Documente Academic
Documente Profesional
Documente Cultură
INTERNATIONAL
RELATIONS AND SECURITY
Wan Sharina Ramlah W.A.A. Jaffri
LL.B (Hons), East Anglia
LL.M (International Trade), Newcastle u. Tyne
Bar-at-Law, Lincoln’s Inn, London
OVERVIEW
• Definition and Functions of International Law
• Roles, Functions & Scopes of International Law
• Relationship between Municipal and International Laws
• International Legal Personality
• International Dispute Settlement Methods
• Sources of International Law
OVERVIEW
To get a credible and an authoritative version of the law – need both formal
and material sources
Functions of international law
(1) To safeguard the rights of States
- Sovereignty
- Equality
- Political independence
- Territorial independence
(2) To ensure States adhere to their responsibilities and duties vis a vis
other states
SCOPE of public international law
• Sovereignty and Privileges of States
• Territorial Rights Transnational organized Crimes
• Maritime Issues Terrorism
• Airspace Immigration
• Human Rights Customs
• Trade and Economics War and Peace
• Natural Resources Environment
• Social matters …and the list goes on…
Relationship between international law and
municipal law
If there is a conflict between IL and ML, which one prevails?
MONISM - “ IL and ML are two components within one legal body, operating within the same
sphere of influence and relating to the same legal subject, i.e. humans. In the final analysis, states
consist of humans, therefore IL also deals with humans.
Conflicts are inevitable => IL takes priority over ML.
Kelsen – The concept of “Grundnorm” (the basis of all laws).
Lauterpacht – IL guards human rights more, compared to ML.
DUALISM – IL and ML are totally independent of each other. Different in terms of Source, Purpose,
Substance. In municipal courts, apply ML. In International Tribunal, apply IL. For IL to become part
of ML, has to undergo due legislative process. Eg. Approval of parliament, etc.
International legal personalities
• Subjects which have locus standi under international law
• (i) States
• (ii) International Organizations (limited by their respective
Charters)
• (iii) Individuals (limited by international conventions conferring
rights and duties)
• (iv) Non-state actors
International legal personalities
ELEMENTS OF STATEHOOD -
Article 1 of the 1933 Montevideo Convention on Rights and Duties of States
provides 4 elements of Statehood –
(i) Defined Territory
(ii) Permanent Population
(iii) Government
(iv) Capacity to enter into relations with other State
QUESTION : IS THE LIST EXHAUSTIVE?
International legal personalities
ELEMENTS OF STATEHOOD -
Article 38(2) – Court may decide ex aequo et bono (according to the right and good) if
the parties agree thereto.
Sources of international law
TREATIES
International Agreements, Conventions, Protocols
Closest analogy to legislation that international law has to offer
“An agreement which is legally binding, signed by, and between two or more
international law subjects which are recognized as having the capacity to enter
into such agreements”.
Proactive – provide for future possibilities of disputes
Reactive – agreement signed to settle disputes
Sources of international law
TREATIES
Important source of IL :
- Clarity
- At negotiation stage states may voice concerns over certain issues
- May ascertain and solidify unwritten state practice
- Process of negotiation creates conducive diplomatic environment
Sources of international law
TREATIES
Pacta sunt servanda –
“Agreement must be kept”
Every treaty in force is binding upon signatory parties
General rule – only signatory states are bound
Sources of international law
TREATIES
Bilateral
Multilateral
Quasi-contractual : (i) self-executing (specific offer and
consideration)
(ii) non self-executing (e.g. Extradition
Treaty)
Quasi-legislative : Multilateral – dictate actions and behavior of
parties for a significant period of time (e,g. 1958 Geneva
Convention on the High Seas)
Sources of international law
TREATIES
Treaty Formation :
(i) Negotiation (Rounds)
(ii) Adoption (Draft Text of Treaty finalized)
(iii) Open for signature and signing
(iv) Acceptance : in principle => Ratification (Malaysia follows the Doctrine of Transformation. Rules of IL do
not become part of Municipal Law UNLESS they are transformed into ML by means of an Act of
Parliament) OR Accession
(v) Reservations re certain provisions of Treaties
(vi) Entry into Force – depends on criteria agreed upon by signatory states
(vii) Registration – UN Secretariat or any related IO. UN publishes UN Treaty Series annually
Sources of international law
TREATIES
Termination of Treaties –
(i) Invalidity – Eg. Unequal Treaties – rampant in 17th and 18th Centuries
Article 51 of the 1969 Vienna Convention on the Law of Treaties –
“… coercion upon State's representative expressing the latter's consent to
be bound, entails the absolute nullity of the treaty.”
Sources of international law
TREATIES
Termination of Treaties –
(ii) Change in circumstances – fundamental changes – force majeure (not
within the control of parties. Unforeseen circumstances which prevent
parties from fulfilling obligations under a treaty). Treaties may be
suspended or terminated depending on the scale of change concerned.
(iii) Mutual agreement
(iv) Desuetude
(v) In violation of jus cogens
Sources of international law
CUSTOMARY INTERNATIONAL LAW
• Unwritten laws.
• Two elements must be present concurrently :
• (i) State Practice AND
• (ii) Opinio Iuris sive necesitatis
Sources of international law
CUSTOMARY INTERNATIONAL LAW
• (i) State Practice
What states do and say / do not do and do not say
We find / establish state practice via books, journals, statements made by state representatives, statements
made in legislative bodies of states, Press conferences, international conferences, municipal laws,
scholarly writings, etc.
Practise by a significant number of states, over a significant duration of time, uniform, consistent
Sources of international law
CUSTOMARY INTERNATIONAL LAW
(i) Opinio Juris sive necesitatis
Psychological element
States must have the conviction or belief that the practice concerned is actually
mandated by international law, and that they are under a legal duty to abide to the said
practice.
(Eg. Not just being a good neighbor and out of courtesy follow neighbor’s action,
etc.)
Sources of international law
CUSTOMARY INTERNATIONAL LAW
Creation of Customary International Law – in situation where there is
no law governing certain matters OR in situation where existing laws
may be changed
Elements
(i) Effective Occupation – Corpus & Animus Occupandi
(ii) Significant period of time
(ii) Without effective protest – Immediate, public, serious
OPERATIONS OF INTERNATIONAL
LAW IN TERRITORIAL DISPUTES
PRESCRIPTION
CASE STUDIES –
wanshana@yahoo.com