CHAP 3: THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL

LAW

3.1) National Law Before International Courts And Tribunals

 National Law as ‘Sources’ of International Law:

o Certain national law concepts and the decisions of national courts may be used as
sources of international law by virtue of Art 38(1)(c) (as general principles of law)
and Art 38(1)(d) of the Statute of the International Court of Justice.
o Barcelona Traction, Light and Power Co Ltd case
 The court after recognising “corporate entity” as an institution created by States
and admitting that there were no corresponding institutions of international law
to which the court would resort, decided to invoke the company generally
accepted by national legal systems.
 In Case of Conflict, International Law Prevails:
o A State cannot plead its national law as an excuse for violating international law.
o According to The Vienna Convention on the Law of Treaties, 1969:
 A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty.
o LaGrand Case:
 Germany then modified its complaint in the case before the ICJ, alleging
furthermore that the U.S. violated international law by failing to implement the
provisional measures. In opposition to the German submissions, the United
States argued that the Vienna Convention did not grant rights to individuals, only
to states; that the convention was meant to be exercised subject to the laws of
each state party, which in the case of the United States meant subject to the
doctrine of procedural default and that Germany was seeking to turn the ICJ into
an international court of criminal appeal.
 The court found that the United States violated the Vienna Convention through
its application of procedural default. The court was at pains to point out that it
was not passing judgment on the doctrine itself, but only its application to cases
involving the Vienna Convention.
3.2) Theories: Monism and Dualism

 The relationship between international and national law is often presented as a clash at a
level of high theory, usually between ‘dualism’ and ‘monism’.
 In case of a conflict between international law and national law, the dualist would assume
that a national court would apply national law, or at least that it is for the national system
to decide which rule is to prevail.
 Monism: Monism postulates that national and international law form one single legal
order, or at least a number of interlocking orders which should be presumed to be
coherent and consistent. On that basis international law can be applied directly within the
national legal order. This position is represented by jurists whose views diverge in
significant respects.
 Hersch Lauterpacht was a forceful exponent of a version of monism, he emphasized that
individuals are the ultimate subjects of international law, representing both the
justification and moral limit of the legal order. The state is disliked as an abstraction and
distrusted as a vehicle for maintaining human rights.
 International law is seen as the best available moderator of human affairs, and also as a
condition of the legal existence of states and therefore of the national legal systems.
 Hans Kelsen developed monist principles on the basis of formal methods of analysis
dependent on a theory of knowledge. According to Kelsen, monism is scientifically
established if international and national law are part of the same system of norms
receiving their validity and content by an intellectual operation involving the assumption
of a single basic norm (Grundnorm).
 Dualism: Dualists emphasize the difference between national and international law, and
require the translation of the latter into the former. Without this translation, international
law does not exist as law. International law has to be national law as well, or it is no law
at all. If a state accepts a treaty but does not adapt its national law in order to conform to
the treaty or does not create a national law explicitly incorporating the treaty, then it
violates international law.
 But one cannot claim that the treaty has become part of national law. Citizens cannot rely
on it and judges cannot apply it. National laws that contradict it remain in force.
According to dualists, national judges never apply international law, only international
law that has been translated into national law.
 According to the dualist view the systems of International Law and National Law are
separate and self-contained to the extent to which rules of the one are not expressly or
tacitly received into the other system.

3.3) The application of International Law in the National Legal System

 The practice of common law countries

o The common law system was originated in the United Kingdom, usually dubbed as
the mother of common law countries. Countries which fell under the colonial rule of
the UK normally follow the common law system.
 The British Practice
o It is part of the public policy of the UK that the courts should in principle give effect
to clearly established rules of international law. Various theories have been put
forward to explain the applicability of international law rules within the jurisdiction.
One expression of the positivist–dualist position has been the doctrine of
transformation. This is based upon the perception of two quite distinct systems of
law, operating separately, and maintains that before any rule or principle of
international law can have any effect within the domestic jurisdiction, it must be
expressly and specifically ‘transformed’ into municipal law by the use of the
appropriate constitutional machinery, such as an Act of Parliament. This doctrine
grew from the procedure whereby international agreements are rendered operative in
municipal law by the device of ratification by the sovereign and the idea has
developed from this that any rule of international law must be transformed, or
specifically adopted, to be valid within the internal legal order.
o Another approach, known as the doctrine of incorporation, holds that international
law is part of the municipal law automatically without the necessity for the
interposition of a constitutional ratification procedure.
o The best-known exponent of this theory is the eighteenth-century lawyer Blackstone,
who declared in his Commentaries that:
“the law of nations, wherever any question arises which is properly the object of
its jurisdiction, is here adopted in its full extent by the common law, and it is held
to be a part of the law of the land.”
 Application of Customary International Law
o It is in this sphere that the doctrine of incorporation has become the main British
approach. It is an old-established theory dating back to the eighteenth century, owing
 its prominence at that stage to the considerable discussion then taking place as to the
precise extent of diplomatic immunity. A few of the more important cases will be
briefly surveyed.
o In Buvot v. Barbuit, Lord Talbot declared unambiguously that ‘the law of nations in
its full extent was part of the law of England’, so that a Prussian commercial agent
could not be rendered liable for failing to perform a decree.
o According to Trendtex Trading Corp v Central Bank of Nigeria: This acceptance of
customary international law rules as part and parcel of the common law of England,
so vigorously stated in a series of eighteenth-century cases, was subject to the priority
granted to Acts of Parliament and tempered by the principle of stare decisis or
precedent, maintained by the British courts and ensuring that the judgments of the
higher courts are binding upon the lower courts of the hierarchical system.
Accordingly, a rule of international law would not be implemented if it ran counter to
a statute or decision by a higher court.
 Customary International law versus an Act of Parliament
o In Mortensen v. Peters, a Danish captain was convicted by a Scottish court for
contravening a fishing by-law regarding the Moray Firth. His ship had been operating
within the Moray Firth and was within the area covered by the relevant by-law, but it
was beyond the three-mile limit recognised by international law. The issue came to
the Scottish Court of Justiciary, where Lord Dunedin, in discussing the captain’s
appeal, concentrated upon the correct construction to be made of the relevant
legislation. He noted that an Act of Parliament duly passed and assented to was
supreme and the Court had no option but to give effect to its provisions.
o In other words, statutes had predominance over customary law, and a British court
would have to heed the terms of an Act of Parliament even if it involved the
breach of a rule of international law. This is so even though there is a presumption
in British law that the legislation is to be so construed as to avoid a conflict with
international law. Where such a conflict does occur, the statute has priority and the
state itself will have to deal with the problem of the breach of a customary rule.
 Customary International law v Doctrine of Judicial Precedent
o The case of Trendtex Trading Corporation v. Central Bank of Nigeria raised a new
many of these issues. The case concerned a claim for sovereign or state immunity by
the Central Bank of Nigeria. In Trendtex all three judges of the Court of Appeal
 accepted the incorporation doctrine as the correct one. Lord Denning, reversing his
opinion in an earlier case, stressed that otherwise the courts could not recognise
changes in the norms of international law. Stephenson LJ emphasised in an important
statement that:
“it is the nature of international law and the specific problems of ascertaining it
which create the difficulty in the way of adopting or incorporating or recognising
as already incorporated a new rule of international law.”
o It had previously been accepted that the doctrine of stare decisis would apply in cases
involving customary international law principles as in all other cases before the
courts, irrespective of any changes in the meantime in such law.
o This approach was reaffirmed in Thai-Europe Tapioca Service Ltd v. Government
of Pakistan. However, in Trendtex, Lord Denning and Shaw LJ emphasised that
international law did not know a rule of stare decisis. Where international law had
changed, the court could implement that change ‘without waiting for the House of
Lords to do it.
 Application of Treaties
o As far as treaties are concerned, different rules apply as to their application within the
domestic jurisdiction for very good historical and political reasons. While customary
law develops through the evolution of state practice, international conventions are in
the form of contracts binding upon the signatories.
o Therefore, in normal circumstances the influence of one particular state is not usually
decisive. In the case of treaties, the states involved may create new law that would be
binding upon them irrespective of previous practice or contemporary practice.
o In other words, the influence of the executive is generally of greater impact where
treaty law is concerned than is the case with customary law and this is particularly so
where, as in the UK, ratification of treaties is an executive act.
o AG for Canada v AG for Ontario
 Lord Atkin held:
"The obligations [arising from the conventions] are not obligations of Canada
as part of the British Empire, but of Canada, by virtue of her new status as an
international person, and do not arise under a treaty between the British
Empire and foreign countries."
 The Practice of Other Common Law Countries (US)
o As far as the American position on the relationship between municipal law and
customary international law is concerned, it appears to be very similar to British
practice, apart from the need to take the Constitution into account. The US Supreme
Court in Boos v. Barry emphasised that, ‘As a general proposition, it is of course
correct that the United States has a vital national interest in complying with
international law.’ However, the rules of international law were subject to the
Constitution.
o An early acceptance of the incorporation doctrine was later modified as in the UK. It
was stated in the Paquete Habana case that
“international law is part of our law and must be ascertained and administered by
the courts of justice of appropriate jurisdiction as often as questions of right
depending upon it are duly presented for their determination.”
o US courts are bound by the doctrine of precedent and the necessity to proceed
according to previously decided cases, and they too must apply statute as against any
rules of customary international law that do not accord with it.
o The Court of Appeals reaffirmed this position in the Committee of United States
Citizens Living in Nicaragua v. Reagan case, where it was noted that ‘no enactment
of Congress can be challenged on the ground that it violates customary international
law’.
o Canada:
o The Canadian Supreme Court in the Reference Re Secession of Quebec judgment
noted that it had been necessary for the Court in a number of cases to look to
international law to determine the rights or obligations of some actor within the
Canadian legal system.
o As far as treaties are concerned, Lord Atkin expressed the general position in
Attorney-General for Canada v. Attorney-General for Ontario, in a case dealing
with the respective legislative competences of the Dominion Parliament and the
provincial legislatures. He noted that within the then British Empire it was well
enshrined that the making of a treaty was an executive act, while the performance of
its obligations, if they involved alteration of the existing domestic law, required
legislative action. ‘The question’, remarked Lord Atkin:
 “is not how is the obligation formed, that is the function of the executive, but how
is the obligation to be performed, and that depends upon the authority of the
competent legislature or legislatures”.

o New Zealand and Australia:

o In Horgan v An Taoiseach, it was affirmed that ‘established principles of customary
international law may be incorporated into Irish domestic law providing that they are
not contrary to the provisions of the Constitution, statute law or common law’.
o The relationship between treaties and domestic law was examined by the High Court
of Australia in Minister of State for Immigration and Ethnic Affairs v. Teoh. The
Court upheld the traditional doctrine to the effect that the provisions of an
international treaty to which Australia is a party do not form part of Australian law,
and do not give rise to rights, unless those provisions have been validly incorporated
into municipal law by statute. It was noted that this was because of the constitutional
separation of functions whereby the executive made and ratified treaties, while the
legislature made and altered laws.
o There are further signs of an increasingly flexible approach. For example, in
Hosking & Hosking v. Runting and Pacific Magazines NZ Ltd, the New Zealand
Court of Appeal referred to the ‘increasing recognition of the need to develop the
common law consistently with international treaties to which New Zealand is a party.
 The Practice of Civil Law Countries
o Germany: The Basic Law of the Federal Republic of Germany, for example,
specifically states in Article 25 of the Basic Law (Constitution) of Germany, that
‘the general rules of public international law are an integral part of federal law. They
shall take precedence over the laws and shall directly create rights and duties for the
inhabitants of the federal territory.
o This provision, which not only treats international law as part of municipal law but
regards it as superior to municipal legislation, has been the subject of a great deal of
controversy as writers and lawyers have tried to establish whether international legal
rules would invalidate any inconsistent municipal legislation and, indeed, whether
international rules could override the constitution.
o Netherlands: Article 91(1) of the Netherlands Constitution 1983 requires the prior
approval of Parliament before treaties, or their denunciation, become binding, while
article 91(3) provides that any provisions of a treaty that conflict with the
Constitution or which lead to conflicts with it may be approved by the Chambers of
the Parliament, provided that at least two thirds of the votes cast are in favour.
Article 93 states that provisions of treaties and of decisions by international
organisations which may be binding by virtue of their contents are to become binding
after they have been published, while article 94 provides that statutory regulations in
force within the kingdom shall not be applicable if such application is in conflict with
provisions of treaties that are binding on all persons or with resolutions by
international institutions.
o Italy: Article 10 of the Italian Constitution of 1947 stipulates that the Italian legal
order ‘shall conform with the generally recognised rules of international law’. This is
interpreted to indicate that international customary law will override inconsistent
ordinary national legislation.
o Portugal: Article 8(1) of the Portuguese Constitution provides that the rules and
principles of general or customary international law are an integral part of Portuguese
law.
o France: The French Constitution of 1958 declares that treaties duly ratified and
published shall operate as laws within the domestic system. However, the
Constitution provides that, although in principle it is the President of the Republic
who negotiates and ratifies treaties, with regard to important treaties such as
commercial treaties which entail some form of financial outlay, treaties relating to
international organisations, treaties modifying legislation and treaties affecting
personal status, ratification takes place by Act of Parliament.
o Article 55 of the Constitution provides that duly ratified or approved treaties or
agreements shall upon publication override domestic laws, subject only to the
application of the treaty or agreement by the other party or parties to the treaty.
o South Africa: In 1993, South Africa adopted a new (interim) constitution.237
Whereas the previous constitutions of 1910, 1961 and 1983 had been silent on the
question of international law, the 1993 Constitution contained several relevant
provisions. Section 231(4) states that ‘the rules of customary international law
binding on the Republic, shall, unless inconsistent with this Constitution or an Act of
 Parliament, form part of the law of the Republic’. This formulation confirms
essentially the common law position and would also suggest that the principle of
stare decisis is not applicable to customary international law. As far as treaties are
concerned, the previous position whereby an Act of Parliament was required in order
to incorporate an international agreement has been modified. While the negotiation
and signature of treaties is a function of the President (section 82(1)i), ratification is
now a function of the Parliament (section 231(2)).
o Russia: The Russian Federation adopted a new constitution in 1993. Under article
86, the President negotiates and signs treaties and signs the ratification documents,
while under article 106 the Federal Council (the upper chamber of the federal
parliament) must consider those federal laws adopted by the State Duma (the lower
chamber) that concern the ratification and denunciation of international agreements.
The Constitutional Court may review the constitutionality of treaties not yet in force
(article 125(2)) and treaties that conflict with the Constitution are not to be given
effect (article 125(6)).
o Japan: Under article 73(3) of the Japanese Constitution of 1946, the Cabinet has
authority to conclude treaties with the prior or subsequent approval of the Diet,
although executive agreements may be entered into without such approval, usually by
simple exchange of notes. Promulgation of a treaty takes place by publication in the
Official Gazette under the name of the Emperor once the Diet has approved and the
Cabinet ratified the agreement (article 7). Article 98(2) provides that ‘treaties
concluded by Japan and established laws of nations shall be faithfully observed’ and
this provision is taken as incorporating international law, both relevant treaty and
customary law, into Japan’s legal system.
 European Community Law
o It is pertinent to refer here briefly to the impact of the European Union. The
European Court of Justice has held that Community law has supremacy over
ordinary national law, and indeed over domestic constitutional law. In addition to the
treaties creating the EC, there is a great deal of secondary legislation issuing forth
from its institutions, which can apply to the member states. This takes the form of
regulations, decisions or directives.
o Of these, the first two are directly applicable and enforceable within each of the
countries concerned without the need for enabling legislation. While it is true that the
 legislation for this type of activity has been passed – for example section 2(1) of the
European Communities Act 1972 in the UK, which permits in advance this form of
indirect law-making, and is thus assimilated intomunicipal law – the fact remains that
the member states have accepted an extraterritorial source of law, binding in certain
circumstances upon them.
o The effect is thus that directly effective Community law has precedence over
inconsistent UK legislation. This was confirmed by the House of Lords in
Factortame Ltd v. Secretary of State for Transport. It was further noted that one of
the consequences of UK entry into the European Communities and the European
Communities Act 1972 was that an interim injunction could be granted, the effect of
which would be to suspend the operation of a statute on the grounds that the
legislation in question allegedly infringed Community law.
o This is one illustration of the major effect which joining the Community has had in
terms of the English legal system and previously accepted legal principles. The
mistake, however, should not be made of generalising from this specific relationship
to the sphere of international law as a whole.
 The Reception of International Law in Malaysia
o APPLICATION OF INTERNATIONAL TREATIES
- The Federal Constitution of Malaysia, unlike the constitutions of some other
States, does not contain any provision which says that international law shall be
deemed part of the law of the land or that treaties shall be the laws of Malaysia.
Nevertheless, certain provisions of the Constitution deal with ‘treaty-making
capacity’ in Malaysia.
- According to Article 74(1) of the Federal Constitution, “Parliament may make
laws with respect to any of the matters enumerated in the ‘Federal List’ or the
‘Concurrent List’”. The ‘Federal List’ in the Ninth Schedule includes:
1. External Affairs, including –
(a) Treaties, agreements and conventions with other countries and all matters
which bring the Federation into relations with other countries.
(b) Implementation of treaties, agreements and conventions with other
countries.
- We can conclude from the wordings of Articles 74, read together with the
Federal List, that the Federal Parliament has the exclusive power to make laws
 relating to external affairs (including treaties, agreements and conventions) and
that it has the power to implement international treaties and make them operative
domestically.
- In respect of the power of the Executive, Article 39 provides that: The executive
authority of the Federation shall be vested in the Yang di-Pertuan Agong and
exercisable…by him or by the Cabinet or any Minister authorised by the
Cabinet.
- Again under Article 80(1), the executive authority of the Federation extends to
all matters with respect to which Parliament may make laws.
- By virtue of the ‘Federal List’, matters with respective to which Parliament may
make laws include “external affairs” which in turn include “treaties, agreements
and conventions with other countries”.
- Therefore, the executive authority of the Federation extends to the making or
conclusion of treaties, agreements and conventions with other countries. The
conclusion then is that in Malaysia the treaty-making power is vested in the
executive authority of the Federation or the Federal Government.
- This has been reaffirmed by the case of the Government of the State of
Kelantan v the Government of the Federation of Malaya and Tunku Abdul
Rahman Putra Al-Haj. In this case, Kelantan challenged the constitutionality of
the Malaysia Agreement, which was an international treaty signed by the United
Kingdom, the Federation of Malaya, Singapore, Sabah and Sarawak. The main
argument made by the Kelantan Government was that the consent of the
individual States of the Federation of Malaya should have been obtained before
the arrangements for Malaysia can be lawfully implemented. Referring to
Articles 39 and 80 (1) of the Federal Constitution, the Court affirms the
constitutionality of the Malaysia Agreement as follows:
“The Malaysia Agreement is signed ‘for the Federation of Malaya’ by the
Prime Minister, the Deputy Prime Minister 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.”
- An analysis of the constitutional provisions indicates that in Malaysia, like in the
United Kingdom, the 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
 there are treaties that can be implemented locally without any necessity for the
introduction of a statute. Nevertheless, treaties that affect the rights of private
persons or involve changes in municipal law definitely require legislation.
- The conclusion then is that as far as treaties are concerned, the Malaysian
practice is based on the ‘doctrine of transformation’. Even though the
Government (Executive) has ratified a treaty and the treaty binds the
Government under international law, it has no legal effect domestically unless
the Legislature passes a law to give legal effect to that treaty. The following are a
few examples of statutes made by Parliament to give legal effect to treaties
concluded by Malaysia:
1) The Geneva Conventions Act, 1962, as revised in 1993, to give legal effect to
the Four Geneva Conventions for the Protection of the Victims of War of
1949.
2) The Diplomatic Privileges (Vienna Convention) Act 1966, as amended in
1999, to give legal effect to the Vienna Convention on Diplomatic Relations
1961.
3) The Carriage by Air Act, 1974, to give legal effect to the Warsaw Convention
of 1929, as amended by the Hague Protocol of 1955 and the Guadalajara
Convention of 1961.
4) The Exclusive Economic Zone Act, 1984, to give legal effect to certain
provisions of the United Nations Convention on the Law of the Sea 1982.
5) The International Organisations (Privileges and Immunities) Act 1992, to give
legal effect to the Convention on the Privileges and Immunities of the United
Nations 1946.
6) The Consular Relations (Privileges and Immunities) Act 1999, to give legal
effect to the Vienna Convention on Consular Relations 1963.
- In Public Prosecutor v Orhan Olmez, the First Secretary to the Embassy of
Turkey gave evidence in the magistrate’s court in Kuala Lumpur. His
attendance was preceded by a diplomatic note from his embassy clearly stating
that he would be present during the hearing of the proceeding ‘in his capacity
as consul’ and ‘solely for the authentication of legal documents’. However, the
Embassy subsequently sent another diplomatic note to the Ministry of Foreign
Affairs to say that the First Secretary would not be attending court any more.
 Counsel for the respondent applied to the court to issue a warrant of arrest to
compel the attendance of the First Secretary.
- The legal question of ‘whether or not the act of sending State allowing the
diplomatic agent to give evidence solely for authentication of the legal
documents constitutes a waiver of immunity from jurisdiction’ was brought
to the Supreme Court of Malaysia. Applying Article 32 of the Vienna
Convention on the Diplomatic Relations 1961, which has been transformed
into Malaysian law by means of the Diplomatic Privileges (Vienna
Convention) Act 1966.
- The Court held that, a waiver under the Vienna Convention must always be
express. The restrictive language in the first diplomatic communication is
clear and it cannot be construed as anything like a waiver of immunity.
- Another example of the application of international treaties by the Malaysian
courts through a statute made by Parliament is the case of Regional Centre
for Arbitration v Ooi Beng Choo & Anor.(No. 2). In this case, the court
referred to a subsidiary legislation known as the Kuala Lumpur Regional
Centre for Arbitration (Privileges and Immunities) Regulations 1996 made
pursuant to Sections 3 and 4 of the International Organisations (Privileges
and Immunities) Act 1992, which was passed by Parliament to implement the
Convention on the Privileges and Immunities of the United Nations, 1946, to
which Malaysia is a party.
- Again in MBF Capital Bhd. & Anor v Dato’ Param Cumaraswamy, the High
Court of Malaya applied the International Organisations (Privileges and
Immunities) Act 1992 in a case involving immunity of a Special Rapporteur of
the UN Human Rights Commission.
o APPLICATION OF CUSTOMARY INTERNATIONAL LAW
- According to section 3 (1) of the Civil Law Act, English common law is to be
applied by the Malaysian courts in the absence of any written law (i.e.
statutes) and provided that it is not contrary to public policy of Malaysia. The
logical consequence is that by virtue of section 3 (1) of the Civil Law Act,
customary international law, as applied in the 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.
- In practice, the courts in Malaysia appear to have applied customary
international law when the occasion arose although the application is not
direct but through the medium of English common law. In other words,
Malaysian courts apply customary international law as part and parcel of
common law.
- For example, the rule of customary international law relating to the immunity
of a sovereign State from judicial process of a foreign country has been
applied in the case of Olofsen v Government of Malaysia where it was held
that as Malaysia had become a sovereign State as from August 9, 1965, the
Court had no jurisdiction to entertain any action or other proceeding against
the Government.
- In PP v Oie Hee Koi, the accused were captured during the Indonesian
confrontation campaign against Malaysia. The Federal Court allowed the
appeals of the accused on the ground that they were prisoners of war and
entitled to the protection of the 1949 Geneva Conventions. On appeal, the
Privy Council held that they were not entitled to be treated as prisoners of
war. Although the main issue was concerned with the interpretation of the
Geneva Conventions of 1949, the Privy Council stated that the position of the
accused was covered prima facie by customary international law.
- However, a somewhat reluctance by a Malaysian court of applying a rule of
customary international law can be found in the decision of PP v Narogne
Sookpavit. In this case, the respondents were Thai fishermen. They were on a
vessel which was then at sea about three miles from the Malaysian coast. They
were arrested and were charged under section 11 (1) of the Fisheries Act
1963. The trial court acquitted all the accused. The prosecutor filed an appeal.
One of the arguments made by the respondents was based on the ‘right of
innocent passage’.
- Referring to Article 14 (which deals with the right of innocent passage) of
the 1958 Geneva Convention on the Territorial Sea, Shanker J stated:“The
customary law to which Article 14 of the Convention on the Territorial Sea
is said to correspond may be the customary law of England or it may be
customary international law. In the Court below me, Defence Counsel 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 case. Section
 13 and 14 of the Evidence Act 1950 require evidence to be given of a custom
before the Court can reach a positive conclusion as to its existence. No such
evidence was led in the Court below.”
- In Village Holdings Sdn, Bhd v Her Majesty the Queen in Right of Canada,
Shankar J. held that: So far as a foreign sovereign is concerned, I hold that
section 3 of our Civil Law Act 1956 leaves no room for any doubt that we in
Malaysia continue to adhere to a pure absolute doctrine of State immunity
when it comes to the question of impleading a foreign sovereign who declines
to submit.
- This case clearly demonstrates the fact that the learned judge relied on English
common law position which was declaratory of customary international law
principle of absolute immunity.
- A fundamental change of the law relating to State immunity has taken place in
Malaysia as a result of a landmark decision of the Supreme Court of Malaysia
in Commonwealth of Australia v Midford (Malaysia) Sdn. Bhd. The main
issue in this case was whether Australia was entitled to immunity in respect of
the seizure of property by its Customs Officers.
- The following is the decision of the Supreme Court, delivered by Gunn Chit
Tuan SCJ: Section 3 of the Civil Law Act only requires any Court in West
Malaysia to apply the common law and the rules of equity as administered in
England on the 7th day 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. It is correct, as pointed out, that the law in England on sovereign
immunity on 7 April 1956, was as declared in cases such as The Parlement
Belge. That is, at that time a foreign sovereign could not be sued in personam
in our courts. But when the judgment in The Philippine Admiral was delivered
by the Privy Council in November 1975, it was binding authority in so far as
our courts are concerned. When the Trendtex case was decided by the United
Kingdom Court of Appeal in 1977 it was of course for us only a persuasive
authority, but we see no reason why our courts ought not to agree with that
decision. That is more so in view of the very strong persuasive authority in I
Congreso case in which the House of Lords had unanimously held that the
restrictive doctrine applied at common law. We are therefore of the view that
the restrictive doctrine should apply here although the common law position of
 this country could well be superseded and changed by an Act of Parliament
later on should our legislature decide to define and embody in a statute the
limits and extent of sovereign immunity in this country.
- The bold ruling of the Supreme Court of Malaysia is to be warmly welcomed
as it affirms the application in Malaysia of the restrictive theory of State
immunity, which is the modern and prevailing doctrine, and paves the way for
the progressive development of common law without sticking to the cut-out
date of 1956.
o POSSIBLE CONFLICT BETWEEN INTERNATIONAL LAW AND
MALAYSIAN MUNICIPAL LAW
- In Malaysia, the constitution is silent as to the primacy of international law
over municipal law or vice versa. There is, therefore, a possibility of a conflict
between a statute and a rule of international law. If there is such a conflict, the
general rule is that the statute shall prevail. P.P. v Wah Ah Jee is illustrative
of the point. The learned judge in this case stated the Courts here must take the
law as they find it expressed in the Enactments. It is not the duty of a Judge or
Magistrate to consider whether the law so set forth is contrary to international
law or not.
- It is quite obvious that PP v Wah Ah Jee followed the dictum in the English
case of Mortensen v Peters, where it was held that: In this court we have
nothing to do with the question of whether the legislature has or has not done
what foreign powers may consider a usurpation in a question with them.
Neither are we a tribunal sitting to decide whether an Act of the Legislature is
ultra vires as in contravention of generally acknowledged principles of
international law. For us an Act of Parliament duly passed by Lords and
Commons and assented to by the King, is supreme, and we are bound to give
effect to its terms.
- This idea is based on the common law principle of the ‘supremacy of an Act
of Parliament’ although there is a prima facie presumption that Parliament
does not intend to legislate in breach of international law. Sometimes, the
statute itself might provide for the avoidance of conflict. The statute may
expressly give primacy to the international obligation. In any case, as a general
rule, the court will upheld the statute made by the Parliament.
 - Nevertheless, if the statute is in conflict with a rule of international law, the
State will, on the international scene, incur liability for a breach of an
international obligation.
o STATE RESPONSIBILITY FOR A BREACH OF INTERNATIONAL LAW
- Although the national courts of a State, on the ground of independence of
judiciary, may disregard international law and make a decision which is
contrary to international law, the State has, on the international plane, to bear
the responsibility for the breach. Furthermore, there is a fundamental principle
of international law that: A State cannot plead a rule of or a gap in its own
municipal law as a defence to a claim based on a violation of its
international law obligation.
- Article 27 of the Vienna Convention on the Law of Treaties 1969 reaffirms
this principle in these terms: A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty.
- A breach of international law by a State entails international responsibility of
that State. International courts and tribunals have repeatedly affirmed this
principle.
- In the Rainbow Warrior case, for example, the Arbitral Tribunal stressed that:
any violation by a State of any obligation, of whatever origin, gives rise to
State responsibility.
- A recent Malaysian case illustrative of the point is MBF Capital Bhd. & Anor
v Dato’ Param Cumaraswamy. The facts of the case are the following. Dato’
Cumaraswamy, a Malaysian jurist, was appointed in 1994 by the United
Nations Commission on Human Rights as the Commission’s Special
Rapporteur on the Independence of Judges and Lawyers. As a result of an
article published on the basis of an interview which the Special Rapporteur
gave to a magazine (International Commercial Litigation), some companies in
Malaysia filed multi-million dollar defamation suits against him. The MBF
case is one of these defamation cases.
- The Special Rapporteur claimed immunity, invoking section 22 (b), Article VI
of the Convention on the Privileges and Immunities of the United Nations,
1946, to which Malaysia is a party. A certificate was issued by the Secretary
General of the United Nations, determining that the words which constituted
 the basis of the plaintiff’s complaint were spoken by Dato’ Cumaraswamy in
the course of his mission as a Special Rapporteur, and maintaining that he was
entitled to the immunities accorded to experts performing missions of the
United Nations.
- The Minister of Foreign Affairs of Malaysia had also issued a certificate under
section 7 of the International Organisation (Privileges and Immunities) Act
1992, endorsing his status and mandates as a Special rapporteur, but without
referring in any way to the Secretary General’s certificate and the status in
international law of the Secretary General’s determination as to the entitlement
of immunity of an officer or an expert on mission of the United Nations.
- The learned judicial commissioner ruled, inter alia: “That the Certificates as
issued by the Secretary-General and the Minister had no more probative
value than a mere opinion and in the event decided to disregard them and
the issue of immunity was a matter that was not capable of decision in a
summary manner, and so directed that the issue be determined at the trial of
the action.”
- The Court of Appeal upheld this decision.