret domestic law

 Follows GB – incorporation theory
Paquete Habana Case – “IL is part of law & must be
ascertained & administered by the courts of justice of
appropriate jurisdiction as often as questions of rights
depending upon it are duly presented for their
determination”
 But if contradicts statutes, CIL will be ignored –
Committee of US Citizens Living in Nicaragua v Reagan
 Art VI of US Consti – treaties – supreme law of the land
(together with Consti & federal laws of US)
 Article VI had been used by US (Supreme) courts to strike
down state laws that conflicted with Peace Treaty with
Great Britain in the 1800s (Ware v Hylton).
 Article VI implies treaties have automatic domestic legal
force and & courts have to give them effect directly.
 This does not mean treaties may be enforced in court by
any individual at any time.
 It is to superimpose nation's treaty obligations, the
Constitution and federal statutes, on the existing corpus
juris of the states as supreme federal law.
 Missouri v Holland - Article VI was used by the
Supreme Court to declare that supremacy is in the
form of ability of the Congress to make treaties which
is supreme over federalism concerns of the states.
 Art II – President can ratify treaties only with 2/3
support from senators

 Self-executing & non-self-executing treaties:

Self-executing – judicially enforceable automatically
upon ratification
Non-self-executing – judicially enforceable
through the implementation of legislation

 How to distinguish between the two – 4 different

doctrines
 Only treaties that "operate of themselves" are applicable by the
courts without legislative implementation.
 To determine the above, court will look to the intent of the treaty -
whether affects rights & liabilities of individuals before court
which are to be enforced not through future legislative act.
 Issue – whether Spanish grants can be automatically enforced.
There was a treaty that transfer such grants to the US.
 Court looks to the words of the treaty,
▪ If “hereby granted”, can operate of themselves – self-executing
▪ But if to “remain ratified and confirmed” – not – requires future act by the State
▪ In this case, the second type of wording was used, so the treaty needs a
legislative act
 The direct enforceability of treaties can be
altered by parties to the treaties.
 But some judges departed from this – only
the intent of the US treaty makers
(negotiators, President & Congress) matters.
 So may not look to text, but to negotiating
history of the particular treaty.
 The court decides whether treaty is not
justiciable or cannot be judicially enforced.
 How / when? If contains political questions.
 What is political questions?
 Matters which can be addressed through the
political process.
 E.g. – matters that require the extraction of public
opinion.
 They should be dealt with by Congress
 Factors to be considered:
 Nature of obligations imposed by the treaty
 Availability & feasibility of alternative
enforcement mechanisms
 Availability of right of private action
 Capability of judiciary to resolve the
dispute/enforce the treaty

 Some treaties don’t contain obligations but

only aspirations.
 Treaty that purports to restrict rights under
US constitution requires legislative
implementation.
 Examples of non-self-executing treaties:
 Treaties that purport to raise revenue
 Treaties that purport to make conduct criminal
 Treaties that purport to appropriate money
 May relate to the justiciability doctrine.
 If treaties only impose primary obligations on individuals &
government officials but do not speak about enforcement:
 They are non-self-executing

 But if they address “private enforcement” they are self-

executing.
 Private individuals may enforce treaties both as plaintiffs
& defendants.
 Enforcement can be by way of common law or statutory
enforcement.
 Sei Fujii v California – Sei Fujii purchased land in
California. Californian legislation did not allow aliens to
acquire land . SF argued that such law contradicted
with UN Charter
Held – UNC – non-self-executing
 Reception of international law in Malaysia – Federal
Consti. is silent.
 2 phases:
 Before independence
 After independence

 Before independence – identical with British practice

(CIL & treaties).
 After independence:
 Treaties – remains unchanged
 CIL – incorporation doctrine is no longer accepted by pure
Malaysian courts
 FC is silent on incorporation of IL.
 But there are certain relevant provisions:
(i) Art 74 – Parliament’s power to make law (Fed. & Concurrent
list)
External affairs – Federal list
(ii) Art 76 – Parliament can make law rel. to State list except
Islamic law – So when implement a relevant treaty, must consult
the State Govt.
(iii) Art 80 – Fed executive has authority extending to matters
which Parliament has power to make law – so treaty-making
power is held by the Fed. Executive.
 Govt of Kelantan v Govt of Malaysia & TAR
Kelantan challenged constitutionality of Malaysian Act &
Agreement. Kelantan argued – should have obtained
consent of individual States.

Held: constitutionality affirmed coz Agreement was part of

external affairs

 In order to be made operative locally, Parliament to make

law to enforce the treaty (transformation doctrine).
 “...reference to international standards set by
the Universal Declaration of Human Rights
1948…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 provisions of the Convention on the
Rights of a Child have not been incorporated
into the municipal laws of Malaysia…It is not
open therefore for the High Court to imply
such a provision for that will not be
interpretation. It may amount to judicial
vandalism or judicial trespass.”
 Latest development in Malaysian case law.
 Facts – withdrawal of offer of employment
(temporary teacher) because of being
pregnant.
 Issue – whether amounts to gender
discrimination under Art. 8 of FC.
 Relative issue – whether Court was right in
referring to Convention on the Elimination of
All Forms of Discrimination against Women
(CEDAW)
 Held:
 The word "gender" was added to art. 8(2) to comply
with Malaysia's obligation under the (CEDAW). This is
clearly illustrated in the Minister's speech in the
Hansard…
 Court referred to provisions of CEDAW.
 Court distinguished CEDAW from UDHR (in Mohamad
Ezam) – CEDAW is not a declaration.
 it has become the obligation of this court to have
regard to Malaysia's obligation under CEDAW in
defining equality and gender discrimination under art.
8(2) of the Federal Constitution
 Pre-independence – courts applied doctrine of
incorporation

 the same applies to post-independence cases decided by

non-Malaysian courts
 Sockalingam Chettiar v Chan Moi

Pl. claiming ejectment of def. (tenant) from land granted to him

through an LA. Def. – LA invalid coz issued by Japanese
authority. Issue: whether juridical acts at law @ between parties
during time of invasion & caused by invaders remained good.
District Ct. – LA invalid; Appeal Ct. – it remains good

Held: Ct referred to IL (Art 23(b) of Reg. Of Hague Convention

Respecting the Laws & Customs of War on Land), which also
contains CIL rule.
 PP v Ooi Hee Koi

Accused captured during Indonesian confrontation having landed &

infiltrated into Malaysian territory armed & accompanied by
Indonesian military personnel. Accused was tried, convicted &
sentenced to death under ISA. Accused claimed that they were
PoW & protected by the Geneva Convention. FC – Yes they
were.
 Ooi Hee Koi (cont’d)
PC - referred to CIL regarding privileges not to be
treated as criminals. Member of belligerent armed forces
don’t have such privileges. But read together with Art 87
& 100 (when passing sentence ct. must consider if not a
national of the detaining power, no duty of allegiance).
Held – since they were Malaysian nationals – not PoWs
 Post-independence:

- S.3 CLA 1956 – Ct apply English common law & rules of

equity…

- British practice – incorporation doctrine – CIL is part of

common law unless it contradicts with statute @ JD.

- B.v. of S.3 – doctrine of incorporation is also applied in

Malaysia
 Village Holdings Sdn Bhd v Queen of Canada

Held (HC) – S. 3 CLA makes Malaysia continue to adhere

to pure absolute doctrine of State immunity when it
comes to impleading foreign sovereign who declines to
submit (which is a CIL principle incorporated into
English common law)
 Commonwealth of Australia v Midford
Issue – whether Australia is entitled to immunity in
respect of seizure of property by its Customs Officers.
Ct (SC) to decide whether to follow legal position
(common law) in England before 1956 (absolute
immunity) or after 1956 (restrictive immunity).
Having S. 3 CLA in mind, the SC followed the position in
England after 1956
 Non-recognition of doctrine of incorporation?
 PP v Narogne Sookpavit
foreign fishermen caught 3 n.m off Malaysian coast.
Claimed right of innocent passage.
Held (HC) – though the right is in CIL & should be part of
common law, the right is not available coz the rule
contravenes domestic legislation.
 PP v Rajappan : international law recognises power to
punish for acts committed outside territory but to translate
into municipal law, there must be clear provision
 FC is silent – but there’s JD – statute shall prevail

 PP v Wan Ah Jee:
Held: “The courts here must take the law as they find
it expressed in the Enactments. It is the duty of a
judge/magistrate to consider whether the law so set
forth is contrary to IL or not.”
 MBF Capital v Dato’ Param Cumaraswamy vs Difference Relating to Immunity
from Legal Process of a Special Rapporteur of Commission of Human Rights

 MBF Capital: Special Rapporteur to UN Commission on HR gave interview

to a magazine – companies filed defamation suit
▪ Whether enjoyed immunity under Privileges & Immunities of UN
Convention?
▪ S-G of UN issued a cert. stating he was entitled to immunity
▪ Held: cert. is only opinion & was disregarded.
 Govt of Malaysia & UN referred the matter to ICJ (Advisory Opinion)
▪ Concluded: (1) SR was entitled to immunity, (2) GoM has duty to inform
courts about the matter
 Insas Bhd v Param Cumaraswamy:
 Held: while court might disagree with certain aspects of the decision of
ICJ, the court was bound to give legal effect to the advisory opinion
Constitutions with explicit incorporation of CIL

 Germany:
- Art 25 of Basic Law (Consti.) of Germany – gen rules of
IL shall be an integral part of federal law & they shall take
precedence over the law & create rights & duties for
inhabitants of the federation.
- however the direct effect of IL to German citizens only
limited to CIL

 Italy – Art. 10 of the Italian Consti – Italian LS conforms to

generally recognised principles of IL. So Italian ct’s can
apply CIL which prevails over statute law
Constitutions with explicit incorporation of treaties

 France:
- IL rules acknowledged in preamble to the French
Consti. 1958.
- CIL – can be directly applied in French courts
- treaties – Art. 53 of French Consti - some
categories of treaties (like commercial treaties),
treaties that commit the finances of the State, that
modify statutory provisions, or relate to the status of
persons – must be ratified/approved b.v. of Act of
Parliament.
 Netherlands
 CIL can be applicable but if conflict with statute,
statute will prevail.
 Treaties – binding on all persons only after they are
published (Art 93 of Dutch Consti)
 Statutory provisions not applicable if their application
conflicts with such treaties (Art. 94)
 Switzerland – Art 113 of the Swiss Consti – ratified treaties
must be complied by Swiss Federal Tribunal (they have force of
law & prevail over prior national legislation). CIL can also be
applied without transformation into Swiss law.
 Rep of Korea – Art 6 of Consti of Rep of Korea:
“treaties duly ratified and promulgated in accordance
with this Constitution and the generally recognized
rules of IL shall have the same effect as domestic laws
of Korea”
 Japan – Art 98 of Consti of Japan – “treaties
concluded by Japan & established laws of nations shall
be faithfully observed”
 EC law is sui generis
 2 basic principles:
1. Direct applicability
2. Supremacy of Community law

 Monist nature of EC law – for integration.

 Conflict between EC law & IL:
 EC law can be invalid if the rule of IL is self-executing

 EC law in UK
 Has been incorporated via European Communities Act – Section 2:
 All rights, powers, liabilities, obligations & restrictions under EC
treaties are given legal effect in UK w/out further enactment.
 Conflict between EC treaties & UK law – the former prevails