TUTORIAL QUESTIONS FOR WEEK 6

RELATIONSHIP BETWEEN INTERNATIONAL LAW &

MUNICIPAL LAW

1. Discuss the Theories as to Relationship Between International Law and

Municipal Law.

Dualism

International and municipal law exist as two separated, distinct sets of legal
orders. Differences as in the subjects, sources, content. Requires transformation of
international law into municipal law to make international law binding on the
municipal authorities (incorporation). National law has priority over international law
that has not been incorporated.

Monism

Municipal law and international law as one unitary, coherent system. International law
at top of pyramid, (in)validating acts of domestic legal systems. In case of conflict,
international law prevails. No need for transformation of international law into
municipal law.

2. Define the terms doctrine of incorporation and doctrine of transformation.

Doctrine of Transformation

International law is not part of municipal law. Rules of international law do not
become part of domestic law until they have been accepted by the state. A national
court cannot directly apply a rule of international law until that rule has been
transformed into national law properly.

Doctrine of Incorporation

International law is regarded as automatically incorporated in municipal law. Rule of

international law becomes part of national law without a need of clear acceptance by
domestic authorities.

3. Discuss the Malaysian practice regarding the application of international law in

the national legal system.

(1) the reception of treaties a treaty to be operative in Malaysia needs legislation by

the parliament
 (2) Conflict between International law and Municipal law the general rule is that
statute shall prevail but the state shall take the responsibility for the breach of
International law.

The Federal Constitution of Malaysia, unlike the constitutions of some other States,
does not contain any provision which says that international law shall be deemed part
of the law of the land or that treaties shall be the laws of Malaysia. Nevertheless,
certain provisions of the Constitution deal with treaty-making capacity in Malaysia.

According to Article 74(1) of the Federal Constitution, Parliament may make laws
with respect to any of the matters enumerated in the Federal List or the Concurrent
List. The Federal List in the Ninth Schedule includes:

1. External Affairs, including

(a) Treaties, agreements and conventions with other countries and all matters
which bring the Federation into relations with other countries;

(b) implementation of treaties, agreements and conventions with other countries

We can conclude from the wordings of Articles 74, read together with the Federal
List, that the Federal Parliament has the exclusive power to make laws relating to
external affairs (including treaties, agreements and conventions) and that it has the
power to implement international treaties and make them operative domestically.

4. The general rule is that in the case of a conflict between international law and
municipal law, international law prevails. Discuss with reference to the State
practices.

If there is such a conflict between International law and Municipal law, the general
rule is that the statute shall prevail. P.P. v Wah Ah Jee is illustrative of the point. The
learned judge in this case stated

the Courts here must take the law as they find it expressed in the Enactments. It is not
the duty of a Judge or Magistrate to consider whether the law so set forth is
contrary to international law or not.

This idea is based on the common law principle of the supremacy of an Act of
Parliament although there is a prima facie presumption that Parliament does not
intend to legislate in breach of international law

However, the state shall take the responsibility for the breach of International Law.
Article 27 of the Vienna Convention on the Law of Treaties 1969 reaffirms this
principle in these terms: A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.
 The Alabama claims case between the United States and the United Kingdom
following the American Civil War

5. Can a principle of municipal law be applied as a source of international law by

the World Court? Discuss.

6. How do rules of international law operate in the national legal system? Discuss.