Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
Chapter 1: The Nature and Development of International Law
A. What is International Law?
1. Traditionally, international law defines as the law that governs the states in their relation to
one another.
2. According to Oppenheim, international law is the body of rules which are legally binding
on states.
3. Von Glahn on the other hand defines international law as a body of principles, customs,
and rules recognized as effectively binding obligations by sovereign states and such other
entities have been granted as international personality.
4. According to Jeremy Bentham's classic definition, international law is a collection of rules
governing relations between states.
5. After that, the application of international law not only extends to states, but also to
international organizations as well as private individuals.
6. International law is an independent system of law existing outside the legal orders of
particular states. For an example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only as
recommendations.
7. There is no system of courts with comprehensive jurisdiction in international law. The
ICJ's jurisdiction in contentious cases is founded upon the consent of the particular states
involved. There is no international police force or comprehensive system of law enforcement,
and there also is no supreme executive authority.
8. The UN Security Council may authorize the use of force to compel states to comply with
its decisions, but only in specific and limited circumstances. Moreover, any such enforcement
action can be vetoed by any of the council's five permanent members (China, France, Russia,
the United Kingdom, and the United States).
B. Public and Private International law
1. Public International law deals with states whereas private international law deals with
individual and corporation.
2. Private International law sometimes refers as conflict of law. People will involve in private
and commercial matter which involves a foreign element. The example of foreign element is
whereby a foreigner came to Malaysia to start a business. It is not fair for a local court to
decide according to the local law only.
3. Another instance of private international law is when Malaysian get married to a Australian
man. However, they decided to get into divorce. The question now is which law is applicable
in their marriage? Malaysian law or Australian law?
4. Hence, private international law will guide you to the solution and to settle the choice of
law. Private international law denotes the private transaction between the individual and it is
merely part of domestic law of a state.
5. Public International law on the other hand traditionally defined as the law that governs
states in their relations with one another.
6. The example of public international law is World Health Organization (WHO),
International Criminal Court and other world organization.
No.
Public International Law
Private International Law/Law of Conflicts
1)
Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities.
Conflict of laws, often called Private International Law. Private International Law regulating
relationship between Private persons (Natural or Legal) of two different States.
2)
Public International law rules are outcome of International custom and treaties.
Private International law rules are framed by the State legislature.
3)
Public International law is enforced by international pressure and fear for example breakage
of diplomatic relations, sanctions etc.
Private International Law is enforced by the concerned State executive.
4)
In public International Law there is no Predetermined Court.
In private International Law courts are predetermined.
5)
Public International Law is same for all the States.
Private International Law differ from state to state.
C. Distinction between international law and national legal system
1. National law, which is often referred to as domestic law, are those laws that exist "within"
a particular nation (State).
2. National laws are also recognized as the expression of the State itself, since it emanates
from the local authority, which could be the law making institution, such as the United States
Congress or the French Parliament.
3. In some States, called States with a common law tradition, laws could also come from
decisions made by judges, which is also called case law. Other States, called States with a
civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.
4. In national legal system, the Government can exercise supreme authority and has three
sovereign functions: law making, law determination and law enforcement. (Represents the
legislative, judiciary and executive power of the state).
5. In national legal system, as long as you are in Malaysia jurisdiction and territory, you are
bound by the law and consent is not an issue in national legal system.
6. The sovereignty of the country is held in the national legal system whereby the country has
absolute power to its jurisdiction.
7. The international law on the other hand is defined as "law between nations (States)," which
stem from agreements, embodied in a treaty, or customs that is recognized by all nations.
8. According to Article 38 of the Statute of the International Court of Justice, sources of
international law, in order of precedence, are: (a) international conventions (treaties); (b)
international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; and (d) judicial decision and the teachings
of the most highly qualified publicists of the various nations.
9. International law requires consent. There can be no other higher authority above the
sovereign states and it is known as the horizontal legal system.
10. The major difference between the international law and national legal system is consent.
International law requires consent to be bound with it.
11. In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have
sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal
legislation includes bills and joint resolutions that are signed by the United States President
and made into law. As part of its decision, the Supreme Court needed to distinguish between
the joint resolution, being a Congressional law, and the power of the President under
international law.
12. The Supreme Court stated, "Neither the Constitution nor the laws passed in pursuance of
it have any force in foreign territory unless in respect of our own citizens, and operations of
the nation in such territory must be governed by treaties, international understandings and
compacts, and the principles of international law."
D. Major legal system of the World?
1. Civil Law. The civil law system is the most widespread legal system in the world. The
distinguishing feature of the civil law system is that its legal authority is organized into
written codes. Civil Law are codifications within a constitution or an amendable statute
passed by legislature. It is the most widespread system of law in the world. The civil law
system is derived from Roman law and is found in much of continental Europe, Central
America, South America, and several other regions.
2. Common Law. In contrast to the codified laws of the civil law system, doctrines and rules
developed over time by judges serve as "legal precedent" in the common law system. The
common law system is derived from the English common law and is found in many parts of
the English speaking world such as Australia, Canada, England, the United States, Wales, and
other countries. One of the most fundamental documents to shape Common Law is the
Magna Carta which placed limits on the power of the English Kings. It served as a Bill of
Rights for the aristocracy and the judiciary who developed the law.
3. Customary Law. Customary law is rooted in the customs of a community. Common
attributes of customary legal systems are that customs may be unwritten, customs govern
social relations, and customs are widely accepted by the community's members. Customary
law systems are found in Africa, the Pacific Islands, and elsewhere.
4. Religious Law. The religious law system is a legal system that is based on religious beliefs
or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it
governs all aspects of public and private life. Islamic law systems are found throughout
Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among
Muslim countries.
5. Legal Pluralism is the existence of multiple legal systems within one geographic area.
Plural legal systems are particularly common in former colonies, where the law of a former
colonial authority may exist alongside more traditional legal systems. When these systems
developed, the idea was that certain issues (e.g., commercial transactions) would be covered
by Common Law, while other issues (e.g., family and marriage) would be covered by
Traditional Law. Legal pluralism also occurs when different laws govern different groups
within a country. For example, in India and Tanzania, there are special Muslim courts that
address concerns in Muslim communities by following Islamic law principles. Secular courts
deal with the issues of other communities.
E. Legal system practiced by Malaysia practice of International law in Malaysia.
1. Malaysia practices the mixed legal system which includes the Common Law, Islamic law
and Customary Law. Malaysia's legal system comprises laws which have arises from three
significant periods in Malaysian history dating from the Malacca Sultanate, to the spread of
Islam to Southeast Asia, and following the absorption into the indigenous culture of British
colonial rule which introduced a constitutional government and the common law. Malaysia's
unique legal system is designed to balance the delicate racial and religious needs of its
heterogeneous people. The Malaysian legal system law can be classified into two categories
which is the "Written" and "Unwritten law".
2. The "Unwritten law" does not mean that the law is literally unwritten. It refers to the laws
which are not enacted by the Legislature and which are not found in the Federal and State
constitutions. This category of law comes from cases decided by the Courts and the local
customs, which is otherwise known as "common law". The "unwritten law" mainly
comprised of the English law, judicial decisions and custom law.
3. On the other hand, "Written law" refers to the laws contained in the Federal and State
Constitutions and in a code or a statute. The written laws are much influenced by English
laws as the Malaysian legal system retains many characteristics of the English legal system.
The "Written law" includes the Federal and State Constitution, Legislation and Subsidiary
Legislation.
4. Islamic law is also a major source of Malaysian law which is enacted under the Federal
Constitution. It is only applicable to Muslims and is administered by a separate court system,
the Syariah Courts. The State legislature has authority over the constitution, organization and
procedure of the Syariah Courts and is also allowed to make Islamic laws pertaining to
persons professing the religion of Islam. F. Sources of International Law
1. The main sources of international law are treaty law, international customary law and
general principles of law recognized by civilized nations.
2. Treaties. Treaties are similar to contracts between countries; promises between States are
exchanged, finalized in writing, and signed. States may debate the interpretation or
implementation of a treaty, but the written provisions of a treaty are binding. Treaties can
address any number of fields, such as trade relations, such as the North American Free Trade
Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty.
They can be either bilateral (between two countries) or multilateral (between many
countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even found in a treaty themselves
the Vienna Convention on the Law of Treaties (United Nations, 1969).
3. Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called "state
practice") when they demonstrate that those states believe that acting otherwise would be
illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to
follow it. For example, for thousands of years, countries have given protection to
ambassadors. As far back as ancient Greece and Rome, ambassadors from another country
were not harmed while on their diplomatic missions, even if they represented a country at war
with the country they were located in. Throughout history, many countries have publicly
stated that they believe that ambassadors should be given this protection. Therefore, today, if
a country harmed an ambassador it would be violating customary international law.
4. General Principles of Law. The third source of international law is based on the theory of
"natural law," which argues that laws are a reflection of the instinctual belief that some acts
are right while other acts are wrong. "The general principles of law recognized by civilized
nations" are certain legal beliefs and practices that are common to all developed legal
systems. For instance, most legal systems value "good faith," that is, the concept that
everyone intends to comply with agreements they make. Courts in many countries will
examine whether the parties to a case acted in good faith, and take this issue into
consideration when deciding a matter. The very fact that many different countries take good
faith into consideration in their domestic judicial systems indicates that "good faith" may be
considered a standard of international law. General principles are most useful as sources of
law when no treaty or CIL has conclusively addressed an issue.
5. Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered "subsidiary means for the determination of rules of law." While these sources are
not by themselves international law, when coupled with evidence of international custom or
general principles of law, they may help to prove the existence of a particular rule of
international law. Especially influential are judicial decisions, both of the International Court
of Justice (ICJ) and of national courts. The ICJ, as theprincipal legal body of the United
Nations, is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may signal a
developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
6. Legal scholarship, on the other hand, is not really authoritative in itself, but may describe
rules of law that are widely followed around the world. Thus, articles and books by law
professors can be consulted to find out what international law is.
International Law as "Law"
1. If we accept that international law is law, the question arises is what the judicial basis is?
The most prominent doctrines are naturalism and positivism.
2. Natural law theory relates to what is right and wrong and what is good and bad. The
opposition of naturalism is positivism. According to Akehurst, law was largely positive and
might vary from time to time according to whim of the legislator
3. The next theory is the doctrine of consent whereby the rules of international law become
positive law when there is consent by the state expressly or impliedly.
4. The creation and the continuation of the legal system depend on the common consent of
the states. In another meaning, if there is no consent, there is no law.
Weaknesses of international law
1. Lack of effective institution
There is no legal authority that can make law in accordance with new needs in the
international community.
There is no legislative power and its decision is not binding and are politically motivated.
2. Lack of effective enforcement machinery
Lack of binding effect
International law is unique and essentially different from national legal system
3. Lack of political will on the part of States
States are reluctant to comply with international law when their vital interests are at stake
Violation of rule prohibit the use of force by states
Why do States observe international law?
1. Sense of obligation
2. Common self interest
3. Political and economic costs
Enforcement of International Law
1. Peaceful means of enforcement
Article 2(3) of Charter of the UN obliged member states to settle international disputes by
peaceful meansArticle 33 of Charter: negotiation, enquiry, mediation, conciliation, arbitration
and judicial settlement
State can have recourse to International Court of Justice, principle judicial organ of UN,
judgment is binding on parties
In the case of non-compliance, the enforcement arm of UN is through Security Council
2. Coercive means of enforcement
Non military means: self help, countermeasures, sanction
Self help can be applied when one state commits an illegal act against another state and
refuse to appear before an international tribunal
Self help is traditionally known as retorsion and reprisal
Retorsion: disruption of diplomatic ties (lawful because there is no obligation to have
diplomatic ties with another states), embargocs of various kinds and withdrawal of voluntary
aid programmes
Reprisals: illegal but rendered legal by a prior illegal act committed by the other States
Example of reprisals: State A confiscates property belonging to state B's citizens without any
justification; State B can retaliate by doing the same to the property of State A's citizen.
In the Gabcikovo-Nagymaros case, countermeasure is a measure adopted by one state in
response to another state prior failure to comply with its obligations under international law.
Countermeasures may be performed due to the wrongdoer state or its citizen for coercing
compliance with legal obligations
Countermeasures must be response to prior law violation
Military means (use of force): right of self defense under Art 51 of Charter (unilateral use of
force), enforcement measures by the Security Council under Chapter VII (Art 39-50) of the
Charter (collective use of force)
Development of International Law
1. Westphalia Treaty 1648 states that the origin of International law emerged in Europe in the
period after 1648.
2. The great Hindu epies, Ramayana and Mahabharata make reference to rules governing
peace, war and neutrality.
3. The Romans had a profound respect for organization and the law.
