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PIL Tutorial 1 - -----

Public International Law (Multimedia University)

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PUBLIC INTERNATIONAL LAW UPI7312 2110 (L2 ONLY)

Tutorial 1
1. Explain Public International Law. How would you distinguish Public International Law
with private International Law?

Definition:
- France v Turkey – PCIJ defined public international law as ‘international law governs relations
between independent states. The rules of law binding upon states therefore emanate from their own will
as expressed conventions or by usages generally accepted as expressing principles of law established in
order to regulate the relations between these co-existing independent communities or with a view to the
achievements of common aims.

- Public International Law is composed of the laws, rules, and principles of general application that deal
with the conduct of nation-states and international organisations among themselves as well as the
relationships between nation-states and international organisations with persons, whether natural or
juridical. Public International Law is sometimes called the "law of nations" or just simply International
Law. It should not be confused with Private International Law, which is primarily concerned with the
resolution of conflict of national laws, determining the law of which country is applicable to specific
situations

-example: public international law- human rights

Private: family issues

- In an 1860 textbook, Introduction to the Study of International Law, Theodore Woolsey began his
definition of international law by stating, "[n]ations or organized communities of men differ from the
individual men of a state, in that they are self-governed, that no law is imposed on them by an external
human power, but they retain the moral accountable nature, which lies at the foundation of a single
society." Over 150 years later, these concepts addressed by Woolsey have evolved and become more
explicit, growing into a set of doctrines, rules, and norms known as public international law.

- Public international law is the body of law created through the interactions between nations, or as the
Restatement of the Law, Third: Foreign Relations Law of the United States (Restatement Third)
explains, "International law is the law of the international community of states. It deals with the conduct
of nation-states and their relations with other states, and to some extent also with their relations with
individuals, business organizations, and other legal entities." It covers a range of activities; such as,
diplomatic relations, conduct of war, trade, human rights and sharing of oceanic resources.

-Public International Law is the body of legal rules, which applied between Sovereign States and other
International Personalities. Private International Law is also called as ‘Conflict of Law’ deals with cases
involving foreign element. In case of dispute between an individual citizen or State and Foreign
Element, where there is need to contact with foreign system of law, the Private International law will
apply.
https://www.srdlawnotes.com/2017/03/difference-between-public-international.html

- It encapsulates a variety of different legal subjects, including diplomatic relations, treaties,

international organizations, and customary international law. It largely governs and structures the

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interactions between nation states and international organizations. In certain instances, public
international law can also govern the legal interactions between nation states and individual citizens. It
should not be confused with private international law, which is concerned with the conflicts between
national laws and determining which national law to apply to specific situations.

- Public international law does not have a conventional enforcement framework, so no worldwide
policing organization exists to ensure that treaties are followed. Instead, nations subject themselves to
international law by adhering to treaties, and by accepting customary laws and agreed-upon general
principles of law. Mutual respect among nations and the understanding that a breach in any concept
could lead to retaliation from other nations, through economic or even military sanctions, generally
causes nations to follow the accepted standards of public international law.

Features Public Int. Law Private Int. Law

Subjects Public Int. Law is the body of legal rules, which Private Int. Law regulates relationship between
applied between Sovereign States and other private persons (Natural or legal) between two
international personalities. different States.

Private international law primarily concerns

disputes between individuals or businesses (not
nations) in situations where the law of more than
one nation may apply. This is often referred to as
international conflict of law. These situations
commonly arise through commercial
transactions undertaken by parties from separate
nations.
Sources Public Int. rules are outcome of international Private Int. Law rules are framed by State
customs and treaties. legislature
Execution Public Int. Law enforced by international Private Int. Law enforced by States executive.
pressure, sanctions etc.
Nature Both civil and Criminal More civil
Fields Fields of public international law include
criminal law, maritime law, the law of war,
human rights law, refugee law, and the law
established by treaties between nations.
Law In Public Int. Law there is no predetermined In Private Int. Law courts are predetermined.
Determinatio court.
n
Public international law, or the rule of nations, is Private international law, or conflict of laws on
historically defined as the system of law the other hand, is a framework that combines the
regulating diplomatic affairs. So this system is various laws from different countries. It
subject to only governments, and general addresses the issue of the applicability of
foreign organizations. The key emphasis is on international or domestic laws in the domestic
creating a broad-scale and a basic minimum courts.
legal order.

Major part deals with states and to a lesser Arises out of private transactions between

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extent with individuals individuals, companies or incorporation from

one country and their counterparts in another
country
Customary rules of international law may be Private international law decides which state law
considered as part of the municipal law of a should apply in a dispute and whether or not to
state enforce foreign judgement

2. What are the sources of International Law? Discuss

Tb pg 69

LINK (FOR BELOW)

The International Court of Justice (ICJ) identifies the sources of international law in the ICJ Statute,
Article 38 which reads: 1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply
(a) Treaties between states;
(b) Customary international law derived from the practice of States;
(c) General principles of law recognized by civilised nations; and, as subsidiary means for the
determination of rules of international law; and
(d) Judicial decisions and the writings of “the most highly qualified publicists”.

Source of Malaysian law: Subsidiary legislation, federal constitution, judicial decision, Common law
They no need follow precedent, can look at it, but they have their the right not to follow.
Article 38(1)(d) refers to judicial decisions as a subsidiary means for the determination of rules of law.
In contrast to the position in common law countries, there is no doctrine of binding precedent in
international law.

3. What is international customary law? Can customary be legal enforced.

Slides:
Customary international law V an act of Parliament
• If there is a conflict between a rule of customary international law and an Act of Parliament, the
Act of Parliament prevails.
• Any rule of customary IL, which is inconsistent with a British statute, will not be enforced in the
British courts.
• The domestic legislation will be upheld while the State will incur liability on the international
scene.

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-malaysian accepted as practice

The Malaysian Practice

• Customary International law
• It is an established rule that customary international law is binding on all states.
• So where a domestic court disregard this, they will be in breach of international law.
• If there is a conflict between international law and a Malaysian statute, it is generally accepted
that the statute shall prevail. This affirms the supremacy of the Malaysian parliament as the
Malaysian court sees it.
• Nevertheless Malaysia will still be liable for breach of its international obligations.
• Case: MBF Capital Bhd. & Anor v Dato Param Cumarasamy (1997)

Textbook: pg72
(pg73) There are disagreements as to the value of a customary system in in- ternational law. Some
writers deny that custom can be significant today as a source of law, noting that it is too clumsy and
slow-moving to ac- commodate the evolution of international law any more, while others declare that it
is a dynamic process of law creation and more important than treaties since it is of universal application.
Another view recognises that custom is of value since it is activated by spontaneous behaviour and thus
mirrors the contemporary concerns of society. However, since inter- national law now has to contend
with a massive increase in the pace and variety of state activities as well as having to come to terms with
many different cultural and political traditions, the role of custom is perceived to be much diminished

Customary international law is one component of international law. Customary international law refers
to international obligations arising from established international practices, as opposed to obligations
arising from formal written conventions and treaties. Customary international law derives from "a
general practice accepted as law". Customary international law results from a general and consistent
practice of states that they follow from a sense of legal obligation. Two examples of customary
international laws are the doctrine of non-refoulement and the granting of immunity for visiting heads of
state.
LINK

Both treaty law and customary international law are sources of international law. Treaties, such as the
four Geneva Conventions of 1949, are written conventions in which States formally establish certain
rules. Treaties bind only those States which have expressed their consent to be bound by them, usually
through ratification.
Customary international law, on the other hand, derives from " a general practice accepted as law " .
Such practice can be found in official accounts of military operations but is also reflected in a variety of
other official documents, including military manuals, national legislation and case law. The requirement
that this practice be " accepted as law " is often referred to as " opinio juris " . This characteristic sets
practices required by law apart from practices followed as a matter of policy, for example.

In principle, there is no difference in the enforcement of treaty law and customary international law, as
both are sources of the same body of law.

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First and foremost, military commanders have the responsibility to ensure that their troops respect the
law. In case of violation, international humanitarian law can be enforced through diplomatic means,
including by international organizations, such as through measures adopted by the UN Security Council.
Another means to enforce the law is its application by national and international courts and tribunals, for
example the trial of an individual responsible for a violation.
https://www.icrc.org/en/doc/resources/documents/misc/customary-law-q-and-a-150805.htm

4. Malaysia had continuously occupied an island, for more than 100 years which was mostly
inhabited by fishermen. The island borders Singapore, Indonesia and is also close to
Christmas Island which is an Australian territory.
Recently a private company discovered rich minerals close to shores of the Island and was
in the midst of negotiating with the Malaysian government on mining rights.

However, when the news of this discovery was made known, the government of Indonesia,
Singapore and Australia made claims to the island. Of these countries, only Indonesia had
objected to the Malaysian since its independence in 1945.
With reference to international law explain the legitimacy of the claims by these countries.

(You may write down the answer to question 4 and submit to me)

https://www.cna.org/cna_files/pdf/iop-2014-u-008434.pdf
https://digitalscholarship.unlv.edu/cgi/viewcontent.cgi?article=1094&context=award
https://cdn.vanderbilt.edu/vu-wp0/wp-content/uploads/sites/78/2019/07/12052304/Imogen-
Saunders.pdf

Article 77 of UNCLOS gives a coastal state the sovereign right to explore and exploit the natural
resources on its area of the continental shelf.

-need to sign a treaty/convention with all countries involved regarding whether the island belongs to
which country, so such country reserves the right of the island and other countries are bound by the
treaty or convention.
-conduct negotiations, to solve the dispute. The use of arbitration and judicial settlement becomes
necessary when diplomacy fails to resolve a contentious international dispute.

-using international law, it stands from agreement, use treaties

Malaysia enter treaty to strengthen economy relationship
Charter of UN settle by peaceful means
Malaysian claim on this island: they don’t really have the rightful claim, international law requires
consent.
-malaysia occupied actually have right, can voice up, its like msia actually occupied it but they suddenly
claim for it because the island is valuable.

Indonesia get independence from Dutch.

Pulau batu puteh was a Malaysian island but under Singapore’s control.
Dispute was settled in international court of justice, case was voluntarily brought to ICJ, sovereignty of
the island belongs to Singapore.

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