INTERNATIONAL LAW IN

INTERNATIONAL
RELATIONS AND SECURITY
Wan Sharina Ramlah W.A.A. Jaffri
LL.B (Hons), East Anglia
LL.M (International Trade), Newcastle u. Tyne
Bar-at-Law, Lincoln’s Inn, London
 OVERVIEW
• Definition and Functions of International Law
• Roles, Functions & Scopes of International Law
• Relationship between Municipal and International Laws
• International Legal Personality
• International Dispute Settlement Methods
• Sources of International Law
 OVERVIEW

• Operations of International Law

• Examples – Territorial Disputes
• Relationship between ICJ and UNSC
• Conclusion
 Definition of international law
“A body of rules and principles which binds international legal personalities in
their relationships with each other, created primarily by states, for states.”
Unlike other types of law, IL does not have –
(a) Formal source – Fixed law-making procedures and the power which passes
the law
(b) Material Source – Fixed codified source to refer to

To get a credible and an authoritative version of the law – need both formal
and material sources
 Functions of international law
(1) To safeguard the rights of States
- Sovereignty
- Equality
- Political independence
- Territorial independence
(2) To ensure States adhere to their responsibilities and duties vis a vis
other states
 SCOPE of public international law
• Sovereignty and Privileges of States
• Territorial Rights Transnational organized Crimes
• Maritime Issues Terrorism
• Airspace Immigration
• Human Rights Customs
• Trade and Economics War and Peace
• Natural Resources Environment
• Social matters …and the list goes on…
Relationship between international law and
municipal law
If there is a conflict between IL and ML, which one prevails?
MONISM - “ IL and ML are two components within one legal body, operating within the same
sphere of influence and relating to the same legal subject, i.e. humans. In the final analysis, states
consist of humans, therefore IL also deals with humans.
Conflicts are inevitable => IL takes priority over ML.
Kelsen – The concept of “Grundnorm” (the basis of all laws).
Lauterpacht – IL guards human rights more, compared to ML.

DUALISM – IL and ML are totally independent of each other. Different in terms of Source, Purpose,
Substance. In municipal courts, apply ML. In International Tribunal, apply IL. For IL to become part
of ML, has to undergo due legislative process. Eg. Approval of parliament, etc.
 International legal personalities
• Subjects which have locus standi under international law
• (i) States
• (ii) International Organizations (limited by their respective
Charters)
• (iii) Individuals (limited by international conventions conferring
rights and duties)
• (iv) Non-state actors
 International legal personalities
ELEMENTS OF STATEHOOD -
Article 1 of the 1933 Montevideo Convention on Rights and Duties of States
provides 4 elements of Statehood –
(i) Defined Territory
(ii) Permanent Population
(iii) Government
(iv) Capacity to enter into relations with other State
QUESTION : IS THE LIST EXHAUSTIVE?
 International legal personalities
ELEMENTS OF STATEHOOD -

IS RECOGNITION OF STATES A PRE-REQUISITE?

 International legal personalities
ELEMENTS OF STATEHOOD -

IS RECOGNITION OF STATES A PRE-REQUISITE?

CONSTITUTIVE THEORY => YES

DECLARATORY THEORY => NO
 International legal personalities

CONSTITUTIVE THEORY => YES

- Explains position of the State of Palestine
- According to this theory irrespective of whether an entity is lacking in the
elements required for statehood, it still becomes a state when other states
recognize it as a state.
- Even if you fulfill all the criteria, but, you are not recognized by other states,
you are not a State. E.g. Taiwan.
 International legal personalities

DECLARATORY THEORY => NO

* Recognition does not have any constitutive effect.
* As long as an entity has fulfilled all the criteria of statehood, it automatically
becomes a state.
* Act of recognition is just a formality.
* Lauterpacht – “There’s a legal obligation on states to recognize entities
which have fulfilled all the criteria”.
ISSUE : What about State’s sovereign rights to exercise political decisions?
 characteristics of
international law
• No fixed formal and material sources due to State Sovereignty
• Cannot subject a state to something which it has not consented to
• Equal status of states – no supreme body which can legislate and
subject a state to it
• So, how do we resolve disputes between states effectively?
 INTERNATIONAL DISPUTE
• SETTLEMENT
Article 2(3) of the UN Charter –
“…all member states have to settle their international disputes by
peaceful means in such a manner that international peace and security,
and justice, are not endangered.”
Article 33 of the UN Charter provides alternatives peaceful dispute
settlement for states to choose from –
(a) Diplomatic methods
(b) Adjudicative methods
 INTERNATIONAL DISPUTE
SETTLEMENT
(a) Diplomatic methods :
Negotiation, enquiry / fact-finding, mediation / use of good office,
conciliation
Flexible, mainly bilateral in nature and non-binding. No third parties involved
in settling the disputes – only propose settlement.
(b) Adjudicative methods :
Arbitration and judicial settlement (ICJ, ECJ, etc.)
Dispute resolved based on IL and binding
 Adjudicative method - ICJ
• International Court of Justice (World Court)
- Judicial arm of the UN
- All member states are automatically parties to the 1945 Statute of the
ICJ
- Members promise to comply with decision of the Court
- The UNSC may undertake enforcement measures if this promise is
breached
 Adjudicative method - ICJ
• Seat at The Hague (The Peace Palace), Netherlands
• Composed of 15 judges (different UN member states) – judicial
officers / judges in own countries, law professors, practicing lawyers.
• 5 from Permanent Members of UNSC, 2 Western Europe, 2 South
America, 1 Eastern Europe, 5 Africa & Asia
• Independent from their governments – only ICJ itself can dismiss a
judge. NOT the government of state of origin
 Adjudicative method - ICJ
• ICJ will only have jurisdiction if both / all disputing parties agree to
submit to its jurisdiction
• Article 36 of the ICJ Statute –
Expressed consent (ante hoc or ad hoc) -
Ante hoc – clause in Treaty between States A and B specifically referring
any potential disputes to the ICJ (Compromissory Clause)
Ad hoc – via Special Agreement (post-dispute)
 Adjudicative method - ICJ
Consent forum prorogatum
Eg. State A refers a dispute to ICJ via a unilateral application – the other party signifies
its consent to the jurisdiction.
Express consent – official statement
Implied consent – the other party defends the case on the merits without challenging
ICJ’s jurisdiction.
Eg. Corfu Channel Case [1949]–
UK initiated claim against Albania – mines planted in CC damaged and
destroyed British vessels. Letter sent by Albanian government to Court Registrar
negating fault considered as consent given by Albania
 Adjudicative method - ICJ
Functions –
(i) To hear and determine cases involving interpretations and
applications of international law and principles in accordance with
the UN Charter
(ii) Advisory – no disputes, but asked to resolve sweeping questions of
IL
 Adjudicative method - ICJ
Sources of International Law –
Article 38 of the 1945 ICJ Statute – Court may refer to -
(i) Treaties – recognized by disputing states
(ii) Customary International law – as evidence of general practice accepted as law
(iii) General Principles of Law applied by civilized nations
(iv) Judicial decisions and legal writings – as subsidiary means

Article 38(2) – Court may decide ex aequo et bono (according to the right and good) if
the parties agree thereto.
 Sources of international law
TREATIES
International Agreements, Conventions, Protocols
Closest analogy to legislation that international law has to offer
“An agreement which is legally binding, signed by, and between two or more
international law subjects which are recognized as having the capacity to enter
into such agreements”.
Proactive – provide for future possibilities of disputes
Reactive – agreement signed to settle disputes
 Sources of international law
TREATIES
Important source of IL :
- Clarity
- At negotiation stage states may voice concerns over certain issues
- May ascertain and solidify unwritten state practice
- Process of negotiation creates conducive diplomatic environment
 Sources of international law
TREATIES
Pacta sunt servanda –
“Agreement must be kept”
Every treaty in force is binding upon signatory parties
General rule – only signatory states are bound
 Sources of international law
TREATIES
Bilateral
Multilateral
Quasi-contractual : (i) self-executing (specific offer and
consideration)
(ii) non self-executing (e.g. Extradition
Treaty)
Quasi-legislative : Multilateral – dictate actions and behavior of
parties for a significant period of time (e,g. 1958 Geneva
Convention on the High Seas)
 Sources of international law
TREATIES
Treaty Formation :
(i) Negotiation (Rounds)
(ii) Adoption (Draft Text of Treaty finalized)
(iii) Open for signature and signing
(iv) Acceptance : in principle => Ratification (Malaysia follows the Doctrine of Transformation. Rules of IL do
not become part of Municipal Law UNLESS they are transformed into ML by means of an Act of
Parliament) OR Accession
(v) Reservations re certain provisions of Treaties
(vi) Entry into Force – depends on criteria agreed upon by signatory states
(vii) Registration – UN Secretariat or any related IO. UN publishes UN Treaty Series annually
 Sources of international law
TREATIES
Termination of Treaties –
(i) Invalidity – Eg. Unequal Treaties – rampant in 17th and 18th Centuries
Article 51 of the 1969 Vienna Convention on the Law of Treaties –
“… coercion upon State's representative expressing the latter's consent to
be bound, entails the absolute nullity of the treaty.”
 Sources of international law
TREATIES
Termination of Treaties –
(ii) Change in circumstances – fundamental changes – force majeure (not
within the control of parties. Unforeseen circumstances which prevent
parties from fulfilling obligations under a treaty). Treaties may be
suspended or terminated depending on the scale of change concerned.
(iii) Mutual agreement
(iv) Desuetude
(v) In violation of jus cogens
 Sources of international law
CUSTOMARY INTERNATIONAL LAW
• Unwritten laws.
• Two elements must be present concurrently :
• (i) State Practice AND
• (ii) Opinio Iuris sive necesitatis
 Sources of international law
CUSTOMARY INTERNATIONAL LAW
• (i) State Practice
What states do and say / do not do and do not say 
We find / establish state practice via books, journals, statements made by state representatives, statements
made in legislative bodies of states, Press conferences, international conferences, municipal laws,
scholarly writings, etc.
Practise by a significant number of states, over a significant duration of time, uniform, consistent
 Sources of international law
CUSTOMARY INTERNATIONAL LAW
(i) Opinio Juris sive necesitatis
Psychological element
States must have the conviction or belief that the practice concerned is actually
mandated by international law, and that they are under a legal duty to abide to the said
practice.
(Eg. Not just being a good neighbor and out of courtesy follow neighbor’s action,
etc.)
 Sources of international law
CUSTOMARY INTERNATIONAL LAW
Creation of Customary International Law – in situation where there is
no law governing certain matters OR in situation where existing laws
may be changed

* Process of Action and Reaction *

 Sources of international law
CUSTOMARY INTERNATIONAL LAW
New claims => Accept by majority (Expressly or Impliedly)=>
(with all elements present) => CIL , but, not binding on persistent
objector

Silence / No reaction = Implied acceptance, acquiescence of new CIL.

 Sources of international law
TREATY CONTRADICTS CIL – which one prevails?
ALWAYS REMEMBER – LAW IS A DYNAMIC THING – it evolves
and changes to suit the need of the ever changing international society
MOST would say that Treaties will prevail –
- Clearer
- Documented
 Sources of international law
WHEN A TREATY CONTRADICTS CIL – which one prevails?
Process of DESUETUDE –
Treaties become obsolete and lose their priorities over the new state
practice
General rule : “The latter in time prevails”
 OPERATIONS OF INTERNATIONAL
LAW IN TERRITORIAL DISPUTES
• Territorial disputes more often than not will lead to threat to regional
or global security
• Questions of State Sovereignty and National interests means that
States are not open to negotiate when it comes to questions of
territorial acquisition and territorial sovereignty
• Driven by Political and Economics interest
• Scarcity of land – no more Res Nullius
 OPERATIONS OF INTERNATIONAL
LAW IN TERRITORIAL DISPUTES
State Territorial Sovereignty –
Land, Internal Waters, Maritime Territory / Territorial Sea, Territorial
airspace within said territorial limitations
• Hybrid between State Sovereignty and Jurisdiction –
Continental Shelf, the Exclusive Economic Zone
• Res Nullius
• Res Communis – The High Seas , The Antarctics
 OPERATIONS OF INTERNATIONAL
LAW IN TERRITORIAL DISPUTES
Territorial Acquisition –
No more Res Nullius : No more acquisition by Occupation method
No more via Conquest : Use of Force not allowed under Article 2 (3)
UN Charter

Contemporary disputes mainly attempts to claim based on method of

PRESCRIPTION
 OPERATIONS OF INTERNATIONAL
LAW IN TERRITORIAL DISPUTES
PRESCRIPTION
Acquisition of territory under the sovereignty of another state with consent /
without protest from the rightful sovereign.

Elements
(i) Effective Occupation – Corpus & Animus Occupandi
(ii) Significant period of time
(ii) Without effective protest – Immediate, public, serious
 OPERATIONS OF INTERNATIONAL
LAW IN TERRITORIAL DISPUTES
PRESCRIPTION
CASE STUDIES –

(1) Island of Palmas [1928] PCA

(2) Temple of Preah Vihear [1961] ICJ
(3) Pulau Batu Puteh / Pedra Branca [2008] ICJ
 OPERATIONS OF INTERNATIONAL
LAW IN TERRITORIAL DISPUTES
THREAT TO REGIONAL AND GLOBAL SECURITY
• The Spratly Islands (Malaysia, Taiwan ROC, China PRC, Philippines,
Vietnam, Brunei, Indonesia)
• Dokdo Island (S. Korea v Japan)

HOW BEST TO RESOLVE DISPUTES?

DIPLOMATIC V ADJUDICATIVE?
CHALLENGES?
 OPERATIONS OF INTERNATIONAL
LAW IN DISPUTES
CHALLENGES
(i) Lack of enforcement bodies and mechanisms
(ii) State Sovereignty can be impeding
(iii)Lack of Compliance
 OPERATIONS OF INTERNATIONAL
LAW IN DISPUTES
ENFORCEMENT OF JUDGMENT -
(i) Self-help – only in accordance with Article 2(3) and 2(4) of UN
Charter regarding use of force
(ii) Cooperation of third state
(iii)Recourse to municipal courts
(iv)Enforcement by international institutions
 Relationship between ICJ and UNSC
• UNSC exercise its primary function of maintaining peace and security via –
(i) Peaceful settlement under Chapter VI of UN Charter : fact-finding, setting
up Commission of Inquiry & Investigative Commission, assist in
negotiation, refer dispute to regional organization, refer disputes to the ICJ
(ii) Action under Chapter VII – adopt economic sanctions (Article 41), military
measures (Article 42) where there’s threat to or breach of peace, or actual
aggression (i.e. force has actually been used). Eg. Iraqi invasion of Kuwait
(1990), Argentina invaded British Falkland Islands (1982)
 Relationship between ICJ and UNSC
• UNSC exercise its primary function of maintaining peace and security via –
(iii) ICJ seeking enforcement of their decision if there is non-compliance of
ICJ’s ruling under Article 94 of UN Charter
UNSC empowered to recommend / decide upon meausres
to be taken to give effect to the judgment
Problem : If aggressor state is a permanent member of the
UNSC. E.g. Nicaragua v USA [1986]
 Relationship between ICJ and UNSC
• Can the ICJ Challenge decisions made by the UNSC?
• Can the ICJ review UNSC’s actions?

No provisions relating to these questions in the ICJ Statute

Some argue that as ICJ is UN’s principal judicial body, should have
the role of carrying Judicial Review of actions taken by UNSC.
 Relationship between ICJ and UNSC
• QUESTION –
• How significant and relevant is the ICJ in today’s framework on
international dispute settlement if they cannot govern the UNSC?
 CONCLUSION
• International disputes more often than not will cause international security
threats
• Under UN Charter, Disputes are to be resolved by adopting peaceful
methods, i.e. by adopting diplomatic measures or adjudicative measures
• Diplomatic methods may be ineffective as they are flexible and non-binding
 CONCLUSION
Problems with adjudicative measures –
- State sovereignty may limit its effectiveness
- Sources of international law – very dynamic, only guidelines
- No legislative bodies, no effective enforcement bodies
- UNSC’s decisions are very much politically motivated, rather than legally inclined

HOW DO WE ENSURE ICJ’s RELEVANCE in CONTEMPORARY IR?

 THANK YOU

ANY QUERIES, PLEASE FEEL FREE TO E-MAIL ME –

wanshana@yahoo.com