Tutorial Week 5: The Relationship between International Law and National Law

Question 1:
Discuss in detail the reception of international law in Malaysia from all perspectives.

Federal Constitution is entirely silent on reception of Int. law. (Perhaps it was not crucial at the
time it was made) Before independence, Malaysia follow UK with doctrine of incorporation
with limitation of the statutes for customary int. law, and doctrine of transformation for treaties.

-After independence:
 Treaties
Even though the Fed. Cons. Lack reference of int. law, some provisions dealing with treaty
making has been implemented:
a) Legislative has power to make law to implement treaty even it is the subject matter of state
list (Art. 74(1) FC & Art. 76(1) FC)
b) Executive has power in treaty-making (Kelantan v Federation of Malaya)
c) Practices doctrine of transformation, whereas if no enabling acts, treaty will has no power in
Malaysia. For instance, Geneva Convention Act to give power to Geneva Conventions on
protection of victims of armed conflicts
 Customary international law
-pre-independence, follow doctrine of incorporation. Follow British & not Malaysian judges.
Sockalingan Chettiar v Chan Moi: follow int. law from “Hague Regulations” to decide
validity of letters of administration granted during by Japanese during their occupation.
-post-independence, it has been indirectly applied by courts in Malaysia. Section 3 of CLA
only allows practice of common law in absence of any written law or when necessary. We
follow British approached of doctrine of incorporation, on which the customary int. law has
already been incorporated in it. Village Holdings Sdn Bhd v Her Majesty the Queen in Right
of Canada: as to section 3 CLA, Malaysia adhere to common law practice of absolute doctrine
for state immunity. Commonwealth of Australia v Midford Sdn Bhd: Malaysia uses
restrictive theory for state immunity which is a modern doctrine in international law, saying
that s.3 does not disallow common law to develop. No specific court stated that the theories are
followed due to customary international law practice.
-non-recognition of doctrine of incorporation by mainstream judges after independence. PP v
Narogne: respondents (Thai fisherman) trespassed Malaysian coast, claiming that it is innocent
passage under Geneva Convention of Territorial Sea. Court held: it is not innocent passage
according to Malaysia law.
-It is in best interest for Malaysia to follow Customary Int. Law, along with other states. In case
where customary international law is legally binding to Malaysia, Malaysia will be responsible.
Insas Bhd v Param Cumaraswamy: even if the court disagree with the decision of ICJ, the
court is bound to give legal effect to the advisory opinion.
-If conflict between statutes and customary int. law, statute shall prevail. PP v Wah Ah Jee:
law to be taken as has been expressed. It is not duty of a judge to consider whether it is in
compliance with int. law.

Question 2:
Discuss the practice of civil law countries in accepting the International Law

-generally, they practiced monist theory.

1) Constitutions with explicit incorporation of customary int. law:
-Germany: Art 25 Basic Law of Germany- int. law to be integral part of federal law.
-Greece: Art 28(1) Greek Constitution- accepted int. law and int. conventions. Integral and
shall prevail in any conflict with federal law.
-Italy- Art. 10 of Constitution of Italy- recognised principles of int. law
2) Constitutions with explicit incur

poration of treaties
- France: Art 53 of French Constitution, treaties that impose financial burden or modification
of federal law will need to be ratify by act of parliament. Art 55: ratifies, prevails over acts of
parliament.
3) Constitutions with Explicit Corporation of both:
-Russian Federation: Article 15.4 of Constitution of Russian Federation

Question 3:
Discuss the practice of common law countries in accepting the IL

-Countries that practices common law are mostly countries that fell under the UK colonial
system.
-Primarily, dualist because they do not accept Int. law to be automatically practiced as their
national law. However, they do accept customary int. law as long as it does not contrary to their
law.

 Customary international law

-For the UK, there are many views. First approach is the “doctrine of transformation” approach,
whereas int. law needs to be transformed for it to work as national law. However, jurist
Blackburn accepted the “doctrine of incorporation”, whereas int. law can be automatically
incorporated as national law.
-UK still apply ‘doctrine of corporation’ for customary international law. As in Trendtex
Trading Corp v Central Bank of Nigeria, Lord Denning held that doctrine of corporation is
correct.
-However, if there is inconsistency between customary int. law & act of parliament, act of
parliament will prevail. As in case of Mortensen v Peters, whereas it was held that Act of
Parliament has passed Lords and Commons and assented by Kings, thus, it is supreme and
binding.
-As between customary int. law & doctrine of judicial precedent, formerly, customary int. law
shall not be inconsistent with the prior judicial decision of final authority. However, in
landmark case Trandtex Trading Corp v Central Bank of Nigeria, the court follows practice
of international law which is to apply restrictive immunity rather than absolute immunity. Thus,
rule of int. law may still be changed even though contrary to precedents.
-Therefore, as for customary int. law, they apply the doctrine of incorporation.

 Treaties
- Treaty, that affects right and obligations or the people or may involve modification to the
national law, does not automatically becomes part of the law without national legislation on it.
Thus, the doctrine of transformation apply for application of international treaties, as treaty is
made by executive, but alteration and application of it is controlled by the parliament (Lord
Atkin in AG for Canada v AG for Antorio)
-International Tin Council case: court rejected claimant’s application to follow the law in
International Tin Agreement that was not incorporated in UK.
-If a treaty has been transform thru enabling act (example Diplomatic Privileges Act enacts
Vienna Convention on Diplomatic Relations), it will have full legal effect. However, if not
incorporated, court may still use it to resolve ambiguity for interpretation purposes.

 Judicial notice of international law

-the rule of int. law practiced does not necessarily be proven as a fact in court, but normally
court takes judicial notice.

 The role of executive certificates

-In certain circumstances, such as claiming for status of state claiming state immunity, a
certificate signed by foreign secretary is accepted as being conclusive.

 Other common law countries

-Customary int. law is part of the domestic in Canada. However, a statute will prevails in
conflicts.
-Customary int. law practiced in Australia, as long as it is consistent. If conflict, statute prevails.
Practiced doctrine of transformation. However in latest case Minister of State for Immigration
and Ethnic Affairs v Teoh, court held that ratification of int. law is sufficient to make it
applicable in the state.
-In NZ, practiced doctrine of transformation. However, the common law rule is to not make
national law as abrogating int. law. Later, in Hosking & Hosking v Runting, court applied
that practice of doctrine of transformation is too rigid.
-In US, it practices doctrine of corporation for customary int. law, but with cautious as it will
affect their constitution. As in Committee of US Citizens in Nicaragua v Reagan, no national
statutes may be challenged on ground of violation of int. law. As in treaties, self-executing
treaties may execute by itself, whereas, non-self-executing treaties need legislation to give
effect. In analysis, US have ignored int. law greatly, as in US v Alvarez Machain, where
forcible abduction of Mexican national happens, which contrary to bilateral extradition treaty
and customary int. law.

Question 4:
Discuss monist and dualist theories

Doctrinal debate: ‘monism’ and ‘dualism’

MONIST DUALIST
Int. law & national law as single legal order Int. law & national law as 2 separate legal
systems, independent from each other
Int. law is automatically part of the legal Int. law needs to be transformed into as
system national legislation for it to have effect as
national law
Between Int. law & national law, Between Int. law & national law, each
international law prevails system applies its own law, whereas int.
court use int. law & national court use
national law
Int. law & national law is one, to settle both Int. law covers issues between states,
issues between states or within states national law covers issues within state