PUBLIC INTERNATIONAL. APractical Approach. 2nd edition ABDUL GHAFUR HAMID. Hall KHIN MAUNG SEIN. I'n'llIl<"(,

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2 PUBLIC 2nd edition INTERNATIONAL LA APractical Approach ABDUL GHAFUR KHIN MAUNG SEIN PEARSON I'n'llIl<"(, Hall

3 Published by Prentice Hall Pearson Malaysia Sdn. Bhd. Lot 2, lalan 215, Offlalan Templer, Petaling laya, Selangor, Malaysia Tel: Fax: Pearson Education offices in Asia: Bangkok, Beijing, Hong Kong, Jakarta, Manila, Kuala Lumpur, New Delhi, Seoul, Singapore, Taipei, Tokyo. Printed in Malaysia First print 2007 ISBN: Public International Law 2 Dr. Abdul GhafurHamid@Khin Maung Sein Copyright 2007 Pearson Malaysia Sdn, Bhd. All rights reserved. This publication is protected by Copyright and permission should be obtained from the Publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission in any fann or by any means, electronic, mechanical, photocopying, recording or otherwise. For information regarding permission(s), write to: Rights and Pennissions Department.

4 PREFACE FOREWORD TABLE OF CASES TABLE OF ABBREVIATIONS CONTENTS 1 THE NATURE AND DEVELOPMENT OF INTERNATIONAL LAW I. I The nature of international law I 1.2 International law as 'law' Enforcement ofinternational law 9 IA Development ofinternational law 14 IA.I The origin of international law Islamic international law 15 IA.3 The formation of the present-day international law 17 IAA Attitude ofdeveloping States towards international Law Conclusion 21 2 THE SOURCES OF INTERNATIONAL LAW Art. 38 of the Statute ofthe ICJ Treaties International custom 28 2A General principles oflaw Judicial decisions and writings ofjurists Other possible sources The hierarchy of sources Codification ofinternational law Conclusion 52 3 THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW National law before international courts and tribunals International law and national law: doctrinal debate. 57

5 vi 3.3 The application ofinternational law in the national legal systems The British practice Application ofinternational law in Malaysia The practice ofother States Conclusion 83 4 THE SUBJECTS OF INTERNATIONAL LAW The concept ofinternational personality States as subjects ofinternational law International Organizations rndividuals and corporations Insurgents and belligerents National liberation movements Recognition STATE TERRITORY The acquisition ofsovereignty over territory: Title to territory Occupation What is terra nullius? III Effective occupation Decided cases on peaceful and effective display of State authority Prescription Conquest and Annexation Cession Accretion Other principles significant in territorial disputes Conclusion STATE JURISDICTION Nature ofjurisdiction General principles on which criminal jurisdiction is claimed Territorial principle 145

6 vii Nationality principle Protective principle Universality principle Passive personality principle Conflict ofjurisdiction 6.3 Jurisdiction over persons apprehended in violation of international law 6.4 Extradition 7 IMMUNITY FROM JURISDICTION 7.1 State immunity The absolute and the restrictive theories of State immunity Distinction between 'sovereign act' and 'commercial act' The Malaysian practice The UN Convention on Jurisdictional Immunity ofstates and Their Property, Head ofstate immunity (State officials immunity) 7.2 Diplomatic immunity Establishment ofa diplomatic mission Inviolability Immunity from local jurisdiction Persons entitled to diplomatic immunity Duration of immunity The Malaysian Practice 7.3 Immunity ofinternational organizations 8 THE LAW OF TREATIES 8.1 The Vienna Convention on the Law of Treaties, Definition of 'treaty' 8.3 The conclusion of treaties Treaty-making capacity Steps to be taken in the conclusion oftreaties Adoption and authentication Consent to be bound by a treaty Reservations 149 ISO

7 viii Entry into Force Observance and Application oftreaties Interpretation oftreaties Invalidity of Treaties Termination ofthe operation of treaties THE LAW OF STATE RESPONSIBILITY Nature ofstate Responsibility The elements ofstate responsibility Attribution ofconduct to the State Conduct ofstate organs Responsibility for ultra vires acts Conduct directed or control by a State Conduct ofinsurrectional or other movement Conduct acknowledged and adopted by a State as its own Conduct ofprivate persons - not attributable Breach ofan international obligation Circumstances precluding wrongfulness (defences) Legal consequences ofan internationally wrongful act Invocation ofresponsibility: Responses by the injured State and other States Treatment offoreign nationals National treatment or international minimum Standard? Admissibility ofclaims INTERNATIONAL LAW OF TIJE SEA The Convention on the Law ofthe Sea The Territorial Sea Breadth ofthe territorial sea Baselines and measurement of the territorial sea The right ofinnocent passage Coastal State's legislative jurisdiction Coastal State's enforcement jurisdiction 30I 10.3 The Contiguous Zone The Exclusive Economic Zone 304

8 ix 10.5 The Continental Shelf The regime of the High Seas The freedom ofthe High Seas The maintenance oforder on the High seas Piracy Right ofhot Pursuit The regime ofdeep seabed mining Settlement ofdisputes Malaysia and the Law ofthe Sea Territorial sea ofmalaysia Continental shelfofmalaysia EEZ ofmalaysia Malaysian Maritime Enforcement Agency INTERNATIONAL HUMAN RIGHTS LAW The Concept ofhuman Rights Categorization ofhuman rights Universalism and cultural relativism The Place ofindividuals in traditional international law The evolution ofinternational human rights law Enforcement ofinternational human rights law: universal level Enforcement ofinternational human rights law: regional level Human rights and customary international law 365 II.7 Human rights and international criminal law THE LAW OF THE UNITED NATIONS The Charter and the foundation of the United Nations The General Assembly The Security Council Composition Voting Procedure: veto Power Functions and Powers Enforcement action under Chapter VII ofthe Charter Practice during the Cold War 388

9 x Practice after the end ofthe Cold War Economic and Social Council and Trusteeship Council The International Court ofjustice The Secretariat After September II: The rise ofunilateralism, and the future ofthe United Nations PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES I The Principle ofpeaceful Settlement Negotiation, Mediation, Inquiry and Conciliation Arbitration International Court ofjustice: Composition and Access to the Court Procedure Jurisdiction of the Court in contentious cases Preliminary objections: Decision on jurisdiction and admissibility Other incidental proceedings Enforcement ofjudgments Advisory Jurisdiction LEGAL REGULATION OF THE USE OF FORCE The Law before The Law after 1945: Prohibition ofthe use offorce Right ofself-defence ofstates Self-defence as a response to an armed attack Anticipatory self-defence Collective use offorce under Chapter VII of the Charter Intervention and the use offorce Humanitarian intervention Self-determination September II terrorist attacks and the law on the use offorce 463

10 xi 15. INTERNATIONAL HUMANITARIAN LAW The nature and development ofinternational humanitarian law International armed conflict Non-international armed conflict Methods ofenforcing the law Repression ofbreaches Responsibility for breaches Prosecution and punishment ofwar criminals INTERNATIONAL ECONOMIC LAW Nature and sources ofinternational economic law Bretton woods system and international economic institutions International monetary law The International Monetary Fund (lmf) The World Bank and its affiliates International investment law Expropriation offoreign property Legal requirements ofa lawful expropriation Compensation for a lawful expropriation Bilateral Investment Treaties (BITs) The law ofthe World Trade Organization Institutional aspects ofthe WTO The legal framework ofthe WTO Multilateral Agreements on Trade in Goods: GATT General Agreement on Trade in Services (GATS) Agreement on Trade Related Aspect of Intellectual Property Rights (TRIPS) Dispute Settlement Mechanism Trade Policy Review Mechanism (TPRM) INTERNATIONAL ENVIRONMENTAL LAW Pollution and devastation of the environment: a major concern 523

11 xii 17.2 Protection ofthe environment: a challenge to traditional international law Sources ofinternational environmental law Mechanisms for ensuring compliance The WTO, Liberalization oftrade and protection ofthe environment 531 BIBLIOGRAPHY 535 INDEX 549