NATURE OF INTERNATIONAL LAW

1.1 Definition:
What is International Law?
[Textbook, pp. 1-2 ]
The term international law first introduced by Jeremy
Bentham.
Alternative names:
- Law of nations
- Law among nations
- Inter-state law

Traditional definition: International law is the law that

governs States in their relations with one another.
This traditional definition does not reflect reality in
modern times. New actors have emerged on the
international plane:
- public international organizations (IGOs),
- non-governmental organizations (NGOs),
- transnational corporations,
- private individuals.
Oppenheim: international law is the body of rules
which are legally binding on States in their intercourse
with each other. These rules are primarily those which
govern the relations of States, but States are not the
only subjects of international law. International
organizations and, to some extent, also individuals may
be subjects of rights conferred and duties imposed by
international law.
1.2 Public and Private International Law [Textbook
pp. 2-3]
International law is sometimes referred to as public
international law to distinguish it from the so-called
private international law.
The term private international law, coined by some
jurists to denote rules of conflict of laws.
Disputes may arise from transactions which involve a
foreign element.
A foreign element may be involved, for example, if
one of the parties is a foreign national, if a contract is
made in a foreign country, or if a tort is committed in
a foreign country.
In such a situation, it is not fair for a local court to
decide according to (lex fori) the local law only and it
has to take into consideration the relevant foreign
law.
To put it another way, the local court has to settle a
choice of law problem (a choice between local law
(lex fori ) and a foreign law).
Choice of law is to be done by referring to rules of
conflict of laws and these rules have come to be
known as private international law.
The term seems to be a misnomer because it is
actually not a branch of international law.
In fact, private international law is merely part of the
domestic law of a State.

1.3 Distinction between international law and

national legal systems
[Textbook: pp. 3-4]
International law is fundamentally different from
national legal systems.
In a national legal system, there is a Government that
can exercise supreme authority (or sovereignty).
A Government of a State has three sovereign
functions: law making (legislative), law determination
(judicial), and law enforcement (executive).
International law is concerned with States that are
sovereign and equal.
Sovereignty: supreme authority above which there is
no other higher authority.
There is no higher authority above sovereign States.
International law is, therefore, a sort of horizontal
legal system.
The UN General Assembly is not a world legislature.
The International Court of Justice (ICJ) can operate
only on the basis of the consent of States to its
jurisdiction.
The law enforcement capability of the UN Security
Council is limited.
1.4 INTERNATIONAL LAW AS LAW [Textbook: pp. 48]
Is international law really law?
1.4.1 Theoretical approach
(1) Command theory
John Austin questioned the true legal character of
international law.
Austins attitude towards international law was based on
his theory of law in general.
According to Austinian theory, law was defined as a
command enforced by a sovereign political authority.
[Also known as command theory]
As there was no sovereign political authority above
the sovereign States international law was not true law
but positive international morality.
The command theory - not complete: it does not cover
customary law. Everywhere there is customary law
side by side with statute law.
(2) Consensual or positivist theory
The consensual or positivist theory regards actual
practice of States as the foundation of international
law.
The basic idea of this theory is that the binding
character of international law flows from the consent
of States.
Consent may be given expressly by means of treaties
and impliedly by means of custom.
This theory is highly persuasive and represents the
mainstream legal thinking of the present day.

 One difficulty, however, is that consent does not

explain the existence of all legal obligations.
For example, jus cogens.

(c) Lack of political will: States - reluctant to comply

with international law when their vital interests are at
stake.

(3) Natural law theory

According to this theory, law is derived from the
application of the law of nature as a matter of human
reasoning.
This theory is in direct contrast to the consensual or
positivist approach.
While positive law is based on the actual practice of
States, natural law is based on objectively correct
moral principles.

1.4.4 Why do States observe international law?

Almost all nations observe almost all principles of
international law almost all of the time. [Henkin]
What are the motivations for the States to observe
international law?
States have internal motivations as well as external
pressures to comply with international law.
Internal motivations:

As the method of law-creation in international law is

primarily dependent on State practice or consent,
natural law theory cannot play an important role.
Traces of natural law: human rights, international
crimes and jus cogens.
(4) Ubi societas, ibi jus
Law can only exist in a society, and there can be no
society without a system of law to regulate the
relations of its members with one another. [Brierly]
If we apply this maxim to the situation of
international law, international law is necessary for
the international society to function, and because it is
necessary it is binding.
Pragmatic and straight forward.

1.4.2 Practical approach [See Textbook p. 6]

According to State practice, international law is
constantly recognized as law.
States not only recognize the rules of international
law as legally binding but affirm the fact that there is
a law among them.
States continuously conclude and implement int.
treaties and establish and operate international
organizations.
Serious efforts are being made to codify international
law (the ILC).
Modern national constitutions usually contain
references to international law (e.g. Art. IV, Section 2
of the US Constitution; Art. 25 of the German
Constitution)
Rules of international law are accepted as legally
binding by States because they are useful to reduce
complexity and uncertainty in international relations.
1.4.3 Weaknesses of international law [See Textbook
pp. 7-8]
Not a perfect system. There are weaknesses.
(a) Lack of effective institutions
(b) Lack of effective enforcement machinery:
[international law has its own enforcement system,
which is unique and essentially different from that of
national legal systems].

Sense of obligation
States feel obligated to honour rules of IL because
these rules are based on their consent.
[Lotus case] The rules of law binding upon States
emanate from their own free will expressed in
conventions or by usages.
Common self-interest
The international community: more interdependent.
Needs international law to be stable and to maintain
law and order.
It is in the interest of every State to comply with.
Political and economic cost
A State can lose much through a violation of
international law.
Besides the legal sanctions, there are political and
economic costs to be paid, e.g., loss of credibility, loss
of trust, and reduction in foreign trade.
External pressure
The primary external pressure is the enforcement of
the law by the victim State (and sometimes by the
international community).
1. 5 ENFORCEMENT OF INTERNATIONAL LAW
Diplomatic protests:
The traditional method of enforcing international law.
Such protests commonly include demands that the
wrong done be appropriately righted.
1.5.1 Peaceful Means of Enforcement [See Textbook
pp. 9-10]
Article 2(3) of the Charter of the UN obliges Member
States to settle international disputes by peaceful
means.
Art. 33; The peaceful means are: negotiation, enquiry,
mediation, conciliation, arbitration, judicial
settlement, etc..
Judicial enforcement
(1) Recourse to the ICJ: Jurisdiction is based on consent;
if a matter is referred to it, its judgment is binding on
the parties and must be carried out.
(2) National courts. The decision will be binding on the
parties.
Inter-State Claim

 Inter-State claim - the principal remedy (claim by the

alleged victim against the State allegedly responsible
for the violation).
Usually the victim seeks reparation in the forms of
restitution, compensation, or satisfaction .

5. 2 Coercive Means of Enforcement (Sanctions)

[See pp. 10-14]
There can be two types of coercive means or
sanctions:
(1) non-military means; and
(2) military means or sanctions involving
the use of force.
Non-Military Means [See Textbook pp. 11-13]
Self-help exists as a sanction in all legal systems.
In modern societies, self-help has become the
exception rather than the rule.
But in international law it has remained the rule.
In the past, States might even go to war to enforce
their legal rights.
However, this is no longer lawful by virtue of (2)
Article 2(4) of the UN Charter which prohibits the
threat or use of force.
The only lawful use of force in self-help is the right of
self-defence under Article 51 of the Charter.
Countermeasures: The remaining forms of self-help
are countermeasures, such as retorsion and reprisals.

(2) Military means (use of force)

[See Textbook pp. 13-14 and also Chapt. 15, pp. 442-448]
Article 2(4) of the UN Charter prohibits the use of
force .
There are two views on the interpretation of Art. 2(4):
permissive and restrictive.
The better view is that the prohibition is absolute.
Therefore, there can be no exceptions to the
prohibition except those expressly mentioned in the
Charter itself.
There are only two exceptions in the Charter for
lawful use of force:
(1) Right of self-defence under Article 51 of
the Charter; and
(2) Enforcement measures by the SC under
Chapter VII of the Charter.
[See Textbook Chapter 17, pp. 494-497 for the details;
also need to study major incidents.]
1.4 Development of International Law (Outline
only)
[See Textbook pp. 14-21]
Origin of international law
Islamic international law: The Shariah; As-Siyar.
Muhammad As-Shaybani - Kitab As-Siyar Al-Kabir;
Hugo Grotius - De jure belli ac pacis (On the Law of War
and Peace) (1625)
The formation of the present-day international law:
Eurocentric?
Attitude of the developing States towards
international law

Retorsion is a lawful but unfriendly act against an

unfriendly act of another States for example, rupture
of diplomatic ties.
Reprisals are acts which would normally be illegal but
which are rendered legal by a prior illegal act
committed by the other State.
E.g., if State A confiscates property belonging to State
Bs citizens without any justification, State B can
retaliate by doing the same to the property of State As
citizens.
Restrictions on Countermeasures (reprisals)
[See Textbook p. 12 for details of the FIVE restrictions]
(1) Directed against wrong-doer State;
(2) Aims at cessation of wrongful act and
reparation;
(3) Must not involve the use of military force;
(4) Must not involve any departure from
certain basic obligations, e.g. jus cogens;
(5) Must be commensurate with the injury
suffered (principle of proportionality).
Air Services Agreement case
[See Textbook p. 13 for the details of the case]

2. THE SOURCES OF INTERNATIONAL LAW

Formal sources and material sources [Textbook pp. 2223]
The formal source is the source from which the legal
rules derive its legal validity or the mechanism
through which the law comes into being. Its function
is to create law (law-creating).
The material source indicates where the legal rules are
located or the place normally a document of some
kind in which the substance of the rule can be
found.
2. 1 TRADITIONAL SOURCES OF INTERNATIONAL
LAW
Article 38 of the Statute of the ICJ:
1.(a) International conventions, whether general or
particular, establishing rules recognized by the
contesting States;
(b) International custom, as evidence of a general
practice accepted as law;
(c) The general principles of law recognized by civilized
nations;
(d) Subject to the provisions of Art. 59, judicial
decisions and the teachings of the most highly qualified
publicists
2. To decide a case ex aequo et bono if the parties agree
thereto.
An authoritative statement of the sources of
international law.

2. 2 TREATIES [Textbook pp. 24-29]

Art. 38(1)(a): the word convention means a treaty; it
is an agreement made between two or more States or
other subjects of international law.
Treaty is a generic term; the Law of Treaties.
Terminology: treaty, convention, pact, protocol,
charter, covenant, accord, statute, exchange of notes,
and so on.
The importance of treaties in international law
Growing importance of treaties.
More than 33,000 treaties - registered with the UN
(See UNTS).
International law has expanded enormously by virtue
of a great number of treaties made by States.
Customary international law derives from the practice
of States. It is by nature slow in its law-making
process. There is lack of precision. It is quite difficult
to ascertain their exact contents.
On the other hand, treaty-making process is relatively
faster.
States may enter into a treaty at any time when they
feel that a new rule is required.
Treaties are the only way by which international law
can be made by a deliberate act of States.

Since treaty law is a kind of written law (jus scriptum),

it possesses the merit of considerable precision.
Law-making treaties and treaty-contracts
Some writers argued: treaties should be regarded as
sources of international law only if they are the socalled law-making treaties.
A law-making treaty: one concluded by a substantial
number of States and stipulates new general rules for
future international conduct or abolishes, modifies or
codifies existing rules.
The so-called treaty-contracts are treaties between
two or only a few States, dealing with a special matter
concerning these States exclusively.
According to this theory, the so-called treatycontracts, are not a source of international law but are
merely legal transactions.
It is difficult to accept this idea.
The so-called treaty-contracts may, as between the
parties thereto, constitute particular law.
Moreover, even bilateral treaties may provide evidence
of customary rules.
The better view, therefore, is to regard all treaties as a
source of law.
2.2.1 Binding force of treaties
States have the capacity to enter into treaties.
A treaty is based on consent. Such consent may be
expressed by (signature, ratification, accession, etc.).
Pacta sunt servanda. Article 26 of the VCLT:
Every treaty in force is binding upon the parties to it
and must be performed by them in good faith.
A treaty not binding on non-parties.
Pacta tertiis nec nocent nec prosunt: A treaty may not
impose obligations or confer rights on a third party
Certain German Interests in Polish Upper Silesia case,
1926 (PCIJ): a treaty only creates law as between the
States which are parties to it.
Article 34 of the VCLT: A treaty does not create either
obligations or rights for a third State without its
consent.
2.2.2 Interaction between treaty law and customary
law [pp. 26-29]
Treaty and custom interact and interrelate in an
interesting way.
(a) Treaty as a material source of
customary law:
North Sea Continental Shelf cases [See p. 27 for the
details]: the role of multilateral treaties as State practice
and hence as a material source of CIL binding upon
parties and non-parties alike.
In the Courts view, a treaty rule may relate to custom in
one of three ways:
(1) It may be declaratory of custom (that is, it may
codify (embody) a pre-existing rule of CIL);
(2) It may crystallize custom (that is, by means of
a very widespread and representative
participation in the treaty, including that of States

whose interests are specially affected ); and

(3) It may serve to generate a rule of CIL in the
future by subsequent practice of States.
When a treaty codifies existing CIL, the obligations
specified in the treaty may be binding on all States,
because:
(1) those States that are parties are bound by the
obligations in the normal way since they are parties; and
(2) States that are not parties are also bound by the
obligations because they are rooted in CIL.
Many multilateral treaties are a mixture of
codification of current customary law and progressive
development of that law.
In that case, parties to the treaty are bound in the
normal way by all of the obligations in the treaty, but
non-parties are bound by those obligations, which
have in fact attained the status of customary law.
(b) Parallel existence of treaty rule and
customary rule:
In the Nicaragua case, Nicaragua brought a claim
against the US alleging that the latter had used armed
force and intervened in its affairs contrary to
international law.
The US argued that the court had no jurisdiction
because they had made a multilateral treaty reservation.
Nicaragua claimed, however, that the Court had
jurisdiction because its claim was also based on rules
of customary international law.
The Court held that the customary rules on the use of
force and intervention continued to bind the parties
in parallel with the obligations under the UN Charter.

2. 3 INTERNATIONAL CUSTOM

[pp. 29-40]

Article 38 (1)(b) refers to international custom, as

evidence of a general practice accepted as law.
This provision makes it clear that there are two
essential elements of international custom:
(1) State practice; and
(2) acceptance as law or the so-called opinio
juris.
This is reaffirmed by the ICJ in the famous North Sea
Continental Shelf cases [See p. 27 for the details]
In this case, Denmark and the Netherlands argued
that the equidistance principle in Article 6(2) of the
1958 Geneva Convention on the Continental Shelf
applied because it stated or crystallized customary
international law. (FRG was not a party to the
Convention).
The Court rejected their argument and ruled:
[I]n order to achieve this result, two conditions must
be fulfilled. Not only must the acts concerned amount
to a settled practice, but they must also be such as
to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring

it. The need for such a belief, i.e., the existence of a

subjective element, is implicit in the very notion of the
opinio juris sive necessitatis. The States concerned
must therefore feel that they are conforming to what
amounts to a legal obligation. [See p. 30]
Again, in the Continental Shelf (Libya v Malta) case,
(1985) ICJ Rep. 29, the World Court stated that the
substance of customary international law must be
looked for primarily in the actual practice and opinio
juris of States.
This is the established doctrine, accepted by States,
international tribunals and most writers alike.
Hence, two elements of customary international law
are: (1) State practice and (2) opinio juris.
2. 3. 1 State Practice [p. 30]
The formation of a customary rule requires a general
and consistent State practice.
Then what acts constitute State practice?
Generally speaking, the actual words and actions and
omissions of States constitute State practice.
Even silence on the part of States is relevant because
passiveness and inaction with respect to claims of
other States can produce a binding effect creating
legal obligations for the silent State under the doctrine
of acquiescence.
Where to look for evidence of State practice
[What are the material sources of custom?]
(1) Treaties;
(2) Judicial decisions;
(3) National legislation;
(4)Diplomatic correspondence;
(5) Opinions of national legal advisors;
(6) Resolutions relating to legal questions of the
General Assembly
(7) Practice of international organizations.
Evidence of customary law may also be found in the
writings of international lawyers, and in judgments of
national and international tribunals, which are
mentioned as subsidiary means for the determination
of rules of law in Article 38(1)(d) of the Statute of the
International Court of Justice.
2. 3. 1. 1 Generality of practice [p. 31]
It refers to the number of States which have to
contribute towards the customary rule.
Universality is not required.
Common and widespread practice among a significant
number of States is required in order for a general
custom (a rule of general customary international
law) to develop (as opposed to a local custom binding
only a few States).
The available practice on the matter will have to be so
widespread that any inconsistent practice will be
marginal and without direct legal effect.

 If State practice is substantially divided and conforms

to two or more differing solutions on one issue, it is
not sufficiently widespread and cannot amount to a
general customary rule; of course, a number of local,
regional, or special customs may arise.
(a) The practice of specially affected States [p. 32]
State practice must include the practice of those
States whose interests are specially affected by the
subject matter of the rule (North Sea CS case)
For example, the practice of major maritime powers
will have more significance in the formation of rules
on the law of the sea than, for example, that of a
landlocked State.
(b) The effect of acquiescence in the formation of
international custom
During the development of a customary rule, a State
may react in three possible ways:
(i) by doing nothing (that is, complete silence or
acquiescence);
(ii) by objecting to the practice from the outset (that is,
the persistent objector); or
(iii) by objecting at a later date when the rule has
already established as a custom (that is, the subsequent
objector).
Where there has been a widespread and consistent
State practice, then silence by others may be
interpreted as acquiescence in the development of a
rule of CIL.
All States (whether or not they have participated in
the practice) are presumed to have assented to the
rule unless they can demonstrate that they have the
status of a persistent objector.
Once a rule of general CIL has been established, the
rule is binding upon all States (with the exception of a
persistent objector State).
(c) The practice of dissenting States [p. 33]
The Persistent objector
A State may contract out of a custom in the process of
formation.
When a State object to a particular practice carried on
by other States or adopts a contrary practice, it may
not be bound by any evolving customary law. This is
known as the concept of persistent objector.
A persistently objecting State is not bound by the
eventual customary rule if the State fulfils two
conditions.
First, the objections must have been maintained from
the early stages of the rule onwards, up to its
formation, and beyond.
Secondly, the objections must be maintained
consistently. Evidence of objection must be clear and
there is probably a presumption of acceptance, which
is to be rebutted.
The persistent objector rule appears to have been
accepted by overwhelming majority of writers and in
the practice of States.

The authority that supports this rule is the AngloNorwegian Fisheries case (1951) ICJ Rep. 3.
The ICJ made a finding that a coastline delimitation
rule put forward by the UK was inapplicable as against
Norway, as she has always opposed any attempt to
apply it to the Norwegian coast.
The subsequent objector
What is the effect of dissent by a State after a custom
has been established?
The general rule is that subsequent objection to an
established rule of customary law cannot prevent that
rule binding the State.
However, subsequent objections or derivations may
become so widespread that the previous rule is
destroyed and replaced by a new rule, as with the
extension of the territorial sea from 3 to 12 miles.
The issue of new States and customary IL [pp. 34-35]
Newly independent states: clean slate theory
One of the areas where there have been differences of
opinions between developed and developing (Third
World) States.
Developing countries turned to codification and
progressive development of IL through treaties.
Local or regional custom [p. 35]
There can be a local (or regional) customs amongst a
group of States or just two States. The World Court
recognized this in the Asylum case
(Columbia v
Peru) (1950) ICJ Rep. 266.
The Party which relies on a custom of this kind (i.e.
Columbia) must prove that the rule invoked by it is in
accordance with a constant and uniform usage
practised by the States in question, and that this usage
is the expression of a right appertaining to the State
granting asylum and a duty incumbent on the
territorial State.
In this case, the Court found against the existence of
local custom because of lack of evidence. However,
the possibility of local custom was confirmed in the
Rights of Passage over Indian Territory case (Portugal v
India) (1960) ICJ Rep. 6.
The Court sees no reason why long continued
practice between two States accepted by them as
regulating their relations should not form the basis of
mutual rights and obligations between the two
States.
2. 3. 1. 4 Consistency of practice [pp. 36-37]
State practice must be reasonably consistent. This
criterion is satisfied if there is substantial, rather than
total or complete, consistency. The ICJ held in the
Nicaragua case that:
The Court does not consider that the corresponding
practice must be in absolutely rigorous conformity
with the ruleThe conduct of States should, in
general, be consistent with such rules
2. 3. 1. 5 Duration of practice [ pp. 37-38]

 The duration of practice is a part of generality and

consistency.
A long practice is not necessary and rules relating to
airspace and the CS have developed within a short
period of time.

In the North Sea Continental Shelf cases, the ICJ states: the length
of time needed will vary from subject to subject and that the
passage of only a brief period of time is not necessarily a bar to the
formation of customary law
Can there be an instant customary international law or diritto
spontaneo?
Proponents: Roberto Ago and Bin Cheng.
This idea is to deny the significance of State practice and the
relevance of time factor in the formation of CIL and to rely solely
on opinio juris.
However, it is not in accord with the consistent jurisprudence of
the ICJ that State practice is an essential requirement.
Thus, the possibility of instant custom has remained a matter of
dispute.
2. 3. 2 Opinio juris sive necessitatis [pp. 38-40]
The second element of an international custom is that the practice
must be accepted by States as law.
It is necessary to examine not only what States do but also why they
do it. There is a psychological element in the formation of
customary law.
State practice alone is not sufficient; it must be shown that it is
accompanied by a conviction that it is binding upon them as law.
(The conviction by States in the obligatory nature of the practice).
The requirement of opinio juris
There must be some criteria by which we can distinguish State
practice amounting to law from other kinds of State activity, such
as acts of comity or courtesy or friendship.
In the Lotus case, The PCIJ held: opinio juris was an essential
element in the formation of customary international law.
This was reaffirmed in the North Sea Continental Shelf cases and
has been accepted ever since.
Proof of opinio juris
(1) The opinio juris simply can be proved by an express, or most often
tacit, acceptance of the practice as law by the interested States. The
express declaration of a State that a given rule is obligatory (or
customary) indicates the clearest evidence as to the States legal
conviction. Express acceptance is, however, rather rare.
(2) From the judgment of the ICJ in the Nicaragua case, it is clear that
opinio juris can be inferred from the actual behaviour of States; it can
be gathered from acts or omissions of States.
(3) Protest plays a very important role in ascertaining the element of
acceptance as law. Absence of protests or objections against a
practice (that is, acquiescence) tends to prove that States do not
consider the practice as contrary to their interests and also, that they
do not object to the formation of a customary rule. Toleration of a
practice by other States, considering all relevant circumstances,
justifies the presumption of its acceptance as law.
(4) Casting an affirmative vote to a resolution of an IO or ratifying an
international convention is also a clear commitment in the nature of
opinio juris. The Court stated in the Nicaragua case:
As regards the US in particular, the weight of an expression of
opinio juris can similarly be attached to its support of the resolution
of the Sixth Int. Conf. of American States condemning aggression
and ratification of the Montevideo Convention
2. 4 GENERAL PRINCIPLES OF LAW [pp. 41-42]
General principles of law are the legal principles which are
accepted in all or most of the national systems of law, in so far as
they are applicable to relations of States.
The main objective: to fill in gaps in treaty law and customary law
and to meet the possibility of a non liquet.

(1) The duty to provide reparation in consequence of a wrongful act

(Chorzow Factory case), which is accepted in most legal systems.
(2) Some of the general principles are based on natural justice
common to all legal systems such as the principles of good faith,
estoppel or acquiescence, and proportionality.
(3) Some are based on legal logic or statutory interpretation, such as
the principles of lex posterior derogat legi priori, and lex specialis
derogat legi generali.
(4) Some can be found in the field of evidence, procedure and
jurisdictional questions. E.g., nemo judex in causa sua (no man shall be
judge in his own cause), and res judicata .

2. 5 JUDICIAL DECISIONS AND WRITINGS OF JURISTS

[pp. 42-43]
Article 38(1)(d) of the Statute of the Court directs the Court to apply
judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
2. 5. 1 Judicial decisions
Article 59 of the Statute says: The decision of the Court has no
binding force except between the parties and in respect of that
particular case.
It means that in international law there is no concept of stare
decisis, as known in common law system.
In theory, therefore, judicial decisions do not make law but are
declaratory of pre-existing law.
Although international courts are, in principle, not obliged to follow
previous decisions, in practice they almost always take previous
decisions into account.
The ICJ always strive to maintain judicial consistency, referring to
previous decisions.
Therefore, whatever the theory, the Court in practice is involved in
the process of law-creation. First, the decision of the Court has
created law for the parties. Secondly, a decision of the Court may
have a profound impact on customary law.
Since Article 38(1)(d) is not limited to decisions of the World Court,
there is no reason why decisions of other judicial bodies should not
be regarded as sources of international law.
Even decisions of domestic courts, if they deal with matters of
international law, may provide important evidence as to the
practice of States and a material source from which a rule of
customary international law can emerge.
2. 5. 2 Writings of publicists
The writings of the most highly qualified publicists are also to be
regarded as a subsidiary means for the determination of rules of
law.
However, they are a material or evidential source only.
Must be careful about the integrity and political background of the
writer.

2. 6 OTHER POSSIBLE SOURCES

Having examined the sources mentioned in the Statute of the Court,
our concern now is to consider whether there are any other possible
sources, which have been omitted in the list.
2. 6. 1 General Assembly Resolutions
As a rule, General Assembly resolutions are not binding on member
states.
Nevertheless, when they are concerned with substantive questions
of IL, there may be an interaction between these and CIL.
Like treaties, GA resolutions may be declaratory of existing CIL.
They may also crystallize State practice so that a new customary
rule is created.
In other words, they may be evidence of State practice and a
material source of international law.
In the Legality of the Threat and Use of Nuclear Weapons case (1996)
ICJ Rep. 66, the ICJ stated:

Examples of general principles of law

 The GA resolutions, even if they are not binding, may sometimes

have normative value. They can provide evidence important for
the emergence of an opinio juris. a series of resolutions may show
the gradual evolution of the opinio juris required for the
establishment of a customary rule.
2. 6. 2 Equity
Equity is used here in the sense of considerations of fairness, and
reasonableness.
In Diversion of Water from the Meuse Case, the Netherlands
claimed that Belgium had infringed a treaty obligation by building
canals that altered the flow of water in the River Meuse. Belgium
argued that Netherlands had lost the right to bring the claim
because of similar earlier conduct by itself.
In other words, Belgium relied on the principle of estoppel by
conduct.
Diversion of Water from the Meuse Case
Judge Hudson: What are widely known as principles of equity have
long been considered to constitute a part of international law, and as
such they often been applied by international tribunals .The Court
has not been expressly authorised by its Statue to apply equity as
distinguished from law Article 38 of the Statute expressly directs the
application of general principles of law recognised by civilised
nations, and in more than one nation principles of equity have an
established place in the legal system.
References to equity can be found very often in the judgments of the
World Court.
Examples include the River Meuse case itself (application of
equitable principle of estoppel), the Temple of Preah Vihear case
(1962) ICJ Rep. 6. (application of acquiescence/and also estoppel).
In the North Sea Continental Shelf cases: the formulation of
equitable principles concerning the delimitation of continental
shelf.
In the Gulf of Maine case. the ICJ stated that the concepts of
acquiescence and estoppel in international law follow from the
fundamental principles of good faith and equity.
2. 6. 3 Soft Law
In recent years a new idea has crystallized in the international
community, which has: come to be known as soft law (as opposed
to hard law, which makes up international law proper).
Soft law can be defined as a body of guiding principles, standards,
rules of conduct, or declarations of policy, which are not strictly
binding norms of law.
Some say that there exists a considerable grey area of soft law
between the white space of law and the black territory of nonlaw.
Soft law can be found in treaties not yet in force, in resolutions or
declarations of international organizations, or in final acts of
international conferences.
It chiefly relates to human rights, international economic relations,
and protection of the environment.
Examples of soft law instruments: the Helsinki Final Act 1975, the
Bonn Declaration on International Terrorism 1978, and the Rio
Declaration on the Environment and Development 1992.
2. 7 THE HIERARCHY OF THE SOURCES [pp. 48-52]
There is no indication in Article 38 of the Statute of the priority or
hierarchy of the sources of international law.
Apart from a reference to subsidiary means in Article 38(1)(d), we
do not know the order in which the sources of law are to be
applied.
When drafting the original text of Article 38, words of priority were
included: the sources listed should be considered by the Court in
the undermentioned order (i.e., the order (a) to (d) in which they
now appear); but ultimately they were deleted.
Indeed, there is no difficulty if the rules derived from the various
sources are complementary.
However, in cases of conflict it is vital to determine which source
shall prevail.
(1) Jus cogens: the highest in the hierarchy

A rule of jus cogens is a peremptory norm of general international

law: a norm accepted and recognized by the international
community of States as a whole as a norm from which no
derogation is permitted (Art. 53 of VCLT).
As States cannot derogate from rules of jus cogens through treaties
or customary rules, the treaty or customary rules contrary to them
are null and void.
Therefore, rules having the character of jus cogens are the highest in
the hierarchy of the sources of international law.
(2) A treaty binding on the parties to the dispute
If there is a treaty or convention, which is relevant to the subject
matter of the dispute, and to which both parties to the dispute are
parties, that treaty or convention will definitely be the law for the
Court to determine the dispute.
This is due to the two factors. First, a treaty is law for the parties to
it. Secondly, it will normally be the case that a treaty is lex specialis,
and as such prevails over any inconsistent rules of customary law
Again, in practice, Even though there is a treaty binding on the
parties, there may be quite a number of legal issues involved in the
dispute. The treaty cannot have solutions to all of them.
The Court, unavoidably, has to apply customary law to deal with
issues in respect of which there are no answers in the treaty.
The Court will need to apply customary law to interpret the
provisions of the treaty.
Therefore, the Court in most cases apply both treaty law and
customary law simultaneously.
Treaty versus custom
Treaty and custom, the two major sources, usually are quite
complementary.
A treaty may codify custom or may lead to the development of new
customary law.
On the other hand, States may abrogate a customary rule by
concluding a treaty; the latter may again be modified by new
customary law.
Therefore, treaty law and customary law are of equal authority and
of equal status (with the exception of the principle of jus cogens).
In any case, in case of conflict, which law shall prevail? There are
some guiding principles in this respect:
(1) lex posterior derogat legi priori (a later law repeals an earlier law).
(2) lex specialis derogat legi generalis (A special law prevails over a
general law).
(3) Lex posterior generalis non derogat legi priori specialis (a later law,
general in nature, does not repeal an earlier law which is more special
in nature).
Inconsistent treaties
If there are successive treaties relating to the same subject matter,
which treaty shall prevail?
The answer can be found in Article 30 of VCLT, which is subject to
Article 103 of the UN Charter.
The essence of Article 30 is that when all the parties to the earlier
treaty are parties also to the later treaty, then the general rule of lex
posterior derogat legi priori applies and the later treaty shall prevail
over the earlier treaty.
Article 103 of the Charter reads: In the event of a conflict between
the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international
agreements, their obligations under the present charter shall
prevail.
This article is known as clause paramount and it clearly
acknowledges the supremacy of the UN Charter over any other
treaties. See the Lockerbie case (Provisional Measures) (1992) ICJ
Rep. 3, 114. [Textbook pp. 166, 456]
(3) Customary international law
If there is no treaty binding on the two parties to a dispute, or if one
of the parties to the dispute is not a party to the treaty, then the
Court has to rely exclusively on customary international law for the
determination of the dispute.

(4) General Principles of Law and Other sources

Since the main function of general principles of law is to fill gaps in
treaty law and customary law, it would appear that treaties and
custom prevail over general principles of law in the event of
conflict.
Judicial decisions and learned writers are described in Article
38(1)(d) as subsidiary means which suggests that they are
subordinate to the other three sources listed: treaties, custom and
general principles of law.

CHAPTER 3
INTERNATIONAL LAW AND MUNICIPAL LAW
How does an international ct decide an issue involving a rule of municipal
law?
How do rules of international law operate in the national legal sys?
Are they treated by States on the same footing as their own municipal law?
In the case of a conflict btw international law and municipal law, which law
prevails?
THEORETICAL APROACH
Monism and dualism
2 main theories on r/ship of IL & municipal law: monist theory & dualist theory.
1- The monist theory
IL & municipal law are 2 components of a single body of knowledge called
law. They form part of one & same legal order.
Thr may be conflict btw the 2 sys. If this happens, international law prevails.
All monists accept superiority of IL over municipal law.
Monism indicates that rules of IL can be directly applied in domestic sphere
of States.
2- The dualist theory
Assumes that IL and municipal law are 2 separate legal sys w/c exist
independently of each other.
IL regulates the r/ship btw States whereas municipal law regulates the rights
& duties of individuals w/in a state.
In case of conflict, International cts apply IL & municipal cts apply municipal
law.
Since the debate over monism and dualism can only lead to controversy, most
writers believe that preference should be given for practice over theory.
It is more useful to turn to attitude of international cts and tribunals to
municipal law and then examine the approaches taken by national legal systems
towards IL in practice.
MUNICIPAL LAW IN THE INTERNATIONAL LEGAL SYS
Purpose of international tribunals is to decide matters according to IL; bt this
does not mean that questions of municipal are irrelevant.
Municipal law may be an issue b4 international cts and tribunals.
(1) Municipal law as sources of IL
Decisions of national ct & prin of national law may b used as sources of IL.
International Ct can use the sources u/A38(1)(c) & (d) of its Statute.
Example: Barcelona Traction Co case (concept of limited liability co)
(2) Municipal law v obligation under IL
Can a State plead its municipal law as an excuse for violating IL?
State cannot plead a rule of or a gap in its own ML as a defence to a claim
based on IL.
A27 of VCLT reaffirms this prin: A party may not invoke provisions of its
internal law as justification for its failure to perform a treaty.
Thr is consistent judicial and arbitral authority for the rule:
Alabama Claims Arbitration: Britain could not rely on absence of domestic
legis as a reason on non-fulfilment of its obligations of neutrality in the
American civil war.
Exchange of Greek and Turkish Populations case: a State w/c has
contracted valid international obligations is bound to make in its legislation
such modifications as may be necessary to ensure fulfilment of the obligations
undertaken.
Free Zones of Upper Savoy and the District of Gex Case: France could not
rely on her own legislation to limit the scope of her international obligations.
La Grand case (2001) ICJ Rep. 466: Failure by US to give notification to 2
German nationals of their right to consular protection. Ct: Although national
authorities were complying with their national law it was a violation of
International law apology is inadequate US must review & reconsider the
conviction and sentence.
IL IN NATIONAL LEGAL SYSTEMS
In theoretical terms, application of IL in national legal systems is often explained
in terms of doc of incorporation & transformation.
Doc of Incorporation & Transformation
doc of incorporation, IL is regarded as automatically incorporated in
municipal law. IL is ipso facto part of municipal law & may be applied as such
by municipal cts.
doc of transformation, IL is not ipso facto part of municipal law. A rule of IL
will become part of ML only after transformation of it into ML by means of a
statute or an Act of parliament.
doc of incorporation & transformation correspond with monism & dualism
respectively.
In practice, a State may have 2 diff ways of application of IL in view of the fact
that there are 2 main sources of IL: (1) customary IL & (2) treaties.
The British Practice
(1) Application of Customary IL

British prac as to customary IL is mainly based on doc of incorporation.

Blackstone declared in his commentaries: The law of nationsis here adopted
in its fullest extent by common law, & it is held to be a part of the law of the
land.
Buvot v Barbuit, Lord Talbot that the law of nations, in its full extent, was part
of the law of Eng.

R v Keyn (The Franconia) A German vessel collided & sank a English vessel w/in
3 miles of English coast. Ct: Trial ct lacked juris because thr was no suff evi that
3-mile limit hd estab as a rule of CIL.
West Rand Central Gold mining Co. v R A rule of customary IL would be
acknowledged & applied by English cts provided that it could be proved by
satisfactory evi.
Chung Chi Cheung v R [1939] AC 160 (PC)
Lord Atkin, stated: ct acknowledges existence of a body of rules w/c nations
accept amongst themselves. On any judicial issue they seek to ascertain what the
relevant rule is, & having found it, they will threat it as incorporated into
domestic law, so far as it is not inconsistent with rules enacted by statutes or
finally declared by their tribunals.
In this famous dictum, judge formulated 2 qualifications to application of doc of
incorporation. To be part of English law, a customary rule must not be
inconsistent with:
(1) Statutes or (2) Prior judicial decisions of final authority.
Customary IL v Act of Parliament
Mortensen v Peters (1905) 8 F. (J.) 93. Fishery Board for Scotland issued a
bylaw under Herring Fishery Act, making an offence to fish in Moray Firth, part
of w/c is more than 3 miles frm coast. Appellant, master of a Norwegian ship
convicted in a Scottish ct of the above offence for fishing at a place covered by
the bylaw bt beyond 3-mile limit.
Neither r we a tribunal sitting to decide whether an Act of Legis ultra vires as
in contravention of generally acknowledged princ of IL. For us an Act of
Parliament ...is supreme, we are bound to give effect to its terms.
After the decision in Mortensen v Peters, several Norwegian trawlers arrested &
their masters were convicted for the same offence. They were released following
a series of protests by Norwegian Gov.
In 1907, a Foreign Office spokesman admitted in House of Commons that: the
Act of Parliament is in conflict with IL.
Customary IL & doc of judicial precedent
A difficult question, whether, if rules of IL r part of Eng law, they are subject
to the doc of judicial precent.
The former view was that IL may be applied as part of Eng law with the
proviso that it be not inconsistent with prior judicial decisions of final
authority. [Although the rules of IL might change, Eng cts were unable to
apply the new rule bt had to continue to apply the former rule.]
The position of the law has changed by virtue of the following case.
Trendtex Trading Corp v Central Bank of Nigeria [1977] QB.529, CA. Bank of
Nigeria claimed to be immune frm juris of the ct under prin of sovereign
immunity. At that time thr was clear precedent that a UK ct was bound by doc of
absolute immunity. Ct applied theory of restrictive immunity on ground that IL
had changed in the intervening yrs.
Ruling of Lord Denning
As btw these 2 schools of thought, I now believe that the doc of
incorporation is correct. [A] decision of this ct - as to what was the ruling of
IL 50 or 60 years ago - is not binding today. IL knows no rule of stare decisis.
If ct today satis tat rule of IL on a subject has changed. it can giv effect to that
change-& apply the change in our English law-w/o waiting for HL to do it.
Conclusion
doc of incorporation is the dominant prac of Eng cts in respect of customary
IL.
It is not exactly the same incorporation doc as practised in the 18th century bt
a modified one.
incorporation doc with the 2 qualifications formulated by Lord Atkin in
Chung Chi Cheung v R: A rule of customary IL forms part of Eng law so far as
it is not inconsistent with statutes or judicial decisions of final authority.
(2) Application of treaties
Treaty-making power in UK is an executive function w/in prerogative power
of Crown (Executive).
legislative power is vested solely in the Parliament (Legis).
treaty does not automatically become part of Eng law in absence of a legis
made by Parliament.
the prac of UK is based on doc of transformation.
gen rule, thr must be an enabling act made by Parliament for a treaty to have
legal effect in UK.
treaties which:
(1) involve any alteration of the common or statute law; or
(2) affect the rights & obligations of British subjects
definitely req an enabling Act of Parliament to have legal effect in UK.
The Parlement Belge (1878-79) 4 P.D. 129
Parlement belge collided with an Eng ship. Ds argued that their ship was not
amenable to juris of Eng ct,
1st, bcoz she was prop of King of Belgians. 2ndly, bcoz Queen, by a convention
with King of Belgians, has placed this ship in category of a public ship of war.
Judgment by Sir Robert Phillimore
(1) Since Parlement Belge was a ship conveying mails & carrying commerce,
she could not be regarded as public ship w/c was exempted frm process of
law.
(2) Affirming the prin that treaties that affected private rights req the sanction
of legis to be operative, held:
convention hd not been confirmed by any statute of Parliament & hd no
legal effect in UK.
Judgment by the Court of Appeal
CA reversed decision on ground that immunity sought was available at
customary IL & hence at common law. [CA based its decision on old absolute

10

immunity theory. Phillimores ruling is now good law because the modern
theory is restrictive immunity].
The ruling at 1st instance to effect that a treaty cannot become part of UK law
unless thr is an enabling Act of Parliament is still good law.
enacted treaty
If a treaty is transformed by statute into UK law, it has full legal effect.
usually done by means of an enabling Act w/c a schedule is attached
containing the provisions of treaty.
For example, Diplomatic Privileges Act 1964 enacts V Con on Diplomatic
Relations, 1961.
Treaty is an integral part of the Act & the treaty & Act r as one.
unenacted treaty
w/o legal effect in UK law. its provisions cannot be made subject of litigation
in municipal cts.
Maclaine Watson v Department of Trade & Industry[[1990] 2 A C 418 HoL:
Even if a treaty is not enacted in Schedule of an Act, it may be that Act
was intended to give effect to the terms of the treaty in ML. In such a case,
treaty is relevant and cts will refer to the treaty for purpose of
interpretation of the statute in case of ambiguities or uncertainties.
Practice of the USA
In customary IL, American prac seems to be similar to British prac.
Customary IL is normally consid as part of law of US so far as it is not in
conflict with a statute or a judicial decision.
The Paquete Habana, Gray J:
IL is part of our law. For this purpose, whr thr is no treaty & no controlling
executive or legis act or judicial decision, resort must be had to the customs and
usages of civilised nations
In this case, US Sup Ct found & applied customary rule of IL exempting coastal
fishing vessels from capture as prize of war.
So far as treaties are concerned, American prac is diff frm British prac.
In US, treaty-making power is not vested solely in executive. The legis also
plays a decisive role.
AII, S2 of US Consti: President shall have power, by and with advice &
consent of Senate, to make treaties, provided 2/3 of Senators present concur.
This Consti, & laws of US , & treaties made under the authority of US,
shall be sup law of the land.
In principle treaties made in accord with Consti are, like Consti itself & the
Fed statutes, the sup law of the land.
In prac, a distinction is made by US Sup Ct btw self-executing and non-selfexecuting treaties.
Self-executing treaties are those w/c do not expressly or by its nature req
legislation to make them a source of law in US. They are automatically part of
American law.
Non-self-executing treaties, do req such legislation.
Sei Fujii v State of California 19 ILR (1952) 312
In determining whether a treaty is self-executing, cts look to intent of the
signatory parties as manifested by language of the instrument, & if the
instrument is uncertain, recourse may be had to the circum surrounding its
execution. it must appear that framers of treaty intended to prescribe a rule
that, standing alone, would be enforceable in the cts.
In US, treaties enjoy same status as national statutes. They generally derogate
pre-existing legislation (on the basis of prin of lex posterior derogat legi
priori), bt are overruled by statutes enacted later. See Edye v Robertson.
Although IL could traditionally be regarded as part of law of US, an analysis
of the recent cases indicates that US Sup Ct has not been active in applying
IL.
It appears to have ignored IL. United States v Alvarez-Machain [1992] 31
ILM 902, where the forcible abduction of a Mexican national frm Mexico by
US agents was allowed, in apparent contravention of an extradition treaty
and of the customary IL of human rights.
Application of IL in Malaysia
FConsti of Msia, unlike the constitutions of many other States, is entirely
silent on the crucial questions of:
(1) whether IL is to be deemed part of the law of the land; or
(2) how the State organs of Malaysia (executive, legisl & judiciary) have to
apply IL.
(1) Application of customary IL
Thr is no reason why Malaysia should not apply an estab rule of CIL.
(1) Msia is a member of international community & not isolated State. A
State actively involved in international relations & an emerging
economy, trading with a number of countries.
Firmly estab rules of CIL accepted by almost all States of the world
should be regarded as part and parcel of Malaysian law provided that
they are not contrary to Malaysian statutes and public policy. It is
actually in the interest of Malaysia.

(2) CIL is diff for treaty law. A rule of gen CIL is binding on all
states except a persistent objector. So long as Malaysia has not
persistently objected to a rule of CIL, that rule is binding on
Malaysia.
But will Malaysian cts apply CIL in the absence of any statutory
authority which requires them to do so?
It is imperative to look for a statutory authority.
Section 3(1), Civil Law Act 1956

Save in so far as other provision has been made or may hereafter be made by
any written law in force, the Ct shall apply the common law of England and
the rules of equity as administered in England at the date of the coming into
force of this Act;
Provided always that the said common law and rules of equity shall be
applied so far only as the circumstances of the Federation and their
respective inhabitants permit and subject to such qualifications as local
circumstances render necessary.
We have seen earlier that doc of incorporation is the main British approach
in respect of CIL.
CIL is deemed to be part of English common law in so far as it is not in
conflict with a statute or a judicial decision of final authority.
According to s3(1), the Eng common law is to be applied by Malaysian cts in
the absence of any written law (i.e. statutes) provided that it is not contrary to
public policy of Malaysia.
CIL, as applied in UK as part and parcel of the common law, is applicable in
Malaysia, to the extent that it is not contrary to the Malaysian statutes and
public policy of Malaysia.
A160, FC
defines law to include written law, the common law in so far as it is in
operation in Federation , and any custom or usage having the force of law in
the Fed.
common law is w/in meaning of law and CIL subject to 2 limitations is
part and parcel of common law.
In practice, cts in Malaysia appear to have applied CIL when occasion arose
although the application is not direct but through the medium of English
common law.
Malaysian cts apply CIL as part and parcel of common law.
Sockalingam Chettiar v Chan Moi [1947] MLJ 154. Malayan Union CoA
CoA had to determine the legality under international law of certain letters of
administration granted by the Japanese during their occupation of Malaya. Ct
referred to Hague Regulations, w/c are the well-established customary rules of
IL & held: letters of admin were in accordance with IL.
PP v Oie Hee Koi [1968] 1 MLJ 148 (PC - Appeal frm Malaysian FCt)
Although the main issue was concerned with the interpretation of Geneva
Conventions of 1949, PC: the position of the accused was covered prima facie by
CIL.
PP v Narogne Sookpavit [1987] 2 MLJ 100 (HCt, JB)
One of the arguments made by respondents was based on right of innocent
passage. Shanker J stated:
customary law to w/c A14 of Convention on the Territorial Sea is said to
correspond may be the customary law of Eng or it may be customary IL. In Ct
below me, DC seemed to suggest that it was self-evident that such customary law
was part and parcel of Malaysian law. I am far from satisfied that this is the
caseIt is unfortunate that the judge outrightly rejected the validity of CIL right
of innocent passage. The right of innocent passage is in fact an established rule
of CIL accepted by almost all States of the world including Malaysia. Although
the learned judge disregarded CIL in this case, it was ironical enough that the
same judge relied on a rule of common law, which was based on CIL.
Village Holdings Sdn, Bhd v Her Majesty the Queen in Right of Canada,
[1988] 2 MLJ 656. HCt, KL
Shankar J.: So far as a foreign sovereign is concerned, I hold that s3 of our Civil
Law Act 1956 leaves no room for any doubt that we in Malaysia continue to
adhere to a pure absolute doc of State immunity.
This case clearly demonstrates the fact that the learned judge relied on English
common law position which was declaratory of CIL prin of absolute immunity.
Commonwealth of Australia v Midford (Malaysia) Sdn Bhd Per Gunn Chit
Tuan SCJ
S3 of CLA Act only req any Ct in West Malaysia to apply common law and the
rules of equity as administered in England on the 7th of April 1956. That does not
mean that the common law and rules of equity as applied in this country must
remain static and do not develop.When judgment in the Philippine Admiral was
delivered by the PC, it was binding authority in so far as our courts are
concerned. That is more so in view of the very strong persuasive authority in I
Congreso case in w/c the HoL unanimously held: restrictive doc applied at
common law. We are therefore of the view that the restrictive doc should apply
here
The bold ruling of the SC of Malaysia is to be warmly welcome.
(2) Application of international treaties
FConsti of Malaysia contains no provision which says that IL shall be deemed
part of the law of the land or that treaties shall be the laws of Malaysia.
A74 SM of Federal and State Laws
(1) Parliament may make laws with respect to any of the matters enumerated in
the Federal List or the Concurrent List (that is to say, the First or Third List set
out in the Ninth Schedule)
Federal List (Ninth Schedule)
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;
From wordings of A74 and the Federal List read together, it is clear that
Parliament has the exclusive power to make laws relating to external affairs
(including treaties, agreements and conventions)
It is equally clear that Parliament has no power to conclude (that is, to sign,
ratify, or accede to) international treaties and that it is the exclusive domain
of the Executive.

11

The power of the Executive

A39: The executive authority of the Federation shall be vested in the YDPA and
exercisableby him or by the Cabinet or any Minister authorized by the
Cabinet.
A80(1): The executive authority of the Federation extends to all matters with
respect to which Parliament may make laws.
By virtue of Federal List, matters with respective to w/c Parliament may
make laws include external affairs which in turn include treaties,
agreements and conventions with other countries.
The executive authority of the Federation extends to the making or
conclusion of treaties, agreements and conventions with other countries.
In Malaysia the treaty-making power is vested in Fed Gov.
Govt. of the State of Kelantan v Govt. of Fed of Malaya & Tunku Abdul
Rahman Putra Al-Haj
On eve of the establishment of Malaysia, Kelantan challenged constitutionality
of the Malaysia Agreement and the Malaysia Act.
The Malaysia Agreement was an international treaty signed by UK, Fed of
Malaya, Spore, Sabah & Srwk. It was enacted by Fed of Malaya to implement
that Agreement.
The main argument made by Kelantan Gov was that the consent of the
individual States of the Fed of Malaya should have been obtained before the
arrangements for Malaysia can be lawfully implemented.
Referring to A39 and 80(1), the Ct affirms the constitutionality of the Malaysia
Agreement as follows:
The Malaysia Agreement is signed for Fed of Malaya by PM, Deputy PM and
four other members of the Cabinet. There is nothing whatsoever in the
Constitution requiring consultation with any State Government or the Ruler of
any State.
In Malaysia, like in the UK, Executive possesses the treaty-making capacity
while the power to give legal effect domestically to treaties rests in
Parliament.
A treaty to be operative in Malaysia, therefore, needs legislation by
Parliament.
Perhaps thr are treaties that can be implemented locally w/o any necessity for
the introduction of a statute.
Nevertheless, treaties that affect the rights of private persons or involve
changes in ML req legislation.
It is clear that as far as treaties are concerned, Malaysian prac is based on doc
of transformation.
See p. 79 for examples of Malaysian statutes transforming treaties into ML.
(3) IL & ML: the issue of primacy
Malaysia consti is silent as to primacy of IL over ML or vice versa.
if there is conflict, statute shall prevail. P.P. v Wah Ah Jee:
Cts here must take the law as they find it expressed in Enactments. It is not
duty of a Judge to consid whether the law so set forth is contrary to IL or not.
This is based on common law prin of supremacy of an Act of Parliament.
(4) State responsibility for breach of IL
A breach of IL by a State entails international responsibility of that State.
International cts and tribunals have repeatedly affirmed this prin.
MBF Capital Bhd. & Anor v Dato Param Cumaraswamy. [1997] 3 CLJ 927
Immunity from Legal Process case (1999) ICJ Rep. 62.

12

INTERNATIONAL PERSONALITY
[THE SUBJECTS OF INTERNATIONAL LAW]
(PP. 83-97)
Legal personality is primarily an acknowledgement that an entity
is capable of exercising certain rights and being subject to certain
duties under a particular system of law.
Subjects of the law are the persons to whom the law attributes
rights and duties.
Therefore, the term subject of the law is synonymous with the
term legal person.

1 THE CONCEPT OF INTERNATIONAL PERSONALITY

[pp. 82-83]
An entity has international personality if it has rights and duties
under international law. The following are generally accepted as
characteristics of international personality:
(1) Rights and obligations under international law;
(2) Treaty-making capacity;
(3) Capacity to make international claims; and
(4) The enjoyment of privileges and immunities from national
jurisdictions.
These are also known as indicia of international personality. In
practice, it is only States and certain international organisations
like the United Nations that have all of these capacities to the
fullest degree.
Subjects of international law are those who possess international
personality.
Are States the only subjects of international law?
In the 19th century, States were the only subjects of international
law.
Oppenheim emphatically stated: Since the law of nations is based
on the common consent of States, and not of individual human
beings, States solely and exclusively are subjects of international
law.
In the present day, it is not true.
While States remain the predominant actors in international law,
the position has changed.
After the Second World War, new actors have emerged on the
international plane, such as public international organizations
established by States (IGOs), non-governmental organizations
(NGOs) created by individuals, multinational corporations and
even individual human beings.
They are now recognized as possessing some, although limited,
international personality.

2 STATES AS SUBJECTS FO INTERNATIONAL LAW

States are the subjects of international law par excellence.
It is, therefore, important to have a clear idea of what a State is for
the purposes of international law.
Professor Oppenheim defines State in these terms: A State is in
existence when the people is settled in a country under its own
sovereign government.
Four requirements of statehood in Oppenheims sense
(1) People: who live together as a community in spite of the fact
that they may belong to different races or religions, or of
different colours
(2) Country : there must be a country in which the people have
settled down.
(3) Government
(4) Sovereignty: Sovereignty means the supreme authority above
which there is no other higher authority. Sovereignty denotes
independence all round within and without the boundary of a
state.
2. 1 Criteria of statehood under international law [ P. 85]

Article 1 of the Montevideo Convention on Rights and Duties of

States 1933 provides as follows:
The State as a person of international law should posses the
following qualifications:
(a) A permanent population;
(b) A defined territory;
(c) Government; and
(d) Capacity to enter into relations with other States.
(1) Defined Territory
For a State to exist, there must be a defined territory. The control of
territory is the essence of a State.
This is the basis of the central notion of territorial sovereignty,
establishing the exclusive competence of the State to exercise
sovereign authority within that territory.
(2) Permanent population
There must be people linked to a specific territory on a more or less
permanent basis and who can be regarded as its inhabitants.
Wandering tribes do not qualify to be a State.
In the Western Sahara case (1975) ICJ Rep. 12, the territory of the
Western Sahara is populated by nomadic tribes who go freely across
the desert. However, it was held that their link with the territory is
such that they may be regarded as its population.
(3) Government
To be a State there must be a government. The government must be
effective within the defined territory and exercise control over the
permanent population. The mere existence of a government in itself
does not suffice, if it does not have effective control.
Aaland Island Case
(1920) LNOJ Special Suppl. No. 3, p. 3.
The main question in this case was the date on which Finland
became a state. Finland had been a part of the Russian Empire until
the Russian Revolution. The Finnish Parliament declared Finlands
independence on December 4, 1917. But there was opposition within
Finland by those who rejected the idea of independence. As a result,
violence broke out and for a time the government of the new state
was able to maintain order only with the help of the Soviet troops.
Held: Only in 1918, Finland became a state.
(4) Capacity to enter into relations with other States
When the Montevideo Convention refers to capacity to enter into
relations with other States, it is referring to independence in law
from the authority of other States.
In Austro-German Customs Union case, (1931) PCIJ Reports, Series A/B,
No. 41, Austria and Germany, by a Protocol of 1931, reached an
agreement on a customs union establishing free trade between the two
States. Judgment of Judge Anzilotti:
The legal conception of independence has nothing to do with a
States subordination to international law .
It also follows that the restrictions upon a States liberty, whether
arising out of ordinary international law or contractual
engagements, do not as such in the least affect its independence. As
long as these restrictions do not place the State under the legal
authority of another State, the former remains an independent State
however extensive and burdensome those obligations may be.
Federal States [p. 88]
A federal State is a union of several sovereign States. The union is,
first, based on an international treaty of the member states, and
secondly on a subsequently accepted constitution of the federal
State.
In the view of Professor Wade, federation pre-supposes a desire for
some form of union among independent States, which, though they
desire union for some purposes, nevertheless wish to preserve their
identity and some measure of independence.
A distinctive feature of a federal State is that in foreign policy it acts
as a single subject of international law. Thus a federal State is said to
be a real State and an international person.
On the other hand, the international position of the member states
is not so clear.

13

 Units (member states) within a federal State may or may not be

allowed by the federal constitution some freedom to conduct their
own foreign affairs.
If, and to the extent that, they are allowed to do so, such units are
regarded by international law as having international personality.
E.g., the Republics of the former USSR were all entitled in law to
conduct their own foreign affairs and two of them Byelorussia and
the Ukraine - to a small extent did so.

Accordingly, the Court has come to the conclusion that the

Organisation is an international person. That is not the same thing
as saying that it is a State, which it certainly is not, or that its legal
personality and rights and duties are the same as those of a State.
What it does mean is that it is a subject of international law and
capable of possessing international rights and duties, and that it has
capacity to maintain its rights by bringing international claims.

The World Court in clear terms confirms the international personality

of the UN. Of course, not all IOs possess international personality.
The Malaysian Practice
If we read together Articles 74, 76 and the Federal List of the
Federal Constitution of Malaysia, it is crystal clear that the federal
Parliament and the Federal Executive (the Cabinet) have the
exclusive power relating to external affairs, foreign affairs or
international relations. No such power can be exercised by the
component states.
The conclusion then is that in Malaysia international personality is
vested in the Federal State and the component states possess no
international personality whatsoever.

3 INTERNATIONAL ORGANISATIONS [pp.89-93]

Although the States remain the most important subjects of
international law, they are no longer the only subjects. Apart from
states, international organisations can be the subjects of
international law.
Since they are the organisations of states they have important
functions assigned by the states. In order that these organisations
can carry out their functions effectively, they must enjoy some
measure of international personality.
There is no doubt that the United Nations Organisation possesses
international personality and is a subject of international law.
A very important provision of the Charter indicating the legal
capacity of the United Nations is Article 104, which says: The
Organisation shall enjoy in the territory of each of its Members
such legal capacity as may be necessary for the exercise of its
functions and the fulfilment of its purposes.
Article 105 provides, inter alia, that:
1. The Organisation shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary for the
fulfilment of its purposes.
2. Representatives of the Members of the United Nations and
officials of the Organisations shall similarly enjoy such privileges
and immunities as are necessary with the Organisation
Furthermore, the Charter itself recognizes the treaty-making
power of the principal organs of the United Nations.(Arts. 43, and
63 of the Charter, Headquarters Agreements).
In any case, the most important evidence for the determination of
the international personality of the United Nations appears to be
the famous advisory opinion of the World Court in the Reparations
for Injuries Suffered in the Service of the United Nations.

The intention of member States can be inferred from various

factors.
That intention may also be expressly mentioned in the constituent
instrument of the organization. The best example is Article 4 (1) of
the Rome Statute Establishing the International Criminal Court
(ICC), 1998, which provides:
The Court shall have international legal personality. It shall also
have such legal capacity as may be necessary for the exercise of its
functions and the fulfilment of its purposes.
Many public international organisations, including the specialised
agencies of the United Nations such as the ILO, the IMF, the IBRD,
the IMO, and the regional organisations such as the European
Community, the Organization of American States (OAS), the
Organization of African Unity (OAU), have certain degree of
international personality in order to achieve their objectives.

4 INDIVIDUALS AND CORPORATIONS

The primary purpose of international law is to regulate the relations
of States. Before the 20th century the prevailing view was that the
individual was merely an object and not a subject of the law of
nations.
Since World War I, however, the community of nations has become
increasingly aware of the need to safeguard the rights of the
individual. Human rights become a matter of vital concern to states.
As a result, many scholars advocate the thesis that individuals
should also be regarded as subjects of international law.
It is true that States are reluctant to allow individuals to have any
rights and duties outside their own national legal systems.
Nevertheless, no one can deny the fact that individuals indeed have
certain rights and duties at international law.
(1) Legal responsibility of individuals under international law
There are norms of international law, which establish direct
individual responsibility. Thus individuals who commit
international crimes can be punished in accordance with
international law. These crimes, inter alia, are:
(1) Piracy jure gentium;
(2) Slave-trading;
(3) Genocide; and
(4) Other international crimes such as, war crimes crimes against
humanity, and torture.

Reparations for Injuries Suffered in the Service of the United Nations

Advisory Opinion. (1949) ICJ Rep. 174 [p. 91]
On September 17, 1948, Court Bernadotte, a Swedish national, was
assassinated in Jerusalem, which was then in Israeli possession. He
was the Chief United Nations Truce Negotiator in the area. In the
course of deciding what action to take in respect of his death, the
United Nations General Assembly sought the advice of the
International Court of Justice.
The General Assembly requested the ICJ to give an advisory opinion
on: Whether the United Nations has, as an Organisation, the
capacity to bring an international claim against the responsible de
jure or de facto government with a view to obtaining reparation due
in respect of the damage caused
(a) To the United Nations;
(b) To the victim or the persons entitled through him.

After the World War II, international military tribunals were set up
at Nuremberg and Tokyo. The Judgments of these Tribunals
affirmed the criminal responsibility of individuals under
international law. The Nuremberg Judgment reads:
Crimes against international law are committed by men, not by
abstract entities, and only by punishing individuals who commit
such crimes can the provisions of international law be enforced.

Judgment

The recent Rome Statute of the International Criminal Court, 1998

upheld the criminal responsibility of individuals as follows:

This trend was reaffirmed by the Convention on the Prevention and

Punishment of the Crime of Genocide, 1948. The Convention is
another attempt to universalise the principle of individual criminal
responsibility under international law.
Article 4 of the Convention states: Persons committing genocide
shall be punished, whether they are constitutionally responsible
rulers, public officials or private individuals

14

1. The Court shall have jurisdiction over natural persons pursuant to

this Statute.
2. A person who commits a crime within the jurisdiction of the
Court shall be individually responsible and liable for punishment
in accordance with this Statute.
(2) Rights of individuals under international law
In Western countries, there has been a growing tendency to admit
that individuals have some degree of international personality, but
the personality is usually seen as something limited much more
limited than the legal personality of international organizations.
In Eastern countries, however, writers and governments usually
deny that individuals have any rights under international law; they
probably fear that such rights would undermine the power of States
over their own nationals.
One way of proving that the rights of the individuals exist under IL
is to show that the treaty conferring the rights give the individuals
access to an international court or tribunal in order to enforce their
rights.
Nevertheless, as a general rule, the individuals have no locus standi
or access to international courts and tribunals. Most international
tribunals are not open to individuals.
There are only a few exceptions to this general rule; in exceptional
cases, individuals may be given by treaty the right to appear before
an international tribunal.
The first example is the European Convention on Human rights and
Fundamental Freedoms, 1950 and its Protocols. By virtue of this
Convention, any private individuals, who are nationals of States
Parties, can bring an action before the European Court of Human
Rights against their own government for violations of human rights.
The second example is the Convention on the Settlement of
Investment Disputes between States and Nationals of other States
1965.
The Convention provides a mechanism for the settlement of
disputes between a State Party to the Convention and a national or
company of another State Party on the consent of both sides.
It creates the International Centre for the Settlement of Investment
Disputes (ICSID), an international arbitral tribunal, in Washington
D.C. under the auspices of the World Bank.
Access to the International Court of Justice
However, as far as ICJ is concerned, only sovereign States and no
private individuals or corporations have access to the contentious
cases before the Court.
Article 34 (1) of the Statute of the ICJ expressly provides that Only
States shall be parties in cases before the Court.
Therefore, if individuals and companies are victims of an
internationally wrongful act committed by a foreign State, they
have to persuade their national State to take up the case.
However, a number of factors need to be taken into account before
initiating such an international claim.
(1) First, there must have been an internationally wrongful act
committed by a foreign State against a national or a corporation
of the claimant State.
(2) Secondly, the two requirements for the admissibility of an
international claim must be satisfied, namely:
(a) Nationality of claims: there must be a linkage of
nationality between the victim and the State making the
international claim; and
(b) Exhaustion of local remedies: the victim must have been
exhausted all the effective local remedies available at the
wrong-doer State.
(3) Thirdly, the jurisdictional requirement must be satisfied.
According to Article 36 of the Statute of the ICJ, the Court can
exercise jurisdiction only with the consent of both States parties
to the dispute.

15

CHAPTER5 STATE TERRITORY

Portion of the surface of the globe w/c is subjected to the sovereignty of a
State. State w/o a territory is not a Sate at all.
IL recog the supreme authority of every State w/in its territory. Known as
territorial sovereignty.
1st issue - how a State acquires sovereignty over its territory.
ACQUISITION OF SOVEREIGNTY OVER TERRI [TITLE TO TERRI]
5 traditional modes of acquisition:
(1) occupation; (2) prescription;
(3) cession;
(4) conquest;
(5) accretion.
These modes offer merely a convenient method of exposition.
In prac, a ct will not specifically refer to any of these modes.
Issue of territorial sovereignty is complex and involves the application of
various prin of law to the facts.
To consider the complementary principles such as acquiescence, recognition,
estoppel,, and uti possidetis juris.
Historical changes in concepts of law need to be taken into account.
th
In 20 century, prin of self-determination has increasingly important. At
same time, the use of force by states to settle disputes/otherwise to effect a
territorial gain is illegal.
1. OCCUPATION
Occupation - intentional acquisition by a State of sovereignty over a
territory w/c is at the time not under the sovereignty of anor State (terra
nullius).
2 basic requirements:
(1) Territory must be terra nullius;
(2) Occupation must be effective in the sense thr must be an intention to
occupy, followed by actual display & exercise of State functions over it.
What is terra nullius?
Terra nullius - territory belong to no one at time of occupation.
Position of territories inhabited by native tribes with certain social and
political organization.
Western Sahara case Advisory Opinion. (1975) ICJ Rep. 12
Morocco claimed the territory on the basis of historic title. ICJ found that
since Western Sahara was inhabited by ppl w/c, if nomadic, were socially &
politically organized in tribes & under chiefs competent to rep them, it could
not be regarded terra nullius (at the time of the Spanish colonization) and
Morocco was not able to show any evidence of the actual display of authority
over the territory.
Right of self-determination was recognized.
Effective occupation
Occupation must be effective. Req have become increasingly strict in IL.
In 16th century, it was interpreted very liberally. Mere discovery gave a State
an inchoate title, an option to occupy the territory w/in a reas time, during
w/c time other States not allowed to occupy the territory.
Present law, 2 elements:
(1) Intention & will to act as sovereign (animus); and
(2) Peaceful & continuous display of State authority (factum).
Since occupation = sovereign act, private person cannot acquire territorial
sovereignty by occupation, w/o express authorization/subseq confirmation
(or ratification) of his State.
Anglo-Norwegian Fisheries case: independent activity of private
individuals is of little value unless it can show they have acted in pursuance
of a license/some other authority received from their gov/that in some other
way their Gov have asserted juris through them.
No occupation without the acts of private individuals.
ICJ in Minquiers and Ecrehos case treated actual & permanent settlement
of Englishmen on the islands as one of the acts indicative of sovereignty.
(1) Intention to act as sovereign
In Clipperton Island Arbitration and Eastern Greenland case, Ct: actual
display of sovereignty must be accompanied by an animus or intention to act
as sovereign.
Can be presumed frm the simple fact that State is exercising such authority in
the territory.
In territories such as Clipperton Island and Eastern Greenland, whr extensive
display of authority is not possible, it is enough that the State makes clear its
sovereign intentions by means such as:
(1) publication of notices of sovereignty in various journals in Clipperton
Island Arbitration; and
(2) declarations stating application of national laws to Greenland by
Denmark in the Eastern Greenland case.
(2) Peaceful and continuous display of State authority
Exercise of State authority must be peaceful and continuous until the critical
date.
(a) Peaceful display of State authority
Not challenged by other States.
In occupation, as distinct from prescription, a display of State authority
does not lose its peaceful character by mere protests frm rival State.
Consistency protestation over a long period, if not rebutted by Claimant
State, may disturb peaceful character of the display of State authority.
(b) Continuous display of State authority and the critical date
Continuity: title to territory could not be established by once and for all
display of State authority. Hd to be continuous. This encompass 2 ideas.
(1) 1st, display of State must be ongoing. Bt degree of continuity may vary with
each case.
(2) 2nd, display of State must exist up to the critical date.

Critical date: date w/c location of territorial sovereignty is decisive. Date of

the origin of the dispute
State w/c can demonstrate an effective title in the period immediately
preceding the critical date has the superior claim.
Dispute btw Norway & Denmark w/c led to Eastern Greenland case arose
frm a Norwegian proclamation on 10-7-1931 announcing occupation of the
th
area. Ct: As critical date is July 10 , 1931it is suff [for Denmark] to estab a
valid title in the period immediately preceding the occupation.
Island of Palmas case, critical date was the date of Peace Treaty btw Spain &
US (1898), the time at w/c the latters claim first arose.
Date of origin of the dispute will not be critical in every circum, it depends
on the facts of each case.
(c) The concept of Inter-temporal law
Rights of parties to a dispute derive from legally significant acts, or a treaty
concluded, very long ago. Sir Gerarld Fitzmaurice states the rule applicable in
these cases:
It can now be regarded as an estab prin of IL that in such cases the
situation must be appraised, & treaty interpreted, in light of the rules of IL as
they existed at the time, and not as they exist today.
Known as inter-temporal law. Island of Palmas case, Judge Huber: The
effect of discovery by Spain is thrfore to be deter by the rules of IL in force in
th
the 16 century. Judge Huber had to consid whether Spanish sovereignty
over the Island subsisted at the critical date in 1898. In doing so he gave a new
dimension to the rule under discussion. As regards the question w/c legal sys
prevailing at successive periods is to be applied in a particular case (the socalled inter-temporal law), distinction must be made btw creation of rights
and existence of rights. The existence of the right, in other words its
continued manifestation, shall follow cond req by evolution of law.
His exposition of the inter-temporal law - acquisition of territory not only
should be consistent with IL in existence at time when a particular act was
done or alleged right arose bt also that the continuing sovereignty should
satisfy the req of IL as developed in later periods until the critical date.
This extension of doc has been criticized (esp. by Western States) on ground it would threaten many titles to territory & lead to instability.
Brownlie emphasizes the need for care in applying the rule.
This ruling has in practice been carefully & flexibly interpreted w/in context
of all the relevant rules relating to the acquisition of territory including
recognition and acquiescence.
Decided cases on peaceful and continuous display of State authority
Ct simply see w/c of the 2 competing States has peaceful & continuous
exercise of State authority or effective control over the disputed territory
(also known as effectivites).
Most authoritative statement of law - by Max Huber in
Island of Palmas case (Netherlands v USA) (1928) 2 R.I.A.A. 829, Permanent Ct
of Arbitration., Sole Arbitrator Max Huber.
Dispute arose btw US & Netherlands on sovereignty over Island of Palmas, an
island 50 miles southeast of Mindanao. US believed the island to be included
in the archipelago known as Philippines Islands ceded to it as a result of
Treaty of Peace btw the US & Spain in 1898 (The Treaty of Paris). Netherlands
consid the island as forming part of the territory of their possessions in the
East Indies.
Award:
title alleged by US as constituting the foundation of its claim of cession,
brought about by Treaty of ParisUS bases its claim, as successor of Spain, in
the first place on discovery. [D]iscovery alone, w/o subsequent act, cannot
suffice to prove sovereignty over Island of PalmasIt is moreover an island
permanently inhabited, occupied by a population suff numerous for it to be
impossible that acts of admin could be lacking for very long periodsThe
inability in such a case to indicate any acts of public admin makes it diff to
imagine actual display of sovereignty.
Netherlands found their claim to sovereignty on the title of peaceful &
continuous display of state authority over the IslandThe acts of display of
Netherlands sovereignty at Palmas, especially in 18th & 19th centuries are not
numerous.manifestations of sovereignty over a small & distant island,
inhabited only by natives, cannot be expected to be frequent.[T]he display
of sovereignty should be established at critical period preceding year
1898Thr were contracts of suzerainty between East Indian Co. & natives
States (including Palmas Island). By means of this suzerainty, Netherlands
consid Island as a part of its territory & sovereign authority was exercised btw
1700 and 1898. No record of protest against the exercise of sovereign authority
of Netherlands. Peaceful character of Netherlands sovereignty must be
admitted. Therefore, Netherlands title holds good. In this case, Arbitrator
accepted Netherlands peaceful & continuous display of State authority over
the Island.
The case indicates very clearly that State that can show a peaceful &
continuous display of State authority in the period leading up to the critical
date can defeat any other claim whatever its basis.
It has to be a peaceful display of such authority, i.e. 1 w/o protests by
interested states & suff duration to estab a prescriptive title.
State which exercises peaceful & continuous display of State authority has
title by way of occupation if territory was terra nullius, and by way of
prescription if it was not.
Legal Status of Eastern Greenland Case (Norway v Denmark) PCIJ Rep. Ser.
A/B (1933), No. 53
Norway occupied Eastern Greenland by Royal Proclamation of July 10th, 1931,
claiming it was terra nullius. Denmark also claimed this territory & applied to
Ct that declaration of occupation by Norwegian Gov consti violation of

16

existing legal situation and are unlawful & invalid. Ct gave judgment for
Denmark as requested.
Judgment
Danish argument is that Denmark has exercised sovereign right over
Greenland for a long time & has obtained thereby a valid title to
sovereigntyDanish claim is founded on the peaceful & continuous display of
State authority over the islandA claim to sovereignty based upon continued
display of authority involves 2 elements.
(Manifestation of exercise of sovereign authority by Denmark)
(1) Documents granting trading, hunting & mining concession;
(2) Concessions granted for erection of telegraph lines; and
(3) Legislation fixing limits of territorial waters in 1905.
ICJ reaffirmed the status of effective occupation as a fundamental norm of
the law of territorial acquisition. It also supports the view that the doc of
effectiveness vary according to the nature of the territory in dispute.
If rival State could not make out a superior claim & especially when the area
in dispute is thinly populated or an unsettled region, Ct will be satis with very
little in the way of exercise of State authority.
If territory concerned is totally uninhabited, ct will take it as an exceptional
case & the proof of effective occupation will be much easier. Clipperton Island
case can best illustrate the point.
Clipperton Island Case France v Mexico (1931). 26 AJIL (1932)
In 1858, a French lieutenant on board a commercial vessel cruising past
Clipperton Island declared the Island (which was uninhabited) to be French
territory. The lieutenant notified French consulate in Honolulu, w/c
published declaration of French sovereignty in a local journal. Very little was
then done in relation to the Island by French authorities.
In 1897, a Mexican gun-boat landed & forced 3 inhabitants to raise Mexican
flag, claiming the Island had been discovered by Spain, to w/c Mexico was the
successor State frm 1836.
Arbitrator: discovery by Spain hd not been proved, and France had not
abandoned her claim & so had title to the Island.
Award
Not been proven that this island had actually discovered by Spanish
navigators. Consequently, in 1858, France proclaimed her sovereignty over
Clipperton, the island was in legal situation of territorium nullius, &
susceptible of occupation. The question remains whether France proceeded
to an effective occupation, satisfying the cond req by international law for
validity of that kind of territorial acquisition.
Besides the animus occupandi, actual taking of possession is a necessary cond
of occupation. Takes place when state estab in the territory itself an
organization capable of making its laws respected.
Bt a territory completely uninhabited, is, frm the 1st moment when the
occupying state makes its appearance thr, at the absolute & undisputed
disposition of that state, from that moment the taking of poss must be consid
as accomplished & occupation is thereby completed.
Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan
[Indonesia v Malaysia] ICJ Judgment of 17 December 2002
On basis of special agreement, Indon & Msia submitted to ICJ the dispute
over Pulau Ligitan and Pulau Sipadan.
Indons claim to sovereignty rests primarily on Convention w/c Great Britain
& Netherlands concluded in 1891 for purpose of defining the boundaries.
Indon relies on a series of effectivites w/c confirm its conventional title.
Msia argues that it acquired sovereignty over the islands following a series of
transmissions of the title originally held by the former sovereign, Sultan of
Sulu. Msia claims that title subseq passed to Spain, to US, to GB and finally
to Msia. Title is confirmed by a number of British & Msian effectivites. If the
Ct were to conclude that the islands hd originally belonged to Netherlands, it
effectivites would have displaced any such Netherlands title.
Having found that neither Parties has treaty-based title, Ct consid effectivites
as an independent & separate issue.
In support of its arguments relating to effectivites, Indon cites patrols in area
by vessels of the Dutch Royal Navy, activities of Indon Navy, as well as
activities of Indonesian fishermen.
Msia mentions control over taking of turtles and collection of turtle eggs, the
most important economic activity on Sipadan for many years. It also relies on
establishment in 1933 of a bird sanctuary on Sipadan. It further points out
that the British Borneo authorities constructed lighthouses on Ligitan &
Sipadan Islands in early 1960s and exist to this day, are maintained by Msian
authorities.
Ct refers to Legal Status of Eastern Greenland case and states that very little in
the way of the actual exercise of sovereign rights is req in the case of claims
to sovereignty over areas in thinly populated or unsettled territories. it
cannot take into consideration acts having taken place after date on w/c the
dispute btw the Parties crystallized. Ct mainly analyses the effectivites w/c
date frm period before 1969 (critical date).
None of effectivites relied on by Indon is a legislative or regulatory character.
In respect of presence of Indonesian navy, thr is no evi showing that the
naval authorities considered Ligitan and Sipadan to be under the sovereignty
of Indon. Activities by private persons, Indonesian fishermen, cannot be seen
as effectivites if they do not take place on the basis of official
regulation/under gov authority. Activities relied upon by Indon do not consti
actual exercise of sovereignty reflecting intention and will to act in that
capacity.
Ct 1st observes that both the measures taken to regulate & control collecting
of turtle eggs & establishment of a bird reserve must be seen as regulatory &
administrative assertions of authority over territory w/c is specified by name.

Construction of lighthouses are not normally consid manifestations of State

authority. Ct refers Maritime Delimitation between Qatar and Bahrain
(2001) ICJ Rep.: construction of navigational aids can be legally relevant in
the case of very small islands. Activities relied by Msia are not many bt they
are diverse in character, include legislative, administrative and quasi-judicial
acts.
At the time these activities carried out neither Indonesia nor
Netherlands, ever expressed its disagreement or protests. Ct concludes that
Msia has title on the basis of the effectivites referred.
Whether the two islands are terra nullius/not & w/c State hd historic title
over the islands appears to be immaterial for the Ct. Cts reasoning in this
case was essentially based on effectivites or peaceful and continuous exercise
of State authority over the disputed territory.
2 PRESCRIPTION
Peaceful and continuous exercise of the State authority for a long period over
territory subject to the sovereignty of another.
Like occupation, essential element of prescription is peaceful &
continuous display of State authority.
Diff btw prescription and occupation - prescription is acquisition of territory
w/c belonged to anor State.
To establish a title by prescription both a stricter proof and a longer period of
the display of State authority is req, as compared with the establishment of a
title by occupation. Bcoz essence of prescription is acquiescence of the one
State in the adverse possession of the other.
Req
(1) Poss must be exercised in form of actual exercise of sovereign authority.
(2) Poss must be peaceful & uninterrupted. There must not be any protest or
objection by the former sovereign. Display of State authority by the
acquiring State is to be accompanied by acquiescence on the part of losing
State. Protests/other acts or statements w/c demonstrate lack of
acquiescence can prevent acquisition of title by prescription.
(3) Poss must be public. The exercise of peaceful and continuous poss must
be open & public (Island of Palmas case), so that acquiescing States may
have knowledge of it.
(4) Poss must be for a certain length of time. Legal power depends in part on
its persistence. A few writers have prescribed fixed periods of yrs.
Prevailing view is that the length of time req is a matter of fact depend on
particular case.
3 CONQUEST & ANNEXATION
Taking poss of territory through military force in time of war. After conquest,
the conqueror annexed the enemy territory. Conquest followed by annexation
was regarded as a mode of acquiring territory.
In 20th century, as a result of the provisions of the Pact of Paris of 1928 and
UN Charter, IL restricts right of States to go to war.
A2(4) of Charter, use of force against territorial integrity & political
independence of a State is illegal. Conquest is no longer a lawful mode of
acquisition
1970 General Assembly Declaration on Prin of IL (GA Resolution 2625):
Territory of a State shall not be the object of acquisition by anor State
resulting frm threat or use of force. No territorial acquisition resulting frm
threat/use of force shall be recog as legal.
Israeli occupation of Palestinian territories
1948 Israel unilaterally declared itself an independent State on part of
Palestinian territory. 1st Palestinian-Israeli war broke out. Armistice
Agreements were made in 1949 & Israel gained more territory.
In 6 Day War in 1967, Israel again invaded Sinai Peninsula (including the
Gaza Strip). It also invaded West Bank; East Jerusalem & Golan Heights.
Security Council Resolution 242 (1967)
Security CouncilEmphasizing the inadmissibility of the acquisition of territory
by war
1. Affirms that the fulfilment of Charter prin req establishment of a just & lasting
peace in Middle East w/c should include the application of both the following
principles:
(i) Withdrawal of Israeli forces from territories occupied in the recent conflict;
Defying numerous resolutions of SC & GA, Israel still occupies the Palestinian
& Arab territories and establishes Jewish settlements. Palestinians have been
homeless, w/o any territory & suffering untold hardships in refugee camps for
more than 50 years.
Apart frm condemnation, no enforcement measures could be taken against
Israel for unlawfully taking territory by military force, due to veto or
threatened veto by the sole Super Power of the World.
4 CESSION
Transfer of territory, usually by treaty, frm one State to anor. There may
sometimes be exchange of territory.
Thr are a number of sales of territory. France sold Louisiana to US for 60
million francs in 1803. In 1867, Russia sold her Alaskan territory in America to
US for 7,200,000 dollars. In 1899, Spain sold Caroline Islands to Germany for
25,000,000 Pesotas.
The normal rules relating to formation and validity of treaties apply to
treaties of cession. Thr must be no duress/fraud in the procurement of
treaty.

17

 A52 of Vienna Convention on Law of Treaties, 1969, A treaty is void

if its conclusion has been procured by threat/use of force in
violation of the prin of IL embodied in the Charter of UN.
5 ACCRETION AND AVULSION
Attain sovereignty over new land as a result of natural forces. This may happen
slowly (accretion), by gradual movement of a river bed or suddenly (avulsion),
by creation of an island in territorial waters by volcanic action.
ACQUIESCENCE, RECOGNITION AND ESTOPPEL
Play a very important role in the acquisition of territory.
In many cases recog of territorial sovereignty may occur. Recog is usually on
part of 3rd States & not necessarily losing state.
Recog may take the form of unilateral express declaration, or in treaty
provisions.
Eastern Greenland case, Ct referred to treaties btw Denmark and other
States: To the extent that these treaties consti evi of recog of her sovereignty
over Greenland in gen, Denmark is entitled to rely upon them.
Acquiescence has same effect as recognition, bt it arises frm conduct, absence
of protest. Acquiescence is applied to the attitude of losing State in a dispute,
whereas recognition refers to attitude of 3rd States.
Both are not essential to title in the normal case. They r significant in
controversial cases whr thr r competing acts of poss.
Whr each of rival claimants can show that it has exercised a certain degree of
control over the disputed territory, a tribunal is likely to decide the case in
favour of the State w/c can prove that its title has been recog by other States
or thr has been no protests or acquiescence by the rival State.
Principle of estoppel also plays a significant role in territorial disputes. In
appropriate conditions acquiescence will have the effect of estoppel.
Temple of Preah Vihear case, Ct: Siamese authorities hd acquiesced for
many years by failing to object to a map that had been drawn up by a mixed
commission in 1908, showing temple as being on the Cambodian side. (This
case indicates the importance of acquiescence as well as estoppel).
Recognition, acquiescence and estoppel form an interrelated sm and it is
quite diff to make a distinction.
Uti Possidetis juris
the frontiers of newly independent States are to follow the frontiers of the
old colonial territories frm w/c they emerged and that they cannot be easily
altered by unilateral action.
Originated in South America as a consequence of the collapse of the Spanish
empire when the former provinces agreed that the limits of their sovereignty
should conform to the limits of the old colonial boundaries.
Principle applied in Frontier Dispute case (Burkina Faso v Mali) and ICJ
confirmed that uti possidetis was a prin of gen application, not confined
solely to South America.
Land, Island and Maritime Frontier Dispute (El Salvador v Honduras),
World Court relied heavily on uti possidetis. Ct made it clear that neither
effective display of State functions in disputed areas nor economic inequality
generated by old boundaries was suff to displace the uti possidetis prin,
although it did recog that its application may be difficult in some cases. Ct
observed that frontiers established by uti possidetis may be modified by
acquiescence of one State in the effective exercise of control by anor over a
disputed area.
1992, European Community (EC) Arbitration Commission on Yugoslavia
decided that prin of uti possidetis also applied to newly independent States
formerly part of a federation.
Application of uti possidetis beyond the colonial context is an important
development & one that is necessary if stability among the international
community is to be preserved.

18

 CHAPTER

STATE JURISDICTION
1 NATURE OF JURISDICTION [p. 139]
Jurisdiction is an aspect of State sovereignty. It includes both the
power to prescribe rules (prescriptive jurisdiction) and the power to
enforce them (enforcement jurisdiction).
The former refers to the legislative power of a State and the latter
includes both executive and judicial power of enforcement.
Some writers, therefore, simply talks about legislative jurisdiction,
executive jurisdiction, and judicial jurisdiction, reflecting the three
functions of a sovereign State.
Territorial sovereignty and Territoriality of jurisdiction [p. 140]
in the present world sovereignty is undoubtedly territorial in
character. Therefore, in assessing the extent of jurisdiction the
starting point must necessarily be its territoriality.
Even though a State may have a general power under international
law to prescribe jurisdiction, the enforcement of that jurisdiction
can generally take place only within its own territory.
A state cannot enforce its prescriptive jurisdiction in the territory of
another State.
The actual enforcement of jurisdiction the operation of a police
force, national courts, etc. is limited to the territory of the State
asserting jurisdiction.
[If a man commits a murder in Malaysia and escapes to Indonesia,
the Malaysian courts have jurisdiction to try him, but the Malaysian
police cannot enter Indonesian territory and arrest him there.]
Principle of territorial sovereignty: a State may not perform any
governmental act in the territory of another State without the
latters consent.
Types of jurisdiction
Exclusive and concurrent jurisdiction.
Criminal and civil jurisdiction

2 GENERAL PRINCIPLES ON WHICH CRIMINAL JURISDICTION

IS CLAIMED
[pp. 144-45]
There are five general principles on which criminal jurisdiction is
claimed by states:
(1) Territorial principle (i.e. determining jurisdiction by reference to
the place where the offence was committed);
(2) Nationality principle (i.e. determining jurisdiction by reference
to the nationality of the person committing the offence);
(3) Protective principle (i.e. determining jurisdiction by reference to
the national interest injured by the offence).
(4) Universality principle (i.e. determining jurisdiction by reference
to the custody of the person committing the offence); and
(5) Passive personality principle (i.e. determining jurisdiction by
reference to the nationality of the person injured by the offence)
[Taken from the 1935 Harvard Research Draft
Convention on Jurisdiction with Respect to Crime ]
Dickinson.
2. 1 Territorial Principle [pp. 145-48]
A State can exercise jurisdiction over persons, property, acts or
events occurring, within its territory. This is known as the
territorial principle of jurisdiction. The classic formulation of the
principle can be found in the dictum of Lord Macmillan in the
Cristina case:
The Cristina case
It is an essential attribute of the sovereignty of this realm, as of all
sovereign independent states, that it should possess jurisdiction over
all persons and things within its territorial limits and in all causes civil
and criminal arising within these limits.
The territorial principle has received universal recognition.
The principle has a number of practical advantages, including the
convenience of the forum and the involvement of the interests of
the State where the crime is committed.

Moreover, the witnesses and the evidence are likely to be within the
territory of the state where the crime was committed.
Extension of the territorial principle [p. 146]
The Harvard Research Draft Convention proposed that a State be
allowed territorial jurisdiction when a crime is committed in whole
or in part within its territory. A crime is committed in part within
the territory when any essential constituent element is
consummated there.
It means that due to the modern development of inter-state
transactions, territorial principle should be extended to include:
(1) Subjective territorial principle; and
(2) Objective territorial principle.
According to the subjective territorial principle, a State has
jurisdiction over offences commenced in its territory but completed
or consummated abroad.
Generally accepted and often applied is the objective territorial
principle, according to which a State has jurisdiction when any
essential constituent element of a crime is commenced in another
state but completed or consummated in its territory. The classical
example is the firing of a gun across a frontier causing a death on
the territory of the forum.
Objective territorial principle
The leading case on the objective territorial principle is the Lotus
case (France v Turkey) (1927) P.C.I.J. Rep. Ser. A, No. 10.
In this case, there was a collision on the high seas in the
Mediterranean between a French steamer, the Lotus, and a Turkish
steamer, in which the latter was sunk with the loss of life of eight
Turkish sailors. Upon arrival of the Lotus at a Turkish port, its
French officer of the watch, Lieutenant Demons, was arrested on
the criminal charge of manslaughter. France objected to the Turkish
exercise of jurisdiction over its national.
The P.C.I.J. held that the Turkish vessel was to be assimilated to
Turkish territory, and decided that Turkey was entitled to exercise
jurisdiction because a constituent element in the offence of
manslaughter death had occurred on Turkish territory.
The World Court in the Lotus case recognizes the objective
territorial principle. (It is said that the majority probably supports
the passive personality principle as well. However, Judge Moore
dissented arguing that it was inconsistent with international law)
The objective territorial principle can also be applied in cases of
conspiracy, and violation of anti-trust and immigration laws by
activity abroad.
The case in point is D.P.P. v Doot [1973] A.C. 807 HL, where the
respondents were foreigners convicted of conspiracy to import
cannabis into the United Kingdom. The agreement amounting to
the conspiracy had been made abroad before the respondents were
arrested in England while in the course of carrying it out.
The House of Lords held that the English courts had jurisdiction in
the case because the offence continued to occur in England while
steps were being taken in concert there to carry out the purpose of
the conspiracy.
2. 2 Nationality Principle
International law permits a state to exercise jurisdiction over its
nationals for crimes committed anywhere in the world. The
jurisdiction of course will not be exercised until the national
physically comes within the territory of his or her home state.
Some countries claim jurisdiction on the basis of some personal
link, other than nationality, for instance, crimes committed abroad
by their permanent residents. In a few cases, the UK has also based
jurisdiction on residence.
6. 2. 3 Protective Principle
According to the protective principle, a state can punish acts
prejudicial to its security, integrity, or national interest, irrespective
of where those acts take place or by whom they are committed.
During the 19th century, continental countries began to claim
jurisdiction over acts committed by aliens abroad which threatened
the State.

19

 Such claims encountered initial opposition, but this opposition

soon ceased. Even the UK, which initially opposed this principle,
and the U S are now claiming on this ground.

and the obligations of State parties to punish persons guilty of these

crimes. (Art. 49, Convention I).

Joyce v DPP
Joyce was charged with treason for having made propaganda
broadcasts to the UK from Germany for the German Government.
He argued that as he was a US national, he owed no allegiance to
the Crown and hence could not be guilty of treason.
The H L found that as the accused was holder of a British passport
(even though the passport had been obtained by fraud), he owed
the Crown allegiance and was guilty of treason.

The 1949 Four Geneva Conventions obligate States Parties to

prosecute and punish grave breaches of the conventions.
Due to the almost universal adherence to these conventions, it is
generally accepted that the grave breach of these conventions (war
crimes and crimes against humanity) are subject to universal
jurisdiction.
The same is true with the crime of genocide (which was a subcategory of crimes against humanity but has later been regarded as
a separate international crime).

The Harvard Research Draft Convention speak of crimes against the

security, territorial integrity or political independence of the State
and the counterfeiting of the seals, currency, passports or public
documents issued by the State.
There is no doubt that in modern time a States security is
economic as well as political. As a result, conduct posing a real
threat to a States economy could be subjected to the States
jurisdiction.

Attorney-General of the Government of Israel v Eichmann

Eichmann was the Head of the German Gestapo. He was in charge
of the policy that led to the extermination of between 4,200,000 and
4,600,000 Jews in Europe.
He was found in Argentina in 1960 by Israeli agents and abducted
to Israel. There he was prosecuted for war crimes, genocide, and
crimes against humanity. He was convicted and sentenced to death.
It was held by the court that:

The exercise of jurisdiction over these offences is unobjectionable,

but some States make wider claims to jurisdiction. These wider
claims are not acceptable and are obviously open to abuse.
The Harvard Research found that most, if not all, States used this
principle to a greater or lesser extent.
Therefore, the protective principle can be regarded as an accepted
head of jurisdiction under customary international law.

The abhorrent crimes are not crimes under Israel law alone.
These crimes, which struck at the whole of mankind and shocked
the conscience of nations, are grave offences against the law of
nations itself (delicta jure gentium). The jurisdiction to try crimes
under international law is universal.
It is, therefore, well established that genocide, war crimes, and
crimes against humanity are international crimes that attract
universal jurisdiction.
Other crimes of international concern, established by more recent
conventions, relating to hijacking of aircraft, sabotage, torture,
terrorism, hostage-taking, and drug-trafficking, raise questions as to
the legal basis of the alleged universal jurisdiction.
Such conventions create an obligation to prosecute or to extradite
the accused (aut dedere aut judicare).
It is, however, difficult to accept that such treaties, which are
binding only among the parties to them, by themselves create true
universal jurisdiction in relation to non-parties.

The Effects Doctrine

Some states have enacted legislation designed to give themselves
jurisdiction over any matters which produce an effect in their
territory.
This is the so-called effects doctrine. It goes beyond the protective
principle. What is protected by legislation is not limited to security
or national interest.
Example: the anti-trust legislation (anti-competition laws) of the
US; strongly resisted by many States, including those of the EU.
The US anti-trust legislation could penalise UK companies trading
lawfully in the UK but who have some minimal operating activity in
the US.
Another example: Cuban Liberty and democratic Solidarity Act
1996 (Helms-Burton Act)
To impose penalties on foreign companies investing in embargoed
countries, like Cuba, Libya.
Many States believe extensive extraterritorial jurisdiction to be
contrary to international law.

2. 5 Passive Personality Principle

2. 4 Universality Principle

Cutting case (1887)

Moore, Digest of International Law, vol. 2, 1906, 228-42.
In this case, a court in Mexico assumed criminal jurisdiction over an
American citizen for the publication of a defamatory statement
against a Mexican citizen in a Texas newspaper. The United States
protested against this.
The US and the UK has consistently opposed this principle in the
past.
In the US, however, it appears that it has come to accept the passive
personality principle in respect of terrorist activities and similar
serious crimes.
This principle is indeed an unnecessary extension of State
jurisdiction and it may cause considerable practical problems.
E.g.: if the act which is an offence under the law of the State
of nationality of the victim is not an offence under the law of the
State where it was committed or the law of the State of the
offender.
Since several objections can be raised to this principle as a ground
of jurisdiction, it is doubtful whether it is part of customary
international law.

Under international law, there are certain crimes which are so

destructive of the international order and are contrary to the
interests of the international community as a whole, that they are
treated as delicta jure gentium (crimes under international law).
It is generally accepted that all states are entitled to apprehend and
punish the perpetrators of crimes under international law
regardless of territorial or national link with them.
The purpose of conceding universal jurisdiction is to ensure that no
such crime goes unpunished.
More widespread version of universality principle: only the State
where the accused is in custody may prosecute him.
Universal jurisdiction in abstentia is not accepted by most States.
[See Arrest Warrant case (Congo v Belgium), separate opinion of
President Guillaume]
Crimes which are subject to the universality principle are very
limited in number.
The clearest, and non-controversial, illustration of such a crime is
piracy; for centuries there has been a true, universal jurisdiction
over piracy.
Slavery too is generally regarded as being subject to universal
jurisdiction.
As far as war crimes and crimes against humanity are concerned,
reference is especially made to the 1949 Four Geneva Conventions

If the victim of a crime is its national, a State can exercise

jurisdiction over a foreigner even though he committed it in a
foreign country.
This principle can be said as an opposite version of the nationality
principle (also known as active personality principle).
Mexico, Brazil and Italy claim criminal jurisdiction on the basis of
this principle.

2. 6 Conflict of Jurisdiction
Two or more States may be entitled to exercise jurisdiction over the
same person in respect of the same event. This is known as

20

concurrent jurisdiction and can give rise to protracted

jurisdictional disputes.
When more than one State has jurisdiction under international law,
priority depends solely upon custody. Normally it will be for the
State, which actually has custody of the accused to deal with the
matter.
If a concurrent jurisdiction occurs, it appears that an individual
may be subject to a second punishment, the so-called double
jeopardy issue.
There is a presumption against double jeopardy in international
law. It is acknowledged in Article 13 of the Harvard Research Draft
Convention.

3 JURISDICITON OVER PERSONS APPREHENDED IN

VIOLATION OF INTERNATIONAL LAW [pp. 158-65]
There have been several cases where an individual has been
abducted forcibly from the territory of one State to be tried in
another.
The question here is: Does abduction of the accused from a foreign
country bar a court from exercising jurisdiction?
3. 1 The practice of domestic courts: Male captus, bene detentus
Some courts have refused to take jurisdiction over offenders
brought before them by abduction.
However, some have insisted that how a person is brought before
them is not a matter for them: male captus, bene detentus (Loosely
translated: improperly captured, properly detained). They are only
concerned with the fact of his presence and the need to establish a
separate basis for jurisdiction.
The United States Supreme Court has been a staunch supporter of
the male captus, bene detentus rule and has in a series of cases
declined to set aside jurisdiction on the ground of prior kidnapping
of the defendant. The French and Israeli courts also follow the same
principle.
On the other hand, the courts in the United Kingdom, South Africa,
New Zealand and elsewhere do not support the male captus rule.
There is no uniform and consistent practice of States on this issue.

R. v Hartley
[1978] 2 NZLR 199 New Zealand [p. 161]
By virtue of a request by telephone from the New Zealand police,
the Australian police seized the accused by force in Australia and
put him on a plane to face murder charge in New Zealand.
The New Zealand Court held that it lacked jurisdiction because the
accused was brought to New Zealand by means of abduction, i.e., in
an illegal manner.
R v Horseferry Road Magistrates Court, ex parte Bennett
[1993] 3 All ER 138 [p.162]
Benett, a New Zealand citizen, was wanted in the UK in respect of
allegations of fraud. Benett was located in South Africa and the UK
police asked the South African police to send him forcibly to the
UK. This was done.
The HL held that, if Benett could prove his allegations, there would
have been an abuse of the process because the manner by which he
came before UK courts would have been a violation of international
law and the rule of law.
The above analysis clearly shows that male captus, bene detentus
rule is accepted by some courts and rejected by others.
Since there is no consistent State practice in this respect, we can
fairly conclude that it cannot be said as an established rule of
customary international law.
3. 2 Abduction of the Accused from a Foreign Country: a
Violation
of International Law [162-64]
In a case of abduction, violations of international law may be
involved in three ways:
(1) violation of territorial sovereignty of
another State[art. 2(4) of UN Charter; Lotus
case, Corfu Channel case];
(2) violation of the fundamental human rights of
the abducted person [UDHR: Art. 9; no one
shall be subjected to arbitrary arrest or
detention]; and
(3) violation of the extradition treaty (if any).

United States v Alvarez-Machain

504 U.S. 655 (1992) [pp. 159-60]
A US Drug Enforcement Administration (DEA) agent, was killed in
Mexico in 1985. Five years later, Dr. Alvarez Machain, a Mexican
citizen, was indicted by the US Federal grand jury for having
participated in the murder.
At the request of the DEA, Alvarez Machain was taken by force
from his office in Mexico by a former Mexican policeman and three
others, put on a private plane and flown to Texas, where he was
immediately arrested by Federal agents.
Alvarez Machain argued that the US courts lacked jurisdiction to
try him because of the manner by which he was apprehended.
The US Supreme Court held that although the abduction may have
been a violation of international law, a US Court could still exercise
jurisdiction.
The Court ordered Alvarez Machain to stand trial. But in 1992, the
trial judge, acquitted him for lack of evidence. Alvarez Machain
returned to Mexico.

4 EXTRADITION

The judgment in Alvarez Machain case disappointed a number of

advocates of international law and human rights activists and
caused them to see the US Supreme Court as favouring the
unprecedented extension of extraterritorial exercise of police
powers by the US Government in total disregard of well-established
principles of international law.

(1) Extraditable person and extradition crime

Before an application for extradition is made through the
diplomatic channel, two conditions are required to be satisfied:
(1) extraditable person; and
(2) extradition crime.

Eichmann case
[p. 160]
In this case, Eichmann was abducted in Argentina by persons who
were probably agents of the Israeli Government and abducted to
Israel without the knowledge of the Argentinean Government.
He was prosecuted under war crimes, genocide and crimes against
humanity. He was convicted and sentenced to death.

Apart from trial in abstentia, an unsatisfactory procedure, States

have to depend on the co-operation of the other States in order to
obtain surrender of suspected criminals or convicted criminals who
are, or have fled, abroad.
This form of international judicial assistance is called extradition.
Extradition, therefore, is the surrender by one state to another of an
individual accused of or convicted of an offence.
General principles of extradition
Customary international law imposed no duty upon States to
surrender alleged offenders to another State.
Therefore, the general rule is that there is no duty to extradite in the
absence of a treaty.
The problem of a demand to surrender the accused in the absence
of an extradition treaty has recently arisen in the Lockerbie Case
[see pp. 166, 456]

In respect of extraditable person, many States usually refuse the

extradition of their own nationals.
The ordinary practice of States is to list extradition crimes in their
extradition enactments or in bilateral extradition treaties.
Many extradition treaties provide that there shall be no extradition
in respect of political offenders (This is a legacy of the 19th century
emphasis on granting asylum to Politicians).

21

 In modern time, this exception has been narrowed so as to permit

the extradition of those suspected of terrorist offences.
(2) The Principle of double criminality
Most States follow the principle that the act charged must be a
crime under the law of both the state of refuge and the requesting
state.
(3) The principle of speciality
According to this principle, the requesting State is under a duty not
to punish the offender for any other offence other than that for
which he was extradited.

22

IMMUNITY FROM JURISDICTION

Although States can exercise jurisdiction over persons, things, and
occurrences within their territory, there are certain categories of
persons and entities, which, under international law, are immune
form the jurisdiction of municipal courts.
There are three types of immunity:
(1) Sovereign or State immunity;
(2) Diplomatic immunity; and
(3) Immunity of international organizations.

1. STATE IMMUNITY [p. 170]

Why should States be given immunity? There are several theories
among which the widely accepted one is that based on the
sovereign equality of States.
The maxim says- Par in parem non habet imperium-An equal has
no power over an equal. States are sovereign and they are equals.
Therefore, it is impossible for one sovereign State to exercise
authority (by means of its legal system) over another sovereign
State.
1. 1. The absolute and the restrictive immunity theories
There are two theories in respect of State immunity:
(1) Absolute immunity theory; and
(2) Restrictive immunity theory.
(1) Absolute immunity
According to this theory, Foreign States were immune from the
jurisdiction of domestic courts for all the acts whatsoever without
any exception.
E.g., The Parlement belge (1880) LR 5 PD 197 (A mail packet vessel
belonging to the Belgian King was held to be entitled to complete
immunity).
Mighell v Sultan of Johor [1894] 1 QB 149 (Sultan of Johor was held
to be immune from the jurisdiction of British courts in respect of an
action for breach of promise to marry).
Obviously, such a strict doctrine caused hardship to individual
litigants. They were denied the protection of the law even in the
clearest cases of wrongful act by the foreign State.
Ideological changes and an expansion in world trade after the First
World War caused an increase in direct State involvement in
commercial activities.
The result of these changes led to the development of the doctrine of
restrictive immunity.
(2) Restrictive Immunity
According to the theory of restrictive immunity, States can enjoy
immunity from the jurisdiction of a municipal court only in respect
of their sovereign acts (acta jure imperii), not in respect of their
commercial acts (acta jure gestionis).
Although some States still accept the principle of absolute
immunity, the principle of restrictive immunity is today adopted by
most States.
Restrictive immunity theory: the established law [p. 172]
State practice
Common law countries: In the past, adhered to absolute theory; but
later on have changed their policy and applied restrictive theory.
The US, the UK, Australia, Canada, Pakistan, Singapore, and
South Africa have enacted legislation on State immunity
adopting a restrictive doctrine. Other common law jurisdictions
also generally adopt a restrictive approach.
Civil law countries: The restrictive theory has a long history in most
of the continental countries although they have no specific
legislation.
Communist countries: Adhered to absolute theory, but with the
demise of Soviet Union, many have changed to restrictive theory.
International conventions: (for example, European Convention on
State Immunity 1972 , the UNCLOS 1982, and the very recent
Convention on Jurisdictional Immunity of States and Their
Property, 2004)) are mainly based on the doctrine of restrictive
immunity.

We can therefore conclude that the theory of restrictive immunity is

now an established rule of customary international law.
1.2

Distinction betweensovereign act and commercial act

A serious problem with the restrictive immunity rule is that the

distinction between sovereign act and commercial act is not always
precise and make the law much more complicated.
The following are some of the grounds upon which such a
distinction could be made:
(1) Purpose of the act (subjective test)
Some States base the distinction between sovereign acts and
commercial acts on the purpose of the act (subjective test).
For example, take the case of State A purchasing 10,000 pairs of
boots for its military. If we look at the purpose of the act (boots to
be used for military of the State), it is clearly a sovereign act.
However, if we look at the nature of the act( a commercial contract
to buy boots) it would be a non-sovereign act.
The application of a purpose test invariably favours the State party
and enlarges its immunity.
Purpose of the act (subjective test) alone is unsatisfactory because
all of the acts of a State can be said to have a public purpose of
some sort.
A State itself can have no private needs because it always acts for
the benefit of the country; on this basis, all State acts could be
classified as jure imperii, and this is quite ridiculous.
(2) Nature of the act (objective test)
Some States base the distinction on the nature of the act: whether
the key transaction is a private law relationship, such as a contract,
which can also be made by a private individual without any
governmental authority.
E.g., a contract for the purchase of uniforms for the army is a
commercial act since the nature of the transaction is a commercial
contract although one of the parties is a State and its purpose is to
buy uniforms for the military.
Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529
The Central Bank of Nigeria had issued a letter of credit in favour of
the plaintiff to pay for cement which was to be used to build army
barracks in Nigeria. The bank subsequently refused to honour the
LC. The plaintiff sued the Bank in UK.
The CA rejected the claim of sovereign immunity.
Held: Although the Central Bank of Nigeria was charged with the
functions of an organ of the State, the act in question, i.e. issuing a
letter of credit, was (looking at the nature of the act) an essentially
commercial act.
In this case, Lord Denning adopted the nature of the act (objective
test) and stated that the purpose of the act was irrelevant.
Even the nature test was criticised on the ground that some
contracts which are prima facie commercial transactions can only be
made by States, e.g. a contract for the purchase of a battleship.
(3) Subject matter approach
A third possible approach: US CA in the Victory Transport case
suggested to classify the sovereign acts and commercial acts in
advance (by legislation) to which a court could refer to should a
dispute arise.
The difficulty: it could result in arbitrary or discriminatory choices,
without taking into account the particular circumstances of
individual cases.
(4) The two-stage test: Nature of the act in its context
In I Congresso del Partido case, the House of Lords developed a
two-stage test (the nature of the act in its context).
According to this test, the court has to examine the entire context,
i.e., to look at the whole case, both the initial transaction between
the parties and the particular act that gives rise to the dispute.
In order for the matter to be jure gestionis, both of these acts, the
initial act and the act giving rise to the claim has to be private law
acts (acts which could be performed by any private citizen).
I Congresso del Partido [1983] 1 AC 244

23

 Two ships, The Playa Larga and The Marble Islands, were carrying
sugar to Chile on behalf of a Cuba State-trading enterprise. After a
right-wing party seized power in Chile, the first ship, owned by the
Cuban Govt., was ordered to return to Cuba with most of her sugar
unloaded, and the second ship, chartered by the Cuba Govt., was
ordered to Vietnam where the sugar was sold.
The plaintiffs, who were owners of the sugar, brought an action in
rem against I Congreso, a ship also owned by Cuba (sister ship).
Cuba claimed state immunity.
The case was decided at common law, the issue arising before the
State Immunity Act, 1978. The immunity was denied.
On the facts of the case, the initial act was a contract for the supply
of sugar and this was clearly a private law act because it could have
been done by any private individual. What, then, is the act which
caused the dispute the second act the diversion of the ships and
the discharge of the cargo to third parties?
In respect of The Playa Larga, which was actually owned by the
Cuban State, the act of diverting it was one which any owner
exercising the normal powers of ownership could have achieved. It
was, therefore, a private law act and there was no immunity.
In respect of The Marble Islands, this was a chartered ship and not
owned by Cuba at the relevant time and for two law Lords the order
diverting it did not seem to be done as owner but in exercise of
sovereign authority.
However, a majority of the HL thought that the act of discharging
the cargo at another destination was a private law act, being similar
to the tort of conversion. Therefore, Cuba was not immune.
In both cases, the initial act and the act that gave rise to the dispute
were private law acts and it was held that there could be no
immunity.
All of the law Lords in this case agreed with the two-stage test or
the nature of the act in its context approach in principle although
two law Lords disagreed with the actual application of the principle
in respect of The Marble Islands.
The nature of the act in its context approach was also applied in
the following cases:
(1) Littrel v USA (No.2) [1995]1 WLR 82; and
(2) Holland v Lampen-Wolfe [2000] 1 WLR 1573.

Practice in other jurisdictions [p. 177]

With the exception of Germany, most civil law courts believe that
although the nature test should be the primary method of
determining whether immunity should be granted, the purpose of a
transaction may also be relevant in some circumstances.
Many jurisdictions have adopted the contextual approach and
look to the purpose of a transaction when a nature only
consideration is inadequate.
Developing countries point of view
From a policy standpoint, many developing countries at the
International Law Commission have objected to the use of the
nature test exclusively.
They argue that purpose is an important consideration when
governments are engaging in contractual transactions vital to the
national economy.
UN Convention on Jurisdictional Immunities of States and Their
Property, 2004, Art. 2(2)
[To determine whether a particular transaction is commercial] [p.
196]
Reference should be made primarily to the nature of the contract or
transaction, but its purpose should also be taken into account if, in
the practice of the State of the forum, that purpose is relevant to
determining the non-commercial character of the contract or
transaction.
Conclusion
Although the restrictive doctrine is accepted in the overwhelming
majority of States, there is still diversity of practice as to the
distinction between a sovereign act and a commercial act.
Since State practice is not uniform, we cannot say that any of the
above mentioned tests have become an established rule of

customary international law. Therefore, a State, if not a party to a

particular convention, can safely follow its own national law to
distinguish a sovereign act from a commercial act.
1.3 The Malaysian Practice
Like the United Kingdom, Malaysia previously applied the doctrine
of absolute immunity. A foreign State or sovereign is absolutely
immune from the jurisdiction of Malaysian courts.
Mighell v Sultan of Johor
[1894] 1 QB 149. Court of Appeal
The defendant, Sultan of Johor, proposed marriage, under the
assumed name of Albert Baker, to a young English lady who later
sued him for breach of promise to marry.
He thereupon disclosed his identity and pleaded sovereign
immunity. The court accepted his contention and held that it had
no jurisdiction over a foreign sovereign state.

Village Holdings Sdn. Bhd. v Her Majesty the Queen in Right of Canada
[1988] 1 CLJ 878 (High Court of Kuala Lumpur)
This case clearly illustrates that at that time Malaysian courts
followed the doctrine of absolute immunity.
However, a fundamental change of the law has taken place as a
result of a landmark decision of the Supreme Court of Malaysia in
Commonwealth of Australia v Midford (Malaysia) Sdn. Bhd.

Commonwealth of Australia v Midford (Malaysia) Sdn. Bhd

[1990] 1 CLJ 878 (Supreme Court of Malaysia)
The HC at KL ordered the two officers of the Australian Customs
Service to return all documents and files seized by them belonging
to Midford (M) Sdn Bhd. They were also restrained from conducting
any further illegal searches/seizures on the premises of the Co.
Australia applied for the whole order of the court to set aside on the
ground of sovereign immunity.
The Supreme Court held that Australia was entitled to immunity.
The following is the landmark decision of Gunn Chit Tuan SCJ:
(After analysing the common law position) We are therefore of the
view that the restrictive doctrine should apply here .
Finally we have to consider whether the acts complained of were
done within the trading or commercial activity of the foreign state,
that is, whether they were acta jure gestionis or whether the acts
were within the sphere of the governmental or sovereign activity of
that state, that is, whether they were acta jure imperii?

We were of the view that the acts of the two Australian Customs
officers could not be classified as trading or commercial and
agree that the exercise of the functions of the customs arm of the
Australian Governmentcould not be classed as acta jure gestionis,
i.e. commercial in accordance with accepted international standards
and were therefore acta jure imperii. In applying the doctrine of
sovereign immunity our courts should havedisclaimed
jurisdiction in this case

1.4 Head of State immunity (State officials immunity) [p. 184]

A number of distinctions can be made (p. 185).
(1) The distinction between a serving head of State and a former
head of State;
(2) The distinction between acts done in a private capacity and
those done in a public capacity;
(3) Whether the case is before an international tribunal or a
domestic court.
See p. 184. para. 1
Both heads of State and heads of government are treated as a State,
which enjoys immunity under international law.
The position of a head of State in terms of immunity can be equated
to that of a head of government.
Immunity of a serving Head of state [p. 186]

24

 As far as civil proceedings are concerned, a serving head of state can

immune for his official acts but not for his private acts.
A serving head of state enjoys absolute immunity from criminal
proceedings, in respect of both acts performed in the course of
official functions and private acts. See, Ghadaffi case.

materiae as the commission of an international crime cannot be a

function of a head of State.
However, a former head of State, even though he committed an
international crime while he was a head of State, is not entitled to
immunity: both ratione personae and ratione materiae.

Ministers other than the head of government

1. 5 State immunity versus international crimes [pp. 190-93]

Immunity of a Foreign Minister [p. 187]

In the Arrest Warrant case, the ICJ stated that a Minister for
Foreign affairs occupies a position such that, like the Head of State
or the Head of Government, he or she is recognised under
international law as representative of the State solely by virtue of
his or her office. The consequence of such status was, on the facts
before the Court, to confer personal inviolability and immunity
from criminal jurisdiction.

Often persons accused of international crimes claim that they are

immune from criminal jurisdiction for they acted as State officials
(head of State, foreign minister, etc.). (immunity ratione materiae)
In the Pinochet case, the majority ruled that a rule of CIL has been
established to the effect that Heads of State cannot claim immunity
(ratione Materiae) if they committed international crimes.

Immunity of former head of state [p. 188]

A former head of State has no immunity in respect of private acts
committed while in office. Thus, in Noreiga case, drugs offences
committed by General Noriega when head of Panama have been
regarded by the US courts as private acts for which no immunity
survives.
However, it was assumed that a former head of state could still be
entitled to immunity for official acts done while he was a Head of
State.
What if a former Head of State committed an international crime
while in office?

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet

(No. 3) [pp. 188-89]
Pinochet, a former President of Chile, was indicted by a Spanish
judge on charges of torture and conspiracy to torture.
While Pinochet was in a UK hospital for treatment, the Spanish
government requested the UK government to extradite him to
Spain under an extradition treaty between the two countries.
In extradition proceedings in the UK, the issue arose whether
Pinochet was immune from the proceedings as a former Head of
State in respect of actions undertaken while he was Head of State.
The HL held that Pinochet was not immune because torture was a
crime under international law for which immunity as a Head of
State was not available. The Judgment [Per Lord BrowneWilkinson]:
The head of State is entitled to the same immunity as the State
itself. This immunity enjoyed by a head of State in power is a
complete immunity attaching to the person of the head of State .
Such immunity is said to be granted ratione personae.
What then when the head of State is deposed?
A former head of State enjoys similar immunities, ratione materiae,
once he ceases to be head of State. He loses immunity ratione
personae on ceasing to be head of State. Both (head of state and
diplomat) enjoy immunity for acts done in performance of their
respective functions (official acts) whilst in office.
The question then which has to be answered is . Can it be said
that the commission of a crime which is an international crime
against humanity and jus cogens is an act done in an official
capacity on behalf of the State? I believe there to be strong ground
for saying that the implementation of torture as defined by the
Torture Convention cannot be a State function.
The main issue in the Pinochet case was: whether the functions of a
head of State covered the commission of an international crime.
The ruling was that the functions of a head of State do not include
the commission of an international crime; it is against logic to say
that international law permits an act which is actually strictly
prohibited by international law itself.
According to the court, a serving head of State is entitled to
immunity even though he has allegedly committed an international
crime because he is being protected by immunity ratione personae
(or status immunity); he is not entitled to immunity ratione

Arrest Warrant of 11 April 2000 (Congo v. Belgian),

(2002) ICJ Rep. 121
Nevertheless, in the recent Arrest Warrant case, the ICJ by majority
found against the existence of such a customary rule. The facts of
the case are as follows:
A Belgian judge issued an international arrest warrant in absentia
against Yerodia, Congos Minister for Foreign Affairs. The warrant
accused Yerodia of crimes against humanity and grave breaches of
the 1949 Geneva Conventions, for speeches addressing racial hatred
allegedly inciting the massacre of Tutsi tribe in 1998.
Belgium asserted that it was exercising its universal jurisdiction to
try international crimes, and Belgian law did not recognize any
special immunities arising from a persons capacity as a foreign
official.
The decision of the Court was based on CIL.
The Court concludes that, a Minister for Foreign Affairs when
abroad enjoys full immunity from criminal jurisdiction and
inviolability.
The Court then addresses Belgiums argument that immunities of
Foreign Ministers can in no case protect them where they are
suspected of having committed war crimes or crimes against
humanity
After examining State practice, the Court states that under CIL
there is no exception to the rule according immunity to incumbent
Ministers for Foreign Affairs,
The Court finally held that given the nature and purpose of the
warrant, its mere issue violated the immunity that Mr. Yerodis
enjoyed as the Congos incumbent Minister for Foreign Affairs.
The House of Lords in Pinochet case made a landmark decision
abrogating Pinochets immunity under international law as a former
Head of State.
Many writers are of the view that the majority opinion in Arrest
Warrant case casts doubt on whether, as the Law Lords alleged in
Pinochet, a CIL norm has emerged abrogating immunity for serious
international crimes.
At the same time, the ruling of the ICJ in Arrest Warrant case itself
has been the subject of some criticism.
Some of the concurring judges themselves [Judges Higgins,
Kooijmans, and Buergenthal] have reservations to the reasoning of
the majority in Arrest Warrant case. There are also weighty
arguments against the judgment by dissenting judges.
Removing immunity ratione materiae for international crimes
in international treaties and instruments
Article 7 of the Nuremberg Charter and Article 6 of the Tokyo
Charter declare the irrelevance of official position as an exonerating
factor for international crimes.
The Nuremberg Judgment made it clear that there was a rule of CIL
and/or a general principle of law that an official should not be
considered immune from prosecution for serious international
crimes.
UN GA unanimously adopted Resolution 1/95: The fact that a
person who committed an act which constitutes a crime under
international law acted as Head of State or responsible Government
official does not relieve him from responsibility under international
law.
This principle was further reaffirmed in Article IV of the Genocide
Convention: Persons committing genocide shall be punished,

25

whether they are constitutionally responsible rulers, public officials

or private individuals.
Taking into consideration the huge number of parties to the
Convention (133 States parties), there is no doubt that the principle
removing the immunity ratione materiae of heads of States or
governments who commit the crime of genocide has clearly been
crystallized to be a rule of CIL.
The same principle appears in the Statutes of the ICTY, the ICTR,
and the ICC.
Article 27 of the Rome Statute of the ICC: official capacity as a Head
of State or Government, a member of a Government or parliament,
a elected representative or a government official shall in no case
exempt a person form criminal responsibility under this Statute
In the Pinochet, Lord Millet ruled that: International law cannot be
supposed to have established a crime having the character of jus
cogens and at the same time to have provided an immunity which is
coextensive with the obligation it seeks to impose.
Also in Furundzija, the ICTY stated a similar reasoning.
From these numerous international treaties and instruments, what
has become established as CIL is the principle that perpetrators of
heinous international crimes must not go unpunished and that
official position as heads of States does not exempt them from
criminal responsibility.
It is not true that the national courts have no jurisdiction
whatsoever and no place to play in punishing the perpetrators of
international crimes.
The national courts can exercise jurisdiction over international
crimes if they have nexus with the crime or the offender or the
victim and even if they have no such nexus at all they can exercise
jurisdiction on the basis of universality principle provided that the
offender is present in their territory.
The present position of international law can protect both sets of
requirements in a balanced way. [Joint Separate Opinion of Judges
Higgins, Kooijmans, and Buergenthal].
As long as a State official is in office, he enjoys full immunity from
jurisdiction and inviolability for whatever act he may perform (this
is by virtue of immunity ratione personae).
However, once he leaves office, he may continue to immune from
jurisdiction for the acts he performed in his official capacity (under
the rule of immunity ratione materiae), but not for his private acts.
And in addition, he may no longer take shelter behind (subjectmatter or status) immunities, with respect to international crimes.
If he is accused of such crimes, he may be subject to criminal
jurisdiction before an international court or a national court
provided that that court can assert jurisdiction over him under
international law.

Ministers for Foreign Affairs.

The staff of the mission
divided into three categories (Art. 1):
(a) The diplomatic staff, namely, members of the staff of the
mission having diplomatic rank, such as counsellors,
diplomatic secretaries, or attachs.
(b) The administrative and technical staff, such as clerical
assistants and archivists.
(c) The service staff, who are in the domestic service of the
mission, such as drivers, cleaners and kitchen staff.
Persona non grata
Article 9: the receiving State may at any time declare the head of the
mission or any member of the diplomatic staff of the mission
persona non grata or that any other member of the staff of the
mission is not acceptable. The sending State has either to recall the
person concerned or terminate his functions with the mission. This
is a step which can be used as a sanction if immunities are abused.
2. 2 Inviolability
Inviolability can be defined as secureness from violation, assault or
trespass.
The two main forms of inviolability are:
(1) inviolability of the mission; and
(2) inviolability of diplomatic agents.
Inviolability of the mission (Art. 22)
1. The premises of the mission shall be inviolable. The agent of the
receiving state may not enter them, except with the consent of
the head of the mission.
2. The receiving state is under a special duty to protect the
premises of the mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission.
3. The premises of the missionand the means of transport of the
mission shall be immune from search, requisition, attachment or
execution.
Inviolability of diplomatic agents (Art. 29)
The person of a diplomatic agent shall be inviolable. He shall not
be liable to any form of arrest or detention. The receiving state shall
treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.
See, United States Diplomatic and Consular Staff in Tehran case, (1980)
ICJ Rep. 3.
2. 3 Immunity from jurisdiction

2 DIPLOMATIC IMMUNITY [p. 198]

Diplomacy: any means by which states establish mutual relations,
communicate with each other, or carry out political or legal
transactions, in each case through their authorised agents.
Normally diplomacy involves the exchange of permanent
diplomatic missions. Nevertheless, diplomacy in a wider sense may
also include the categories of special missions or ad hoc diplomacy,
and the representatives of states at international conferences.
The rules of international law governing diplomatic relations were
the product of long-established State practice.
The law has now been codified to a considerable extent in the
Vienna Convention on Diplomatic Relations, 1961. (179 Parties to
the Vienna Convention; almost universal).
2. 1 Establishment of a diplomatic mission [p. 198]
A diplomatic mission usually include a head of the mission and the
members of the mission.
Article 14: Heads of mission - three classes:
(a) that of ambassadors or nuncios accredited
to Heads of State;
(b) that of envoys, ministers and internuncios,
accredited to Heads of Government;
(c) that of charg`e daffaires accredited to

Diplomatic agents are immune from the jurisdiction of local courts.

They are immune from criminal, civil, and administrative
jurisdiction.

Immunity from criminal jurisdiction

Article 31 (1): A diplomatic agent shall be immune from the
criminal jurisdiction of the receiving State.
Immunity from criminal jurisdiction is absolute and a diplomatic
agent cannot under any circumstances be tried or punished by the
local criminal courts of the receiving state.
This does not mean that he must have a right to do what he likes.
In fact, under Art. 41, he is under an obligation to respect the laws of
the receiving state.
Moreover, although exempt from the jurisdiction of the receiving
state, a diplomat remains subject to the jurisdiction of its own state.
Art. 31 (4): The immunity of a diplomatic agent from the
jurisdiction of the receiving state does not exempt him from the
jurisdiction of the sending state.
In Dickinson v Del Solar [1930] 1 KB 376, it was held that diplomatic
privilege does not import immunity from legal liability, but only
exemption from local jurisdiction.
Immunity fron civil and administrative jurisdiction

26

 In respect of civil and administrative jurisdiction, diplomatic agents

cannot enjoy absolute immunity.
Their immunity is subject to three exceptions mentioned in Article
31 (1) of the Vienna Convention.
A diplomatic agent . shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in

the territory of the receiving state, unless he holds it on behalf of
the sending state for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is
involved as a private person and not on behalf of the sending
state;
(c) an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside
his official functions.
Waiver of immunity
It is an established practice that the immunity from jurisdiction of
diplomatic agents may be waived by the sending state:Article 32(1).
Waiver must always be express: Art. 32 (2).
The initiation of proceedings by a diplomatic agent shall preclude
him from invoking immunity from jurisdiction in respect of any
counter-claim directly connected with the principal claim: Art. 32
(3).
2. 4 Persons entitled to diplomatic immunity
Immunities in respect of persons are provided in Articles 29 to 36 of
the Vienna Convention. In all of these articles, the beneficiary of
the immunities is mentioned as a diplomatic agent. It means that
diplomatic agents are entitled to all these immunities. Then who is
a diplomatic agent?
According to the Vienna Convention, a diplomatic agent is the
head of the mission or a member of the diplomatic staff of the
mission: Art. 1(e).
The members of the diplomatic staff are the members of the staff
of the mission having diplomatic rank: Art. 1(d).
The term diplomatic agent, therefore, includes the head of the
mission (the Ambassador, the Envoy or Minister, or the Charg`e d
Affaires, as the case may be), and the staff of the mission having
diplomatic rank: the Counsellors, the Secretaries (the First, the
Second and the Third Secretaries), and the Attach`e officers
(Military Attach`e, Cultural Attach`e, etc.).
The extent of the privileges and immunities enjoyed by the other
personnel of a diplomatic mission varies according to the category
to which the person belongs.
Article 37:
1. The members of the family of a diplomatic agent forming part of
his household shall, if they are not nationals of the receiving
state, enjoy the privileges and immunities specified in Arts. 29 to
36.
2. Members of the administrative and technical staff of the mission
(together with families), shall, if they are not nationals of or
permanent resident in the receiving state, enjoy the privileges
and immunities specified in Arts. 29 to 35, except that the
immunity from civil and adm. jurisdiction of the receiving state
shall not extend to acts performed outside the course of their
duties.
3. Members of the service staff of the mission who are not nationals
of or permanent resident in the receiving state shall enjoy
immunity in respect of acts performed in the course of their
duties, (and) exemption from dues and taxes on the emoluments
they receive by reason of their employment
4. Private servants of members of the mission shall, if they are not
nationals of or permanent resident in the receiving state, be
exempt from dues and taxes on the emoluments they receive by
reason of their employment.
Empson v Smith
[1966] 1 QB 426. Court of Appeal
The defendant was an administrative officer with the Canadian
High Commission. The plaintiff sued for breach of a tenancy
agreement and the defendant claimed diplomatic immunity.

The Court of Appeal held that he was not entitled to immunity

because as a member of the administrative and technical staff of the
mission his immunity from civil jurisdiction does not extend to acts
performed outside the course of his official duties.
Meaning of family
In Engelke v Musmann [1928] AC 433, Lord Phillimore, obiter dicta,
defined an ambassadors family for the purposes of immunity as his
wife and his children if living with him.
In Re C (An Infant) [1959] 1 Ch. 363, Harman J, considering whether
the son of a person entitled to immunity was himself entitled to it,
ruled that the test was whether he is ordinarily resident with, or is
under his fathers control.
British Foreign Office practice is to treat a diplomats family as
including the spouse and minor children [under 18] and certain
other persons in exceptional circumstances.
In practice, the exceptional cases include: the child of a diplomat
living with him who has attained majority but is not engaged in
paid employment on a permanent basis. Students are included in
this category provided that they reside with the diplomat at least
during vacations
Immunity of a diplomatic staff who is a national of the receiving
State
If a member of the staff of the mission is a national of or permanent
resident in the receiving State, he is entitled to less privileges and
immunities.
Article 38 of the Vienna Convention provides:
Article 38
1. a diplomatic agent who is a national of or permanent resident in
that State shall enjoy only immunity from jurisdiction, and
inviolability, in respect of official acts performed in the exercise
of his functions.
2. Other members of the staff of the mission and private servants
who are nationals of or permanent resident in the receiving State
shall enjoy privileges and immunities only to the extent admitted
by the receiving State.
2. 5 Duration of immunity
Article 39(2):
When the functions of a person enjoying privileges and
immunities have come to an end, such privileges and immunities
shall normally cease at the moment when he leaves the country, or
on expiry of a reasonable period in which to do so, but shall subsist
until that time, even in case of armed conflict. However, with
respect to acts performed by such a person in the exercise of his
functions as a member of the mission, immunity shall continue to
subsist.
Immunity from official acts (Ratione Materiae)
In respect of private acts the immunity is contingent and
supplementary and it ceases when the individual concerned leaves
his post.
In the case of official acts the immunity is permanent, since that is
that of the sending State.
The definition of official acts is by no means self-evident. The
conception presumably extends to matters which are essentially in
the course of official duties.
2. 6 The Malaysian Practice
In Malaysia, Diplomatic and Consular Privileges Ordinance, 1957
was the old statute as far as immunity was concerned.
However, Part II [in respect of diplomats] of the 1957 Ordinance was
repealed by the Diplomatic Privileges (Vienna Convention) Act,
1966 and Part III [in respect of International Organizations] was
repealed by the International Organisations (Privileges and
Immunities) Act, 1992.
Again, Part IV (in respect of consular relations) was deleted by
Consular Relations (Vienna Convention) Act 1999, which came into
operation on 1 November 1991.
Finally, the Diplomatic Privileges (Vienna Convention)
(Amendment) Act 1999, section 5, repealed the Diplomatic and

27

Consular Privileges Ordinance, 1957, as the three statutes now have

covered the entire the subject matter of the Ordinance.
The Diplomatic Privileges (Vienna Convention) Act, 1966 (as
amended by the 1999 Act)
The Parliament of Malaysia passed the Diplomatic Privileges
(Vienna Convention) Act, 1966 to give effect to the Vienna
Convention, 1961.
The provisions of the Vienna Convention which shall have force of
law in the Federation are attached to the Act.
Two important leading cases in Malaysia:
The first is Public Prosecutor v Orhan Olmez, 1988] 1 MLJ 13. It was
held that the waiver of immunity must always be express.
The second is Village Holdings Sdn. Bhd. v Her Majesty the Queen
in Right Of Canada [1988] 2 MLJ 656, which touched upon Article 31
of the Vienna Convention, especially immunity from civil
jurisdiction and the exceptional case of a real action relating to
private immovable property. As the property was meant for the
embassy, it was not private property and was subject to immunity.

3 IMMUNITY OF INTERNATIONAL
ORGANIZATIONS
As international organisations are vested by States with important
functions, they require privileges and immunities for the effective
exercise of their functions.
There is a major difference between diplomatic immunity and
immunity of IOs.
The diplomat who is immune from the jurisdiction of the receiving
state is under the jurisdiction of his own State whereas no such
jurisdiction exists in case of the immunity of IOs.
The UN is the most important international organization of the
present day and any study on immunity of international
organizations should start with the privileges and immunity of the
UN.
First, Article 104 of the Charter provides that: The Organisation
shall enjoy in the territory of each of its Members such legal
capacity as may be necessary for the exercise of its functions and
the fulfilment of its purposes.
Again, according to Article 105 of the Charter:
Article 105
1. The Organisation shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary for the
fulfilment of its purposes.
2. Representatives of the Members of the UN and officials of the
Organisation shall similarly enjoy such privileges and immunities
as are necessary for the independent exercise of their functions.
3. The GA may make recommendations with a view to determining
the details of the application of this Article or may propose
conventions to the Members of the UN for this purpose.
3. 1 Convention on the Privileges and Immunities of the United
Nations, 1946
By virtue of Article 105(3) of the Charter, the General Assembly
adopted the Convention on the Privileges and Immunities of the
United Nations, 1946 and the Convention on the Privileges and
Immunities of the Specialised Agencies, 1947.
According to the former, the United Nations Organisation has
complete immunity from all legal process.
Its premises, assets, archives, and documents are inviolable.
The Secretary-General and the Assistant Secretaries-General of the
United Nations can enjoy the same privileges and immunities as the
head of a diplomatic mission does.
Other officials of the United Nations have only limited immunities,
such as immunity from legal process in respect of their official acts.
In respect of experts performing missions for the United Nations,
Section 22 of the Convention provides that:
Experts performing missions for the United Nations shall
immune from legal process of every kind, in respect of words
spoken or written and acts done by them in the course of the
performance of their mission.

These conventions are of a multilateral character. It is also

necessary to conclude a special treaty with the host State in whose
territory the headquarters of the organisation is situated.
The Headquarters Agreements between the UN and the US, and
the UN and Switzerland are good examples.
Clearly these agreements impose legal obligations on States under
international law. It is, however, necessary for States to implement
these obligations by passing municipal laws.
3. 2 The Malaysian Practice
As for Malaysia, the Parliament enacted the International
Organisations (Privileges and Immunities) act, 1992 in order to
allow privileges and immunities to certain international
organisations and to persons connected therewith.
The Second Schedule to the Act deals with privileges and
immunities of high officers of IOs and provides that they are
entitled to the like privileges and immunities as are accorded to a
head of diplomatic mission.
According to the Fourth Schedule, officers other than high officers
enjoy immunity from suit and from other legal process in respect
of acts and things done in his capacity as such an officer.
Again under the Fifth Schedule, persons serving on committee or
participating in work of, or performing mission on behalf of an
international organization enjoy:
1. Immunity from personal arrest or detention.
2. Immunity from suit and from other legal process in respect of
acts and things done in serving on the committee, participating
in the work or performing the mission.
There is a landmark case involving a Malaysian, who was serving as
a special rapporteur of the Commission on Human Rights.
Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights
(1999) ICJ Rep. 62
The Commission on Human Rights appointed Dato Param
Cumaraswamy, a Malaysian jurist, as the Commissions Special
Rapporteur on the Independence of Judges and Lawyers.
An article was published on the basis of an interview which the
Special Rapporteur gave to a magazine (International Commercial
Litigation).
Two companies in Malaysia asserted that the said article contained
defamatory words. Each company filed a suit against him for
damages amounting to RM 30 million each.
Acting on behalf of the Secretary-General, the Legal Counsel of the
UN considered the circumstances of the interview and of the
passages of the article and determined that Cumaraswamy was
interviewed in his official capacity as Special Rapporteur on the
Independence of Judges and Lawyers.
The Legal Counsel accordingly requested the competent Malaysian
authorities to advise the Malaysian courts of the Special
Rapporteurs immunity from legal process.
The Secretary-General also issued a note confirming this. The
Special Rapporteur filed this note in support of his application in
the High Court of Kuala Lumpur to set aside the plaintiffs writ.
However, the HC of Malaysia dismissed the immunity plea of
Cumaraswamy. The CA confirmed it.
Finally, the Federal Court denied Cumaraswamys application for
leave to appeal stating that he was neither a sovereign nor a fullfledged diplomat.
After the failure of out of court endeavours to settle the differences,
the Government of Malaysia and the SG of the UN agreed to submit
the matter to the ICJ under Section 30 of the Convention on the
Privileges and Immunities of the United Nations, 1946 (to which
Malaysia is a party).
Advisory opinion of the ICJ
The Secretary-General of the UN, as the chief administrative officer
of the Organization plays a pivotal role in determining whether a
particular expert on mission is entitled to the immunity provided
for in Section 22 (b).
In the present case, the SG has found that Mr. Cumaraswamy had
spoken the words in his capacity as Special Rapporteur of the

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Commission and that he consequently was entitled to immunity

from "every kind" of legal process.
The Court observed that that finding creates a presumption of
immunity which can only be set aside for the most compelling
reasons and is thus to be given the greatest weight by national
courts.
The Court concludes that as the Government of Malaysia did not
transmit the SG 's finding to the competent courts, and the Minister
for Foreign Affairs did not refer to it in his own certificate, Malaysia
failed to comply with its obligation under the Convention.
According to s. 30 of the Convention, the opinion given by the
Court shall be accepted as decisive by the parties to the dispute.
Malaysia is obligated to communicate this advisory opinion to the
competent Malaysian courts, in order that Mr. Cumaraswamy's
immunity be respected.

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