Upload
anon602870371
View
214
Download
0
Embed Size (px)
Citation preview
7/31/2019 03 Relationship Between IL ML
1/64
7/31/2019 03 Relationship Between IL ML
2/64
International law governs relations between states
Municipal law governs the relations of individualswithin a state
So: are the two systems encompassed within a single unified system, or
constitute independent, inherently dissimilar systems
2
7/31/2019 03 Relationship Between IL ML
3/64
Three main issues in this topic:
1. Important to know precisely how the rules of onesystem will affect the decision-making process inthe courts of another
2. How/whether national law affect decisions beforeinternational courts
3. How/whether international law affects decisionsbefore the national courts
3
7/31/2019 03 Relationship Between IL ML
4/64
Three theories evolved: Monism Dualism
Different subject matter
Based on these theories, two doctrines emerged: Doctrine of incorporation
Doctrine of transformation
These formed the basis of the relationship between IL& ML
4
7/31/2019 03 Relationship Between IL ML
5/64
5
7/31/2019 03 Relationship Between IL ML
6/64
6
7/31/2019 03 Relationship Between IL ML
7/64
The law is seen as a single entity of which the nationaland international versions had manifested Thus, the law is one entity with two components: IL &
ML
Believes that IL & ML: operates in the same sphere of influence , and
is concerned with the same subject matter
7
7/31/2019 03 Relationship Between IL ML
8/64
As IL & ML operates concurrently over the samesubject matter, there may be conflict between the twosystems ie IL may require one result while the provision of ML
gives another
In such situation: International Law prevails eg: IL of human rights stipulates no person may be
imprisoned without trial
However, the opinion as to the reason internationallaw is superior, differs
8
7/31/2019 03 Relationship Between IL ML
9/64
International law derives from the practice of states;
National law derives from the state as established byinternational law
Hans Kelsen sees the superiority of IL as a direct consequence of his
basicnorm ofalllaw ie states should behave as they customarily have behaved
International law is, therefore, a higherlegal order
9
7/31/2019 03 Relationship Between IL ML
10/64
Herach Lauterpacht (former ICJ Judge)
State itself is seen as a collection of individuals, ratherthan a legal entity in its own right
National law is often used topersecute Thus, national law cannot be trusted to protect
individuals
International law, therefore, prevails as it is theguarantor of individual liberty
10
7/31/2019 03 Relationship Between IL ML
11/64
There is a hierarchy of legal orders
Natural law is at the summit, followed by internationallaw, then national law
11
Natural Law
International Law
National Law
7/31/2019 03 Relationship Between IL ML
12/64
12
7/31/2019 03 Relationship Between IL ML
13/64
Denies that IL & ML operate in the same sphere But does agree that both deals with the same subject
matter
Tripel IL regulates the relations between states whereas ML regulates the rights and obligations of individuals
within states
If international law is breached, this is not a matter for
national courts If an individual, in the national court, is denied rights
guaranteed under international law the court appliesnationallaw
13
7/31/2019 03 Relationship Between IL ML
14/64
IL does not invalidate domestic law and vice versa
Rights and obligations under one system cannotautomatically be transferred to the other
Each system applies its own laws
Rationale for Dualism:
To prevent the Executive from being able to create law
for its citizens without observing the domesticconstitutional requirements necessary for law creationLord Steyn in Re Mc Kerr[2004] UKHL 12
14
7/31/2019 03 Relationship Between IL ML
15/64
15
7/31/2019 03 Relationship Between IL ML
16/64
Fitzmaurice & Anzilotti: Denies that IL and ML operates in the same sphere
Denies that the subject matter is the same
Should be something in between
IL and ML do not contradict each other as a system oflaw The obligations, however, may
16
7/31/2019 03 Relationship Between IL ML
17/64
Thus, if the obligations contradict, then which law isto prevail will depend on the rules of privateinternational law This would normally mean that national courts give
effect to national law obligations unless an internationalrule says otherwise
Thus, in practice, it reflects dualism
The core difference is that the two theories (dualismand different subject-matter) have a difference of
opinion regarding the systems of law
17
7/31/2019 03 Relationship Between IL ML
18/64
18
7/31/2019 03 Relationship Between IL ML
19/64
The use of international law in national courts areexplained in terms of the doctrines
There are two: Doctrine of incorporation, and Doctrine of transformation
Which doctrine is used will depend on the States ownnational law ie its constitution
The use of the doctrine does not indicate the State
being either a monist State or a dualist state It only shows the method that the States use when
implementing international law in national courts
19
7/31/2019 03 Relationship Between IL ML
20/64
20
7/31/2019 03 Relationship Between IL ML
21/64
A rule of IL becomes part of ML without the need forexpress adoption by the local courts or legislature
An automatic adoption
Once it is established that the international law exists,and is relevant to the case, it will be applied by thenational courts unless it is clearly precluded by municipal law
21
7/31/2019 03 Relationship Between IL ML
22/64
22
7/31/2019 03 Relationship Between IL ML
23/64
IL only becomes part of ML when it has been expresslyadopted by the State
IL is not automatically apart of ML In short:
National court does not apply a particular rule of IL untilthat particular rule has been deliberately transformed
into ML in the appropriate manner Eg by legislation
23
7/31/2019 03 Relationship Between IL ML
24/64
International law in Municipal courts
24
7/31/2019 03 Relationship Between IL ML
25/64
25
7/31/2019 03 Relationship Between IL ML
26/64
Rights and obligations arising from treaties Must be transformed into national law
By an Act of Parliament
Treaties Concluded by the Crown under the Royal Prerogative
Cannot change the substance or nature of individualrights guaranteed under common law or statute
Exceptions: treaties of cession or those pertaining toconduct at war
Position in UK reflects the dualist approach
26
7/31/2019 03 Relationship Between IL ML
27/64
HOL confirmed that a treaty to which Her Majestys
Government is a party does not alter the laws of the UK
Except to the extent that a treaty becomes [transformed]into the laws of the United Kingdom by statute, the courts
of the United Kingdom have no power to enforce treaty
rights and obligations at the behest of a sovereigngovernment or at the behest of a private individual
27
7/31/2019 03 Relationship Between IL ML
28/64
Apply the rules appropriate to the interpretation of an
international convention Unconstrained by technical rules of English law or
precedent In essence, court was interpreting the treaty itself
If treaty had more than one language, it may bereferred to
Even if the other language had not been formallyenacted by the Act Majority view: only if there was ambiguity
28
7/31/2019 03 Relationship Between IL ML
29/64
Once transformed by statute into UK law, it has fulllegal effect To the extent of its enactment
Eg: Vienna Convention on Diplomatic Relations
Diplomatic Privileges Act 1964
Interpretation of the Act should automaticallyencompass interpretation of the treaty
29
7/31/2019 03 Relationship Between IL ML
30/64
30
7/31/2019 03 Relationship Between IL ML
31/64
No reference should be made to such treaties toadjudicate on the substantive claims eg to identify the legal rights
It can only be used as evidence to the factualbackgroundof the parties dispute
31
7/31/2019 03 Relationship Between IL ML
32/64
Arab Monetary Fund v Hashim
[1991] 1 All ER 871
The Arab Monetary Fund is an internationalorganisation established by an international treaty, towhich UK is not a party. The Monetary Fund had been
incorporated into the domestic law of the United ArabEmirates (UAE), a sovereign state that UK recognises.
Q: Is the Arab Monetary Fund a recognised
international personality in the UK?
32
7/31/2019 03 Relationship Between IL ML
33/64
Yes
But not because of the unenacted treaty
Because it was incorporated in the domestic law of
UAE, a sovereign state that the UK enjoys fulldiplomatic relations The Monetary Fund as a legal person of the UAE, could
be recognised by the UK
The normal conflict of law rules: gave UK recognitionto legal entities created by the laws of other states
33
7/31/2019 03 Relationship Between IL ML
34/64
Constitutionally, an unenacted treaty has no legaleffect in UK law Cannot create rights nor obligations for parties in
national law
Its substantive provisions cannot be made subject oflitigation in national courts
Q: What if the unenacted treaty is a part of Statute?
34
7/31/2019 03 Relationship Between IL ML
35/64
An Act may be intended to give effect to terms of a treaty
Eg: Custom and Excise Act 1952
Convention on Valuation of Goods for Custom Services
1950
Did not contain the treaty nor make reference to it
Q: Can the treaty be referred to when interpreting the
Act?
35
7/31/2019 03 Relationship Between IL ML
36/64
Salomon v Commissioners of Customs and Excise
[1967] 2 QB 116
Diplock LJ developed three principles:
1. If the terms of the Act are clear and unambiguous
The Act must be given effect to by the court even ifthey do not carry out the obligations which are
found in the treaty
Parliament sovereignty It may be presumed that Parliament does not intend to
legislate contrary to international obligations But it can do so
36
7/31/2019 03 Relationship Between IL ML
37/64
2. If it is not clear and reasonably capable of more than
one meaning Unenacted treaty is relevant
If meaning ambiguous i.e. meaning that implements treatyvs meaning that does not implement treaty
Common law should be applied, whenever possible, in a
manner consistent with those obligations
3. Rule 2 applies in cases of ambiguityirrespective ofwhether the Act makes reference to the Treaty
37
7/31/2019 03 Relationship Between IL ML
38/64
38
7/31/2019 03 Relationship Between IL ML
39/64
CIL may form part of the law of the UK under thedoctrine of incorporation
Unless there is a contrary statutory provision, rules ofCIL may be operative in the national legal system
However Must bear in mind the basic constitutional precept of
that system
39
7/31/2019 03 Relationship Between IL ML
40/64
Mortensen v Peters Any rule of CIL would have to yield to the clear words of
any Act of Parliament
40
7/31/2019 03 Relationship Between IL ML
41/64
41
7/31/2019 03 Relationship Between IL ML
42/64
There is no provision about the doctrine ofincorporation in the Federal Constitution
Federal Constitution Article 74(a) Parliament may make laws in respect of
implementing treaty/convention : Federal/Concurrent Article 76(1)(a) Parliamentary make laws in respect of
implementing treaty /convention: State Article 76(2) exceptions Art 169 international agreement before Merdeka
Civil Law Act S.3: cut off dates
42
7/31/2019 03 Relationship Between IL ML
43/64
43
7/31/2019 03 Relationship Between IL ML
44/64
44
7/31/2019 03 Relationship Between IL ML
45/64
45
7/31/2019 03 Relationship Between IL ML
46/64
Govt of the State of Kelantan v The Govt of theFederation of Malaya and Tunku Abdul Rahman Putra
Al-Haj [1963] MLJ 355
On 9 July 1963, the Governments of the Federation of
Malaya, UK, Sarawak, North Borneo (Sabah) andSingapore signed the Malaysia Agreement (aninternational agreement), that brought Singapore,Sabah and Sarawak into the federation. Federal
Parliament then passed the Malaysia Act to amend theFederal Constitution to include the three new statesand to provide for matters in connection with theadmission.
46
7/31/2019 03 Relationship Between IL ML
47/64
On Sept 10, the Government of Kelantan began an action
against the federal government for declarations that theMalaysia Agreement and the Malaysia Act were null and
void; or were not binding on the State.
Some of the arguments: The proposed changes needed the consent of each of the
constituent states including Kelantan, and this had notbeen obtained
The Sultan of Kelantan should have been made a party tothe Malaysia Agreement
The federal parliament had no power to legislate forKelantan in matters that the state could legislate for on itsown.
47
7/31/2019 03 Relationship Between IL ML
48/64
Main issue:
whether Parliament or the executive government had
trespassed in any way the limits placed on their powersby the constitution
48
7/31/2019 03 Relationship Between IL ML
49/64
1. Was the Malaysian Agreement signed by the properpeople?
Art 39 executive authority of the Federation is vested in power
invested in the YDA, and exercisable by him/Cabinet/any
Minster authorised by Cabinet Art 80
Executive authority of the Federation extends to allmatters with respect to what Parliament may make laws,
which includes treaties and agreements
Here, Malaysia Agreement signed for the Federation ofMalaya by the PM, DPM and four other members ofCabinet
Nothing in Constitution requires consultation with StateGovernment or Ruler of any State
49
7/31/2019 03 Relationship Between IL ML
50/64
2. Federal parliament had no power to legislate forKelantan in matters that the state could legislate for onits own
50
7/31/2019 03 Relationship Between IL ML
51/64
By Article 76(1)(a):
Parliament may make laws with respect to any matterenumerated in the State List, but only as follows, that is to say
for the purpose of implementing anytreaty, agreement orconvention between the Federation and any other country, or
anydecision of an international organizationof which the
Federation is a member
but, is subject to Article 76(2)
the State Government needs to be consulted before any Bill is
introduced into Parliament when it involves: Islamic law, or the custom of the Malays, or native law or custom in the States of Sabah and Sarawak
51
7/31/2019 03 Relationship Between IL ML
52/64
In short:
1. It is the Federal Government that has the right toenter into international agreements/treaties: Article
76(1)(a) Even if it falls under the state list
But consultation of State government is required in certainmatters: Article 76(2)
2. Treaties/agreements prior to Merdeka or MalaysiaDay? Article 169
52
7/31/2019 03 Relationship Between IL ML
53/64
International agreements, etc., made before Merdeka Day
169. For the purposes of Clause (1) of Article 76
(a) any treaty, agreement or convention entered into before Merdeka Daybetween Her Majesty or her predecessors or the Government of the UnitedKingdom on behalf of the Federation or any part thereof and anothercountry shall be deemed to be a treaty, agreement or convention betweenthe Federation and that other country;
(b) any decision taken by an international organization and acceptedbeforeMerdeka Day by the Government of the United Kingdom on behalf of theFederation or any part thereof shall be deemed to be a decision of aninternational organization of which the Federation is a member;
(c) (c) in relation to the States of Sabah and Sarawak paragraph (a) and (b)shall apply with the substitution of references to Malaysia Day for thereferences to Merdeka Day and of references to the territories comprised in140 those States or any of them for the references to the Federation or anypart thereof.
53
7/31/2019 03 Relationship Between IL ML
54/64
54
7/31/2019 03 Relationship Between IL ML
55/64
Does Malaysia follow UK position of incorporation forcustomary international law?
55
7/31/2019 03 Relationship Between IL ML
56/64
PP v Narongne Sookpavit
Narogne and the other 22 accused are Thai fishermen.They were about 3 miles from shore of Tanjung Ayam,Johore. They were apprehended by the MalaysianNaval Patrol: found in possession of fishing appliances
in contravention of Regulation 3(b) of the Fisheries(Maritime) Regulations 1967, punishable under s.11(1)of the Fisheries Act 1963.
Defence: exercising the right of innocent passage andnegotiating a route that had been used since timeimmemorial (the only route to take to get toSingapore)
56
7/31/2019 03 Relationship Between IL ML
57/64
1. With regards to the possession of fishing appliances:
Regulation 3(b) No person shall have in his possession on board a vessel
any fishing appliances or any part thereof S.11(1) Act
any person who fails to comply with, the provisions of thisAct or any regulations thereunder shall be guilty of an
offence
Evidence clearly established that they were in possession ofthe fishing appliances without a licence within Malaysianterritorial waters 57
7/31/2019 03 Relationship Between IL ML
58/64
2. Rights of innocent passage?
Article 14 Convention of the Territorial Sea1. ships of all States shall enjoy the right of innocent
passage through the territorial sea
2. Passage means navigation through the territorial sea
for the purpose either of traversing that sea withoutentering internal waters, or of making for the highseas from internal waters
3. Includes stopping and anchoring; but only in so far as
the same are incidental to ordinary navigation or arerendered necessary byforce majeure or by distress
58
7/31/2019 03 Relationship Between IL ML
59/64
4. Passage is innocent maintains peace, good order orsecurity of the coastal state
5. Passage of foreign fishing vessels shall not beconsidered innocent if they do not observe such lawsand regulations as the coastal state may make andpublish in order to prevent these vessels from fishing
in the territorial sea
This is said to correspond with customary law It may be customary law of England, or
Customary international law
59
7/31/2019 03 Relationship Between IL ML
60/64
Note, argument based on two aspects:
1. Treaty Convention on the Territorial Sea and the Contiguous
Zone 1958
2. Customary law It may be customary law of England, or
Customary international law
60
7/31/2019 03 Relationship Between IL ML
61/64
Before a convention can come into force in Malaysia,Parliament must enact a law to that effect
No Malaysian statute has been cited to show thatArticle 14 had become part of Malaysian law
The Geneva Convention on the Territorial Sea 1958 bythe Emergency (Essential Powers) Ordinance No.7 of1969 Stops at Article 13
Inference that Article 14 was not intended to beimported into the country
61
7/31/2019 03 Relationship Between IL ML
62/64
Inadequate evidence to show that the innocent
passage through Malaysian territorial water is a right,
and if so, what are its precise limits
Even if there was such a right of innocent passage as
per customary international law as it is applied in
England/ customary English law
It could not be innocent as it contravened Malaysian
domestic legislation
62
7/31/2019 03 Relationship Between IL ML
63/64
THUS
Clearly seen that customary international law can onlybe applied if It is codified into legislation, or
Via common law
For common law, requires s.3 Civil Law Act Cut-off date: April 1956
Persuasive only
63
7/31/2019 03 Relationship Between IL ML
64/64